Back
2016 MarsdenLR 2124
HIGH COURT (MIRI)
LEE HENG CHEONG, J
Messrs Tai Choi Yu & Co Advocates (suing as a firm and TAI CHOI YU as sole-proprietor) – Plaintiff
Versus
The Court of Appeal & Ors – Defendant
SUIT NO MYY-22NCVC-14/8-2015(HC)
The Attorney General is mandated to represent judges in their official capacity to uphold judicial integrity and ensure proper legal defense against claims challenging their judicial actions.
Headnote:(A) Rules of Court 2012 - Order 18 Rule 19 - Application to set aside Defendants' Memorandum of Appearance; Plaintiff contends representation by Federal Attorney-General is unlawful due to separation of powers. Court held that representation by Attorney General is necessary to protect judiciary's integrity. (Paras 1-24)
(B) Legal representation of judiciary members - Duty of Attorney General to represent judges in their official capacity, ensuring judicial independence and integrity against claims challenging their actions in judicial proceedings. (Paras 18-23)
Facts of the case:
Plaintiff sought declaratory relief against Defendants, judges of the Court of Appeal, claiming breaches of duty in relation to a previous court order. (Paras 3-4)
Findings of Court:
Court found no merit in Plaintiff's application, affirming the Attorney General’s right to represent judges to uphold justice. (Paras 19-22)
Issues: Whether Defendants can be represented by the Attorney General, and the validity of claims against the Defendants regarding their judicial capacity. (Paras 15-18)
Ratio Decidendi: The representation by the Attorney General was held to be lawful and necessary to protect the judicial process and to defend judges acting in their official capacity. (Paras 18-23)
Result: Application dismissed with costs.
| Table of Content |
|---|
| 1. application for order against representation legality. (Para 1 , 2) |
| 2. factual background of the plaintiff's claims. (Para 3 , 4 , 5 , 6 , 7) |
| 3. court's reasoning regarding affidavit evidence. (Para 8 , 9 , 11 , 12 , 14 , 15) |
| 4. consideration of defendants' representation legality. (Para 16 , 17) |
| 5. court's findings on the role of the attorney general. (Para 18 , 19 , 20 , 21 , 23) |
GROUNDS OF ECISION
[In respect of Enclosure 6]
INTRODUCTION
[1]Enclosure 6 is an application by the Plaintiff for an order that the Defendants’ Memorandum of Appearance filed by the Federal Attorney-General’s Chambers be set aside and/or struck off or that the purported representation of the Defendants by the Federal Attorney-General’s Chambers be struck out or deleted under Order 18 Rule 19 Rules of Court 2012 [“ ROC 2012”]
[2]The grounds of the above Notice of Application are :
[i]That the 1st Defendant is an independent arm established under the constitution on the principle of separation of powers of [1] the legislative, [2] the judiciary and [3] the executive and therefore the representation by the Federal Attorney-General’s Chambers is unlawful, illegal and unconstitutional;
[ii]That the 2nd and 3rd Defendants are not public servants or public employees and they do not come under the cognizance of the Public Services Commission and the Rules and Regulations thereto;
[iii]The 2nd and 3rd Defendants hold office under contract in their personal capacities and are sued in their personal capacities and therefore they cannot be represented by the Federal Attorney-General’s Chambers; and
[iv]Being independent contractees, the 2nd and 3rd Defendants will be beholden or seen to be beholden to the executive arm of the Government of Malaysia if so represented and therefore the 2nd and 3rd Defendants representation by the Federal Attorney is a nullity, null and void and ultra vires the Constitution and not in accordance with the law
BACKGROUND
[3]In his Statement of Claim, the Plaintiff’s claims for the following orders and reliefs:-
[i]An Order that High Court Suit No.MYY-22-157-2013 be reinstated and to be reverted back to the High Court for hearing on its merits and on quantum meruit or on such terms as the High Court deems fit and just;
[ii]A declaration that the said Order dated the 14.08.2014 in Court of Appeal Civil Appeal No.Q-02(IM)-188-01/2014 is a nullity, null and void or void ab initio on the ground that it is unlawful being a deprivation or denial of access to the Courts, illegal and against public policy and is ultra vires the constitution, arbitrary and oppressive and a gross miscarriage of justice or in breach of established elementary rules of natural justice and further, with no reason given and without the written Grounds of Decision;
[iii]A declaration that the 2nd Defendant acted in bad faith or was reckless or did not in good faith believe that she had jurisdiction to grant the said Order with no reason or Grounds of Decision given or for her refusal and inability to furnish the Grounds of Decision;
[iv]A declaration that the 3rd Defendant acted in bad faith or was reckless or did not in good faith believe that she had had jurisdiction to grant the said Order with no reason or Grounds of Decision given or for her refusal and inability to furnish the Grounds of Decision;
[v]A declaration the 2nd and 3rd Defendants are unfit to be judges on the grounds of bad faith, recklessness or absence of good faith and for their refusal to discharge their duties to give reasons or to furnish their reasoned Judgment for the said Order.
[4]The Plaintiff’s claim herein arose out of a matter in which he was the Plaintiff in Miri High Court Suit No. MYY-22-15/7-2013 [“the said 2013 Suit”] between his law firm, Advocates v. Ting Sie Chung @ Ting Sieh Chung and his appeal to the Court of Appeal, was struck out by an Order of the Court of Appeal [“the said Court of Appeal Order’] in Civil Appeal No. Q— 02(IM)-188-01/2014 on the 14.08.2014.
[5]The said Cou
