JUDGMENT

Mohamed Dzaiddin FCJ:

Both appeals arose from the decision of the Court of Appeal given on 17 June 1998 which allowed an appeal of Sugumar Balakrishnan, the respondent herein, against the decision of Ian Chin J of the High Court Kota Kinabalu made on 26 December 1997 dismissing his application for an order of certiorarito quash the Director of Immigration Sabah's Notice of Cancellation of Entry Permit and its decision to cancel the respondent's entry permit dated 12 November 1997. (The State Authority Sabah is the appellant in Appeal No. 01-1-99 and Sugumar is the appellant in Appeal No. 01-2-99. Hence, reference to parties herein is according to Appeal No. 01-1-99).

Factual Background

The respondent is a Negeri Sembilan-born Malaysian who first went to Sabah in August 1975 to work as a teacher. Later he qualified as a lawyer and since 1985 he has been practising law in the State under a work pass issued to him under reg. 16(1) of the Immigration Regulations 1963. As he is not a person belonging to Sabah under s. 71(1) of the Immigration Act 1959/63(the Act), he is required to obtain a pass to enter and remain in Sabah under s. 66(1)of the Act. Sometime in 1995 he applied for an entry permit which was granted to him on 27 December 1995 for a period of two years. It is common ground that on the completion of two years, the respondent would be treated as belonging to Sabah under s. 71(1). However, on 12 November 1997, which was about six weeks before the expiry of the two-year period, the respondent was served with a notice of cancellation of entry permit dated the previous day under s. 65(1)(c) of the Act. This notice was signed by the Director of Immigration Sabah (the director) under the direction of the State Authority pursuant to the powers conferred under s. 65(1) of the Act. The notice states as follows:

NOTICE OF CANCELLATION OF ENTRY PERMIT

Section 65(1)(c) Immigration Act 1959/63

(Amended 1997)

To: Sugumar Balakrishnan of Kota Kinabalu.

Whereas you, Sugumar Balakrishnan I/C No 4548121, has been granted entry permit to reside in Sabah videRef. No. CIM/EP/21072 issued on 27 December 1995 at Kota Kinabalu.

NOW, KNOW YOU, That I, Abdullah Sani bin Sulaiman, State Director of Immigration, Sabah by virtue of the directive by the State Authority of Sabah under s. 65(1)(c) of the Immigration Act 1959/63do hereby forthwith cancel the entry permit issued to you and your presence in the State of Sabah is declared unlawful.

Upon receiving this order you are summoned to appear at the Immigration Office 6th Floor, Wisma Dang Bandang, Kota Kinabalu, Sabah on or before 18 November 1997 for further action.

Signed

(ABDULLAH SAM SULAIMAN)

DIRECTOR OF IMMIGRATION,

STATE OF SABAH

Dated this: 11 November 1997.

At the same time, the respondent was also served with a copy of a special pass which allowed him to remain in Sabah for seven days.

On 17 November 1997, the respondent was granted leave by the High Court to apply for an order of certiorarito quash the decision of the director dated 12 November 1997, but failed to obtain a stay of the cancellation of the entry permit. The stay was subsequently granted by the Court of Appeal. In the meantime, the State Authority was allowed to join as a party to the substantive motion.

On 26 December 1997 lan Chin J dismissed the respondent's motion with costs and held:

(1) that any challenge to the act or direction given to the director by the State Authority under s. 65 of the Actcannot be questioned by the court because it is caught by the privative clause in s. 59Aexcept for questions relating to compliance with procedural requirements of the Act or regulations governing those acts or decisions;

(2) that there is a proviso in s. 64(1) that the operation of s. 14 shall be subject to and in accordance with Cap 2 of Part VII, which means that s. 14 must be read subject to ss. 62-74 of the Act. Therefore, by cancelling the respondent's entry permit under s. 65 instead of s. 14, the director had