Thomson CJ (delivering oral JUDGMENT or, preliminary point):

The second appellant in this appeal is the Chairman of the Ipoh Town Council.

We now have before us an application by Federal Counsel to appear on his behalf and represent him on the hearing of the appeal.

Before proceeding to the actual application itself, let us consider the relevant provisions of the law. I start with Ch. 17 of the old laws of the Federated Malay States. Section 15 gave the Legal Adviser, as he then was, certain rights of audience. That Enactment was still in force when the Advocates and Solicitors Ordinance, 1947, was enacted. That Ordinance gave extensive, and Indeed almost exclusive, rights of audience to legal practitioners admitted to practise in accordance with its terms but it dealt with the rights of audience of Government law officers in s. 56(2) which provides that:

nothing herein shrill affect the right (which is hereby declared) of the Attorney General and ..............Federal Counsel to appear and to plead and do all other things necessary in respect of litigation or proceedings in any Court in the Malayan Union.

The effect of that sub-section was considered by Wilson J, in the case of a Sin Huat Hin Tin Mines Ltd. v. Lee Yat Kat & Ors. [1954] MLJ 170 in which he held that it availed to enable Federal Counsel to enter appearance in certain proceedings on behalf of two officials of the Mines Department who were sued in their official capacity.

We see nothing to quarrel with in that decision of Mr. Justice Wilson. To our mind, however, there is nothing in it inconsistent with our own view that s. 55(2) of the Advocates and Solicitors ordinance does not in itself confer upon the law officers any new right of audience but merely saves rights under the preexisting law which might otherwise have been held to have been adversely affected by the provisions of the Advocates and Solicitors Ordinance. Those rights, at that time, mainly arose from the provisions of Ch 17 of the old Federated Malay States Laws.

Ch 17 has now been repealed and replaced by the Government Proceedings Ordinance, 1956, and I think it is conceded that if Federal Counsel has any right of audience by reason of the provisions of that Ordinance it must arise either under s. 24(1) (b) or under s. 24(2) (a).

Section 24(1)(b) provides that in civil proceedings by or against the Government of a State a law officer may appear as advocate. There the short answer is that the present proceedings are not civil proceedings against the Government of a State; they are civil proceedings in the first Place against the lpoh Town Council which is not a State or a Government of a State and in the second place against the Chairman of that body who admittedly, as I have observed, is neither a State nor a Government of a State.

There only remains ss. 24(2)(a), the material portions of which read as follows:

In civil proceedings to which a public officer is a party -

(a) by virtue of his office;

................................... a legal officer may appear as advocate on behalf of such officer.........................

The expression "officer" is defined in the Ordinance itself. There is a similar definition of "public officer" contained in the Interpretation and General Clauses Ordinance. From both these definitions it is abundantly clear that an officer is a person employed by a Government, either the Federal Government or a State Government. In the present case, therefore, the question of Federal Counsel's right of audience narrows itself down to the question: is the Chairman of the lpoh Town Council a public officer within the meaning, of s. 24? And that in its turn boils down to the question: is he employed by any Government?

The tests of employment are, of course, various. A common one is the test which is used to distinguish between a servant and a contractor, that is to say whether the master can direct not only what the servant does but also his way of doing so. In