JUDGMENT

(Oral)

Gopal Sri Ram JCA (delivering the judgment of the court):

This is the judgment of the court.

This appeal raises a short issue of statutory construction. The provision in question is s. 13(1) of the Legal Profession Act 1976("the Act"). That section reads as follows:

Subject to subsection (4) a pupil shall serve his period of pupillage with an advocate and solicitor who is and has been in active practice in Malaysia for a total period of not less than seven years immediately preceding the date of commencement of his pupillage.

Provided that the Bar Council may on special grounds allow a pupil to serve his period of pupillage with an advocate and solicitor of less than seven years' standing.

The factual background against which the interpretive question arises may be shortly stated.

Encik Akberdin is an advocate and solicitor of these courts. He was called to the Bar on 1 March 1991. Soon after that he joined the Judicial and Legal Service. He was a magistrate. He served as a magistrate in Kuala Lumpur for six years. Thereafter he resigned and returned to private practice.

Cik Faradinah binti Abu Bakar is a graduate of the International Islamic University. She obtained her degree in 1998. She wished to practice law. She went to Encik Akberdin's chambers. He took her on as his pupil. In due course she completed the formalities. At the end of the first statutory period, she obtained an order permitting her to appear before the subordinate courts and in the chambers of a judge. The profession calls this a "short call". Eventually her petition to be admitted to the Bar was heard. She was admitted as an advocate and solicitor. After the date of admission, the Bar Council realised that Encik Akberdin was not qualified to take on a pupil. Both Encik Akberdin and his pupil wanted to have their position declared as being legal that is to say, as being within the law. So, they instituted proceedings in the High Court at Kuala Lumpur asking for several declarations. The main thrust of these declarations was that Encik Akberdin was in the words of the statute, "in active practice" for the required period, namely seven years from the date of his call to the Bar. If he was right in that assertion, then Cik Faradinah was properly called to the Bar. The application for declarations came before the learned judge of the High Court who in a very careful judgment examined the contentions advanced on behalf of the plaintiffs (the appellants before us). We will mention these contentions briefly. They were repeated before us. This is how the plaintiffs' counsel, Mr. K.K Wong, put his case.

The Act is constructed in such a fashion that it draws a distinction between three separate and distinct categories. First, an advocate and solicitor is defined in s. 3 of the Act. Next, there is s. 13(1)which employs the phrase "advocate and solicitor who is and has been in active practice". Thirdly, s. 13(3)(d) of the Actuses the expression "engaged in active practice as a legal practitioner". Mr. Wong's argument is that these three expressions mean different things. In support of his argument he has referred us to and relied on the judgment of Suffian LP in Samantha Murthi v. Attorney-General, Malaysia & Ors[1982] CLJ 241; [1982] CLJ (Rep) 213. In that case, the Federal Court when dealing with the definition of an advocate and solicitor under s. 3, held that an advocate of the Bar of the State of Sarawak could be a pupil master or "an advocate" for the purposes of the Act. While we entirely agree with that decision indeed it is binding on us we find its relevance to the present case a little dubious.

It is to be immediately appreciated that the foundation of Mr. Wong's argument is the literal approach. He says that when the section, that is to say s. 13, is interpreted literally, then Encik Akberdin is qualified to act as a pupil master because his active practice should include the six years he was a magistrate. The learned judge rejected that co