These rule does not prevent an advocate and solicitor from swearing or 17 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 affirming an affidavit as to formal or undisputed facts in matters in which he acts or appears. [Emphasis added.] [21] The rationale for rule 28(a) was explained by Beaumont CJ in Emperor v. Dadu Ramu, AIR 1939 Bom 150, where his Lordship stated in the oft-quoted passage: Generally, if an advocate is called as a witness by the other side, it can safely be left to the good sense of the advocate to determine whether he can continue to appear as an advocate, or whether by so doing he will embarrass the court or the client. If a court comes to the conclusion that a trial will be embarrassed by the appearance of an advocate, who has been called as a witness by the other side, and if, notwithstanding the court's expression of its opinion, the advocate refuses to withdraw, in my opinion in such a case the court has inherent jurisdiction to require the advocate to withdraw. An advocate cannot cross-examine himself, nor can he usefully address the court as to the credibility of his own testimony, and a court may well feel that justice will not be done if the advocate continues to appear. But, in my opinion, the prosecution in such a case must establish to the satisfaction of the court that the trial will be materially embarrassed, if the advocate continues to appear for the defence. [Emphasis added.] [22] Counsel for the Respondent contended that the choice of advocate and solicitor was the prerogative of the litigant, in this case, the Respondent. In my view, although a litigant is entitled to select the advocate and solicitor whom he desires to appear for him, this Court is bound to see that the due administration of justice is not in any way embarrassed. 17 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 [23] Reference was made also to Quah Poh Keat & Ors v Ranjit Singh Taram Singh [2009] 4 CLJ 316, where it was explained that the first part of rule 28(a) of the Legal Profession (Practice and Etiquette) Rules is where an advocate and solicitor (who is yet to appear in a case) who has reason to believe that he will be a witness in respect of a material and disputed question of fact, shall not appear in open court or even in chambers. In the second part of it, if he already has made an appearance in a case, and it becomes apparent that he will be a witness of a material and disputed question of fact, he shall not continue to appear, if he can retire without jeopardising his client's interests. [24] In referring to several cases such as Abdul Halim bin Abdul Hanan & Ors v. Pengarah Penjara, Taiping & Ors [1996] 4 MLJ 54, Wee Choo Keong v. Pendakwa Raya [1990] 1 CLJ 1015; [1990] 3 CLJ (Rep) 346 and Sykt Pengangkutan Sakti Sdn Bhd v. Tan Joo Khing t/a Bengkel Sen Tak [1997] 3 CLJ 754, the bar against a solicitor appearing based on the likelihood that he would be a witness in the case was explained in Quah Poh Keat & Ors v Ranjit Singh Taram Singh, by Suriyadi Halim Omar JCA in an enlightening passage: The highly pertinent question that must necessarily follow in its wake is, why the bar from appearing in such circumstances? The obvious answer, without the need for intensive judicial activism, is that in order to avoid any conflict of interest or embarrassing ethical issues, Parliament found the promulgation of this provision necessary. Imagine a situation where a solicitor might find himself in a sticky situation of being a potential witness in a legal tussle, by virtue of his previous professional duties. He is supposed to be at the forefront to plead justice fearlessly, when representing the cause of his client, yet with such an inhibition being present he might not do justice to his client. At first blush, this provision leaves it to 17 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 the good sense of the solicitor to decide whether he will be called as a witness, in respect of a material and disputed question of fact and refrain from representing a client. Despite that statement we are of the view that a judge pursuant to his inherent jurisdiction has the power to disqualify him if all the statutory preconditions have been complied with. Surely to avoid unnecessary problems prevention is better than cure in that, in such a scenario, an advocate and solicitor must be restrained at the outset. [Emphasis added.] [25] Hence, at this stage, this Court had to consider whether a reasonable man armed with all the facts, might reasonably anticipate the probability of Mr GK Sritharan himself being called as a witness at the hearing of the Divorce Petition. The Petitioner submitted that she would be doing so, despite Mr GK Sritharan’s indication that he would resist such subpoena if it was to be issued. At this stage, Mr GK Sritharan’s objection to being called as a witness is irrelevant. The fact of the matter is he is a potential witness in the divorce proceedings, and as such, he should not be representing the Respondent in the same. [26] In breaching rules 3 and 28(a) of the Legal Profession (Practice and Etiquette) Rules, Messrs GK Sritharan must also be reminded of rules 4 and 5 of the Legal Profession (Practice and Etiquette) Rules, both of which read: Rule 4 – No advocate and solicitor to accept brief if professional conduct likely to be impugned. No advocate and solicitor shall accept a brief in a case where he knows or has reason to believe that his own professional conduct is likely to be impugned. ***** 17 May 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 Rule 5 – No advocate and solicitor to accept brief if difficult to maintain professional independence.