Michael Chow Keat Thye v Registrar Of The High Court Of Sabah & Sarawak (S-01(NCVC)(A)-621-10/2018)

1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. S-01(NCVC)(A)-621-10/2018 BETWEEN MICHAEL CHOW KEAT THYE … APPELLANT AND REGISTRAR OF THE HIGH COURT OF SABAH & SARAWAK … RESPONDENT (In the matter of Judicial Review Application No. BK1-13NCVC-2/2-2018 (HC2) in the High Court of Sabah and Sarawak at Kota Kinabalu) IN THE MATTER of the Advocates Ordinance (Sabah Cap 2) as Amended by Advocates Ordinance (Sabah) (Amendment Act 2016) (“Ordinance”). And IN THE MATTER of Articles 5 and 8 of the Federal Constitution. And IN THE MATTER of Section 25(2) of the Court of Judicature Act, 1964 read with paragraph 1 of the Schedule thereto. And 2 IN THE MATTER of Section 44 of the Specific Relief Act, 1950 And IN THE MATTER of the Interpretation and General Clauses Enactment, 1963 And IN THE MATTER of the Interpretation Acts 1948 and 1967 Between MICHAEL CHOW KEAT THYE … Applicant And REGISTRAR OF THE HIGH COURT OF SABAH & SARAWAK … Respondent CORAM: VERNON ONG LAM KIAT, JCA YAACOB BIN HAJI MD SAM, JCA YEW JEN KIE, JCA 3 GROUNDS OF DECISION

1. This is an appeal by the Appellant against the decision of the High Court of Kota Kinabalu, Sabah, given on 17.10.2018, in refusing the Appellant’s application for judicial review to quash the Respondent’s decision in not issuing the Appellant his Certificate to Practice as an Advocate under the Advocates Ordinance [Sabah Cap. 2] [the “Advocates Ordinance”] for the calendar year 2018 and thereafter. Background Facts 2. On 19.5.1994, the Appellant was admitted as an Advocate & Solicitors practicing in the High Court of Malaya.

3. Since around September 2004, the Appellant began practicing under the name and style of Messrs. Michael Chow, Advocates & Solicitors, with an address at No. 58A, Jalan Bukit Raya, off Jalan Taman Seputeh, 58000 Kuala Lumpur.

4. On 7.1.2005, the Appellant who had Sabah connection by birth was also admitted as an Advocates under the Advocates Ordinance at the High Court of Sabah and Sarawak at Kota Kinabalu and his name was entered on the Rolls under Roll No. 715 pursuant to the Advocates Ordinance.

5. Since then the Appellant has been issued with the relevant Certificate to Practice for each of the intervening calendar years including the calendar year 2017. 4

6. At all material time the Appellant had maintained a practice as an Advocate under the firm of Messrs. C T Tan & Co. at Unit 3-27A. 3rd Floor, Kompleks Asia, Asia City Phase 2A, 88000 Kota Kinabalu, Sabah, Malaysia.

7. Towards the end of 2017, the firm of Messrs. C T Tan & Co. submitted on behalf of the Appellant his application for the Certificate to Practice for the calendar year 2018. The Appellant had otherwise fulfilled all requirements as stipulated under the Advocates Ordinance for applying for the Certificate to Practice including having secured the relevant Annual Certificate from the Sabah Law Society.

8. On or about 10.1.2018, the firm of Messrs. C T Tan & Co. was informed by telephone from the High Court in Sabah and Sarawak in Kota Kinabalu that the Appellant’s Certificate to Practice for the year 2018 was not being processed because the Appellant who was already practicing under the name and style of Messrs. Michael Chow in Kuala Lumpur had failed to fulfill the requirement of “employed fulltime in his practice in Sabah”, as required under the new Section 9A (1) of the Advocates Ordinance [inserted into the Advocates Ordinance at end of 2017].

9. Aggrieved by the decision of the Respondent, the Appellant, after obtaining the leave, filed for judicial review which was dismissed by the High Court.

10. Upon appeal to this Court, we have on 15.05.2019 unanimously dismissed the appeal. 5 High Court’s Decision 11. Before the High Court, the Appellant contended that the provision in Section 9A (1) of the Advocates Ordinance is not applicable to him as his position is covered by the saving provision found in Section 31(3) of the Advocates Ordinance (Sabah) (Amendment) Act 2017 [“the Amending Act 2017”]. By reason that the Appellant had continuously received his Practicing Certificate for a period of 12 years including Year 2017, he had acquired “the right or privilege” as stipulated under Section 31(3) of the Amending Act 2017.

12. In dismissing the judicial review, the learned Judge reasoned as follows: An advocate who does not wish to practice is not required to apply for the same. Since the certificate is issued annually and there are conditions that must be fulfilled, the fact that the applicant had been issued with the annual Practicing Certificate for the past 12 years, in my view is not a substantive right. In other words, if the applicant did not fulfill the requirement or that the applicant did not apply, the applicant’s (sic) would not have the right to practice in the particular year. In my opinion, the rights referred to (sic) Section 31(1) therefore is confined to substantive rights that had been conferred by the Ordinance, an example would be if the person had been registered on the Rolls, the said rights would not be affected by the amendments to be [sic] Ordinance and Section 31(1) may then be invoked to safeguard those rights. 6 The Appeal 13. In this appeal, the complaint against the decision of the learned Judge is premised on the following two grounds: a. Failure to consider and apply the saving provisions in Section 31(1) of the Amending Act 2017 [Ground No. 2 of the Memorandum of Appeal]; b. Failure to consider the rule against retrospectivity [Ground No. 3 of the Memorandum of Appeal].

14. We considered these two grounds together as they are interrelated.

15. It is the contention of the Appellant that he is entitled to a Certificate to Practice in Sabah under the Advocates Ordinance on three grounds, namely: a. It is his right by reason of his Sabah connection; b. It is his privilege; c. The law affecting his right and privilege cannot apply against him retrospectively.

16. The Appellant who acted in person contended that he was born in Sabah and that his right to apply for a practicing certificate is a substantive right, a right that has been in place since 2005 till 2017. Reliance is placed on the case of Sivarasa Rasiah v Badan Peguam Malaysia 1 wherein the Federal Court held that the right to apply for practicing certificate under the Legal Profession Act 1 [2010] 3 CLJ 507. 7 1976 was “…not a mere privilege, it is a right to earn a livelihood.” It was submitted that albeit the Federal Court’s pronouncement was in respect of the Legal Profession Act 1976, it would be equally applicable to the position under the Advocates Ordinance.

17. The Appellant further contended that the right to livelihood is a substantive right enshrined in the Federal Constitution. It carries with it the legitimate expectation for the renewal of the practicing certificate.

18. The Appellant contended that even if it is not a right, it is a privilege. It is a privilege because not everyone can apply for a practicing certificate under the Advocates Ordinance; one has to be an advocate to enjoy this privilege.

19. It was further submitted that the new section 9A is lifted up from section 30 of the Legal Profession Act 1976 which provides:

30. Disqualification for practising certificate

(1) No advocate and solicitor shall apply for a practising certificate -

(2) For the purpose of this section a qualified person shall not be construed as being gainfully employed if he is serving in the Judicial and Legal Service.

(3) Any qualified person who is gainfully employed in accordance with paragraph (1)(c) shall surrender his practising certificate to the Registrar. [Emphasis added]

20. The Appellant submitted that what distinguished section 30 of the Legal Profession Act 1976 [“LPA”] from Section 9A of the Advocates Ordinance is the word “Malaysia” appearing in section whereas the word used in the Advocates Ordinance is “Sabah” . It was submitted that the LPA is in conformity with Article 8(4) of the Federal Constitution which permits discrimination against person practicing within Malaysia and outside Malaysia, but not person living in state or outside the state. The word “Sabah” appearing in Section 9A in the Advocates Ordinance creates intra state discrimination in contravention of Article 8(4) of the Federal Constitution.

21. It was further submitted that the word “residence” does not appear in Section 9A of the Advocates Ordinance, yet the Respondent has interpreted it as to require the Appellant to be physically resident to be entitled to a practicing certificate. 9

22. It was submitted that the new Section 9A which imposed the requirement of full-time practice in Sabah is discriminatory and it violated Article 8(4) of the Federal Constitution, which prohibits discrimination on ground of residence.

23. It was submitted that the Respondent had not been given a reasonable explanation to show what is the purpose of discriminating someone like him who was born in Sabah but not resident.

24. It was submitted that the Appellant is protected by Section 31 of the Amending Act 2017 because the Appellant’s entitlement to apply for a practicing certificate is a right that he has since 2005 till 2017. Even if it is not a right, it is a privilege. As such, the rule against retroactivity applies citing Malayan Banking Berhad v Siong Electronic Industries (1981) Sdn. Bhd. 2 which held that “an amending statute could not be construed retrospectively if it affected any right that existed before the amendment.”

25. It was submitted that on the basis of the limited finding of the absence of a “substantive right”, the Learned Judicial Commissioner held that the arguments anchored on the rule against retroactivity and the infringement of right of equality were without merits given that these rules only protected substantive rights. 2 [1994] 1 MLJ 704. 10 Respondent’s Contention 26. Learned State Counsel submitted that the decision of the learned Judicial Commissioner is not unreasonable, irrational or perverse. Based on the fact that the Appellant is practicing under the name and style of Michael Chow, Advocates and Solicitors in Kuala Lumpur and that the Appellant is certainly not being employed full time in his practice in Sabah, the learned Judicial Commissioner had correctly held that the Appellant is disqualified for the Certificate to Practice in accordance with Section 9A of the Advocates Ordinance.

27. Learned State Counsel submitted that Section 31(1) of the Amending Act 2017 would not be applicable since the Appellant’s right to practice is subjected to Section 9A [came into force on 1.7.2017] which requires that one must be “…..employed full time in his practice in Sabah….”.

28. It was submitted that the Appellant’s right to practice has not been affected except that since 1.7.2018, the application for the Certificate to Practice must comply with the provision of Sections 9 and 9A of the Advocates Ordinance that he must be employed full time in his practice in Sabah.

29. It was submitted that Section 9A of the Advocates Ordinance carries the effect of prospectivity as there is no indication in the Advocates Ordinance to suggest otherwise. In any event, the substantive right of the Appellant to apply for the practicing 11 certificate will not be affected as long as he complied with the requirement of Section 9A. Sabah Law Society’s Contention 30. Sabah Law Society who is appearing as amicus curiae submitted that residency is relevant for the purpose of admission to the bar, but not for renewal of practicing certificate. The Appellant’s substantive right has not been affected as his name still remains in the Roll of Advocate.

31. It was submitted that pursuant to Rule 59 of the Advocates (Practice and Etiquette) Rules 1988, the position in Sabah is that practice in “more than one firm” is not permitted, except with the consent of the Chief Judge. It was submitted that the prohibition therein is clear and does not distinguish between practice in two firms both within Sabah or practice in one firm within Sabah and another outside of Sabah.

32. Thus, the Appellant who appeared to have at the material time been practicing in both Sabah and Malaya, was in breach of rule 59(b) of the Advocate (Practice and Etiquette) Rules 1988.

33. It was submitted that the Rule 59 of the Advocate (Practice and Etiquette) Rules 1988 has been in effect for approximately three decades and any argument relating to retrospectivity is not relevant to this provision.

34. It was submitted that Section 9A (1) of the Advocates Ordinance prohibits concurrent practice in Sabah and elsewhere. Subsection 9A (2) (b) expressly provides that an advocate shall not apply for 12 his practising certificate “if he is gainfully employed by other person ……..in a capacity other than as an advocate”, citing Syed Mubarak bin Syed Ahmad v Majlis Peguam Negara. Our Decision 35. The Advocates Ordinance is the enactment which governs and regulates the admission of persons as advocates in Sabah and to make provisions for the matter relating thereto. Section 2 thereof defines “advocate” as a person admitted and enrolled as an advocate under the Ordinance.

36. Section 3 of the Advocates Ordinance lays down the qualification which a person must possess to be eligible for admission as advocate on the Roll of Advocate. Amongst other, the person must have been conferred any of the degrees specified in the First Schedule or awarded a Certificate of Legal Practice by the Qualifying Board established under the Legal Profession Act 1976.

37. Under section 4(1A) of the Advocates Ordinance, subject to section 4(1B), it is a requirement that persons applying for admission as Advocates should complete, inter alia, 12 months pupillage or reading in chambers.

38. Under section 4 (2) of the Advocates Ordinance, a person having any of the qualification mentioned in subsections (1) and (1A) shall be eligible to be admitted as an advocate if he satisfies the Chief Judge that, amongst others, he has Sabah connection. 3 [2000] 4 MLJ 167. 13

39. Section 2 of the Advocates Ordinance provides that a person [who must be a Malaysian citizen or permanent resident] shall be deemed to have been Sabah connection by birth or by residence.

40. It is amply clear from section 4 (2) of the Advocates Ordinance that Sabah connection is relevant for admission to the bar but not to renewal of certificate of practice.

41. Section 8 of the Advocates Ordinance provides that, subject to subsection (2) and section 9, advocates shall the exclusive right to practice in Sabah and to appear and plead in the Federal Court or Court of Appeal when sitting in Sabah or when sitting in any other part of Malaysia hearing a cause or matter originating from the High Court or any subordinate court in Sabah and in the High Court and in all courts in Sabah subordinate thereto.

42. It is an undisputed fact that the Appellant had met all the conditions stipulated in Section 4 of the Advocates Ordinance and had been duly admitted as advocate on the Roll of Advocate. Upon admission to the Sabah Bar, the Appellant has clearly established his exclusive right to practice in Sabah. It is not in dispute that as of to date, his name still remains in the Roll of Advocate which means that his substantive right to practice in Sabah is intact and remains unaffected.

43. However, the Appellant’s right to practice as advocate in Sabah is subject to section 9 of the Advocates Ordinance.

44. Section 9 of the Advocates Ordinance states: 14 Certificate to practice in Sabah

9. (1) No advocate shall in any calendar year be entitled to practice in Sabah unless and until he has received from the Registrar a certificate of practice in respect of that year upon payment of the fee prescribed. Provided that upon the admission of any person as an advocate the Registrar shall grant him free of charge a certificate of practice up to and including the 31st day of December next following the date of his admission.

(2) Every advocate shall in each year before he does any act in the capacity of an advocate deliver or cause to be delivered to the Registrar –

(ii) the name under which he practices or the name of the advocate or the firm of advocates employing him;

(iii) the principal and any other address at which he practices in Sabah; and

(iv) that he has not contravened the Advocates’ Remuneration Rules 1988 [G.N.S. 17 of 1988]; and

45.

Pursuant to Section 9 of the Advocates Ordinance, it is plain and clear that although he Appellant is an advocate with an exclusive right to practice in Sabah, he cannot enjoy that right unless he has received a certificate to practice from the Registrar, which he has to apply annually unless he is disqualified by section 9A (1).

46. Section 9A (1) of the said Ordinance which came into force on 1.7.2017, states: Disqualification for certificate to practice 9A (1) An advocate shall not apply for a certificate to practice:-

47. Section 9A (1) (b) of the Advocates Ordinance expressly prohibits concurrent practice in Sabah and elsewhere, which resonates with Rule 59 of the Advocates (Practice and Etiquette) Rules.

48. It is an undisputed fact that the Appellant is also an Advocates and Solicitor practising in the High Court Malaya having been admitted as such on 19.5.1994. Since around September 2004, he began practicing under the name and style of Messrs. Michael Chow, Advocates & Solicitors in Kuala Lumpur. Regard being had to the fact that the Appellant is having an active practice in the High Court of Malaya, it follows that he surely cannot be “employed in full time” in Sabah. Under the circumstance and pursuant to Section 9A (1) of the Advocates Ordinance, the Appellant should not even have applied for a certificate to practice, let alone to be issued with a certificate of practice by the Registrar. Accordingly, it is not plainly wrong for the learned Deputy Registrar to decide that issuing a certificate to practice to the Appellant in Sabah is a clear violation to Section 9A (1) of the Advocates Ordinance. The learned High Court Judge was correct to affirm that decision.

49. The Appellant had relied on Sivarasa Rasiah, supra, to support his contention that his right to apply for a practising certificate under section 9 of the Advocates Ordinance, a right which was been in place since 2005, is a substantive right to earn a livelihood and it 17 has been impaired by section 9A (1). With respect, we are unable to agree that section 9A (1) has affected the Appellant’s right to earn a livelihood. As stated earlier, the Appellant’s name still remains in the Roll of Advocate, which means that he has not lost his substantive right to practice in Sabah provided he complies with the law. Further, section 9A (1) does not prevent the Appellant from practicing at the High Court of Malaya.

50. We are also, with respect, unable to agree that the Appellant’s right to apply for a certificate to practice is a right that has been established since 2005. Lest it be forgotten that while the admission as advocate to Sabah Bar has conferred upon the Appellant the right to practice in Sabah bar, but that right does not automatically give him the right of audience in Sabah courts without receiving an annual practising certificate from the Registrar. In other words, the right to practice in Sabah confers upon the Appellant the privilege to apply for a practicing certificate in order to appear and plead in Sabah Courts.

51. The Appellant had received certificates to practice since 2005 until 2007, this goes to show that the Appellant was all the while cognizance of the legal requirement to apply for a practising certificate to entitle him to appear and plead in Sabah Courts.

52. It is to be noted that as early as three decades ago, Rule 59 (b) of the Advocate (Practice and Etiquette) Rules 1988 has been in place and it states as follows: 18 No advocate shall practice his profession in the State of Sabah in or as a partner of more than one firm at any time without the consent of the Chief Judge.

53. Rule 59(b) of the Advocates (Practice and Etiquette) Rules 1988 clearly does not permit practice in “more than one firm” except with the consent of the Chief Judge. The rule does not distinguish between practice in two firms both within Sabah or practice in one firm within Sabah and another outside of Sabah. This means that all this while the practising certificates had been issued to the Appellant in contravention of Rule 59(b) of the Advocates (Practice and Etiquette) Rules 1988. It cannot however be said that there was no frank and full disclosure by the Appellant. We say so because the Advocates (Issue of Annual Certificate) Rules 2017 does not expressly require disclosure of this fact. In this respect, Brenndon Keith Soh deposed in the Affidavit in Reply as follows4:

6. I wish to state for the record that the fact that the Applicant maintained a practice in Malaya was not disclosed to the SLS at the time he applied for the issuance of his Annual Certificate for 2018. To be fair to the Applicant, the Advocates (Issue of Annual Certificate) Rules 2017 do not expressly require disclosure of this fact. The SLS – being a relatively new statutory body – is still fine-tuning these and other rules to cater for the new framework surrounding the legal profession in Sabah. 4 Record of appeal vol. 2, page 38, paragraph 6 19

54. Notwithstanding, the fact remains that the practising certificates issued to the Appellant from Year 2005 till 2017 should not have been issued in the first place in light of Rule 59(b) of the Advocates (Practice and Etiquette) Rules 1988. Thus, contrary to the Appellant’s contention, the so-called right put in place since 2005, as submitted for the SLS, is “illusory” as that right ought not to have been given in the first place. In the circumstance, the Appellant’s argument of legitimate expectation for the practising certificate to be renewed must also fall.

55. The Appellant also contended that section 9A (1) which impose full time residence to practice in Sabah is discriminatory in violation of Article 8(4) of the Federal Constitution, which states:

(4) No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority.

56. In his submission, the Appellant relied on section 30 of the LPA where the word “Malaysia” is used in section 30(b) and (c) in contrast to section 9A (1) of the Advocates Ordinance where the word used is “Sabah”. It was submitted that the former Act is in conformity with Article 8(4) of the Federal Constitution which permits discrimination against person practicing within Malaysia and outside Malaysia, but not person living in state or outside the state. Whereas the word “Sabah” in Section 9A in the said Ordinance creates intra state discrimination in contravention section 8(4) of the Federal Constitution. 20

57. We find no merit in this contention. As submitted by learned State Counsel, the word “Partnership in Malaysia” in section 30(a) and “employed full time….in Malaysia” in section 30(b) means “Malaya”. We agree with the submission given that the practising certificate governed by section 30 of the Legal Profession Act applies to advocates called to the Malaysia Bar in Peninsular Malaysia. Accordingly, the Appellant’s reliance on section 30 of the Legal Profession Act to support his argument that s 9A (1) discriminated him holds no water.

58. Regard being had to all the above consideration, we are of the view that the Appellant’s Sabah connection by birth along with the necessary qualification stated in section 4(1)(a), or (c) or (ca) or (cb) or (d) of the Advocates Ordinance qualified him to be admitted as an advocate to the Sabah Bar by which he has the right to practice as advocate in Sabah. However, that right does not automatically entitle him to appear and plead in Sabah Court and it is subject to section 9 and 9A (1) of the Advocates Ordinance. Section 9A (1) does not impair the Appellant’s right to apply for a practising certificate provided he fulfills the mandatory conditions stated therein. As the Appellant has failed to meet the same, his complaint against the learned Judicial Commissioner for not applying the saving provision in section 31(3) of the Amending Act holds no water.

59. For all the reasons above, we find no appealable errors to warrant appellate intervention. Accordingly, it is our unanimous decision 21 that the appeal be dismissed with no order as to cost. The decision of the High Court is affirmed. Dated: 2 October 2019 sgd YEW JEN KIE (delivering judgment of the court) Court of Appeal Judge Putrajaya For Appellants :

1. MICHAEL CHOW KEAT THYE (Mewakili diri sendiri) Third Party :

2. ROGER CHIN (ALVIN LEONG bersamanya) [Sabah Law Society/Amicus Curiae] For Respondents : SFC, ANDI RAZALIJAYA BIN A. DADI Notice: This copy of the court’s reasons for judgment is subject to editorial revision.