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Star: Judge Haidar Mohd Nor Judgement
By Matkamah

28/6/2001 9:24 pm Thu file=/2001/6/28/nation/skhaidar&sec=nation

Thursday, June 28, 2001

Judgment of Haidar Mohd Noor

I have had the advantage of reading the draft judgment of the learned Chief Judge. I agree with him that this appeal should be allowed. I would, however, like to add the following.

The application made by Dato' Seri Anwar Ibrahim ("DSAI") and filed by the appellant's firm on his behalf as his solicitor that resulted in the contempt proceedings against the appellant and his subsequent conviction raises, inter alia, the issue of the liability of an advocate and solicitor vis-a-vis his client.

Quite apart from that, the application is rather an unusual one. I say so because, if I am not wrong, this is the first time that I have come across an application to disqualify prosecutors from further prosecuting in a criminal case at the instance of an accused person ('DSAI') which landed not DSAI but his counsel (the appellant) for contempt of court on the premise that such an application tended to interfere with the administration of justice.

The role of the appellant as an advocate and solicitor is governed by the Legal Profession (Practice and Etiquette) Rules 1978 ("Rules"). In respect of the appellant's role in this appeal, the relevant rules are rr. 9 and 16, which are:

9. Advocate and solicitor to undertake defence fairly and honourably.

(a) An advocate and solicitor who undertakes the defence of a person in any criminal matter shall by fair and honourable means present' every defence that the law permits.

(b) An advocate and solicitor shall undertake the defence of a person accused of an offence regardless of his personal opinion as to the guilt or otherwise of the accused.

16. Advocate and solicitor to uphold interest of client, justice and dignity of profession.

An advocate and solicitor shall while acting with all due courtesy to the tribunal before which he is appearing, fearlessly uphold the interest of his client, the interest of justice and dignity of the profession without regard to any unpleasant consequences either to himself or to any other person.

The conduct of the appellant in the High Court was not an issue but the application of DSAI, through the appellant's firm, was as far as the learned High Court Judge was concerned. One thing that needs to be clearly noted is that the complaint was not against the Judge or court or touching on the proceedings per se.

It was a complaint against the conduct of the two prosecutors in the case against DSAI and for an order that they be prevented or prohibited or discharged from further conducting the case against DSAI, and also for their conduct to be referred to the Attorney General for an appropriate action to be taken.

The first question that comes to my mind is whether DSAI can make such a complaint to the court and if so, whether there are adequate grounds therefor or is it to undermine or interfere with the administration of justice. It is in this context that I have to examine the liability of the appellant as counsel/solicitor to DSAI.

Let me first consider the legislation pertaining to the duties of an advocate and solicitor towards his client.

Rr.9 and 16 of the Rules clearly set out the responsibilities of an advocate and solicitor towards his client, inter alia, to present every defence that the law permits and to uphold the interest of his client, justice and the dignity of the profession without regard to any unpleasantness to himself or to any other person. He is suppose to act fearlessly.

That is well and good but what happens when there is a conflict between his obligation to the court and his duty to his client?. As an officer of the court his obligation to the court prevails over his duty to the client. Lee Hun Hoe, C.J. (Borneo) speaking for the Federal Court in the case of Cheah Cheng Hoe v Public Prosecutor (1986)1 MLJ 299 at p. 301 said -

"It is very important for a counsel to remember that whatever may be his duty to his client his duty to t,,he court remains paramount in the administration of justice."

There are a number of authorities affirming the role and duties of an advocate and solicitor vis-a-vis his client. R. 36 of the Rules, however, requires him to terminate the relationship if the instruction of his client borders on contempt. R.36 states -

"An advocate and solicitor shall use his 'best efforts to prevent his client from doing things which the advocate and solicitor himself ought not to do, particularly with reference to his conduct towards Courts and judicial officers, jurors, witnesses and parties. Where a client persists in such wrongdoing the advocate and solicitor shall terminate the relationship."

Merely saying in defence that an advocate and solicitor was acting on the instructions of his client without anything more is not, in my view, a defence to an offence of contempt. In this respect I refer to what Mahajan CJ in M.Y. Shareef and Anor. v Hon'ble Judges of the Nagpur High Court AIR 1955 SC 19 at page 23, said-

"It cannot be denied that a section of the Bar is under an erroneous impression that when a counsel is acting in the interest of his client, or in accordance with his instructions he is discharging his legitimate duty to his client even when he signs an application or a pleading which contains matter scandalizing the Court. They think that when there is a conflict between their obligations to the Court and their duty to the client, the latter prevails.

This misconception has to be rooted out by a clear and emphatic pronouncement, and we think it should be widely made known that counsel who sign applications or pleadings containing matter scandalizing the Court without reasonably satisfying themselves about the prima facie existence of adequate grounds therefore, with a view to prevent or delay the course of justice, are themselves guilty of contempt and that it is no duty of a counsel to his client to take any interest in such applications; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications".

However, if the appellant reasonably satisfied himself that there exist adequate grounds to file such an application then, in my view, that would afford him a good defence so long as he did not overstep the mark between his legal duty and contempt.

Before considering whether there are adequate grounds in filing such an application, I need to consider whether DSAI has the right to make such an application and if he has no such right then it would be the duty of the appellant to advise him accordingly. Whyatt CJ in Yee Chang & Co. Ltd. v N.V. Koninklijke Paketvaart Maatschappij (1958)24 MLJ 13 1 at page 133 said -

"It has been laid down by the House of Lords in Myers v Elman (1940)A.C. 282, supra that a solicitor owes a duty to the Court to conduct litigation with due propriety and to assist in promoting in his own sphere the cause of justice. If, therefore, a solicitor becomes aware in the course of proceedings that his client is obstructing the interests of justice, it is his duty to advise his client as to the conduct which he ought the follow and if the client still persists in his wrong conduct, he should decline to act for him further".

If DSAI has adequate grounds to complain and to seek the justice of his case, to whom does he complain?. In my view, the forum is none other than the court. I say so, as aptly stated by Lord Diplock in A-G v Times Newspapers Ltd (1973)3 All ER 54 at page 72 -

"The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities. Secondly, that they should be able to rely on obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based on those facts of that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that once the dispute has been submitted to a court of law, they should be able to rely on there be no usurpation by any other person of the function of that court to decide it according to law".

There is therefore, in my view, the right for DSAI as a citizen to have access to constitutionally constituted courts for determination of disputes as to his legal rights and liabilities. However, such right, in my view, is subject to showing prima facie adequate grounds to do so as otherwise such application can be considered as baseless and an abuse of the process of the court which would attract contempt of court.

The learned Chief Judge has extensively considered the grounds relied on by DSAI in his application filed through the appellant's firm. I need not repeat them here. Suffice for me to state that I agree with the conclusion of the teamed Chief Judge -" In my view, he was prima facie justified in filing the said application".

In short, if the filing of the application was prima facie justified there could be no question of the appellant being liable for contempt of court for acting on the instructions of DSAI. In other words, the appellant could not be said to be reckless and negligent and acted in bad faith in filing the application as held by the learned High Court Judge and upheld by the Court of Appeal.

Hence, the question of undermining the authority and/or integrity of the trial in progress did not arise. I would add that the issue of trying to derail the trial also did not arise as evidence showed that the appellant was merely asking for a short adjournment to prepare his defence, that is, just a few days. Surely justice should be accorded to him to do so as his liberty was at stake and such an application should not be viewed negatively by the court as if to prevent or delay the course of justice.

In the circumstances I would allow the appeal and set aside the conviction and sentence.

Date: 27th June 2001

(HAIDAR MOHD NOOR, Judge, Federal Court, Kuala Lumpur)