rayuan sivil no. w-02-562-2009 antara 1. s. ashok kandiah 2. tetuan ...

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judge had not subjected the evidence before him to critical examination and evaluation as to whether the plaintiffs had in fact misled the Sessions Court Judge on 13/8/99 as to the nature of the 2 nd plaintiffs occupation on 13/8/1999. We are unanimous that a serious miscarriage of justice has been occasioned by the trial judge in rejecting the pleaded defence of justification to the alleged libel contained in the Impugned Letter. The Firm (Messrs A. Zahari Kanapathy Thulasi) was retained by one Dato Tan Chin Woh (Dato Tan) to commence legal proceedings against the 1 st plaintiff for the recovery of a friendly loan of RM92,000/-. Pursuant to Dato Tans instructions, the Firm filed civil proceedings against the 1 st plaintiff in the Sessions Court, Kuala Lumpur vide Summons No.7- 5219989-99. The 1 st plaintiff was not represented by solicitors in the Sessions Court. He filed an application to strike out Dato Tans Summons and Statement of Claim. The application was fixed for hearing on 13/8/1999. The 1 st defendant appeared as counsel on behalf of Dato Tan and informed the Sessions Court Judge that he would be raising a preliminary objection to the application. From the outset, on 13/8/1999, the 1 st and 2 nd plaintiff were seated at the Bar table in the Sessions Court. The 2 nd plaintiff was wearing a white shirt, a tie and a black jacket the standard professional attire for counsel appearing in Court. The 2 nd plaintiff 8
was seated in the 2 nd row of the Bar table, behind the 1 st defendant who was seated in the 1 st row. At this juncture, it is pertinent to emphasize that the 2 nd plaintiff had already completed his pupilage on 30/7/1999 and was waiting to be called to the Bar at the High Court Kuala Lumpur on 20/8/1999. However, this fact was not known to the 1 st defendant or to the Sessions Court Judge. Judicial notice should be taken that under s.12 (2) Legal Profession Act 1976 (LPA), no qualified person shall without special leave in writing of the Bar Council hold any office or engage in any employment during his pupilage. It is also to be noted that pursuant to s.36 (2) LPA, upon obtaining the order of a Judge, a pupil may be permitted to appear in Court on behalf of his Master or of the firm in which his Master is practicing. In the course of the 1 st plaintiffs oral submissions, on the preliminary objection made by the 1 st defendant as counsel for Dato Tan, the 2 nd plaintiff assisted the 1 st plaintiff by handing over copies of authorities to the Sessions Court Judge and the 1 st defendant (as counsel for Dato Tan). The copies of the authorities intended for the Sessions Court Judge were handed by the 2 nd plaintiff through the 1 st defendant to the Court interpreter. The 2 nd plaintiff nudged the 1 st defendant and gestured to the 1 st defendant to hand over copies of the authorities to the Court interpreter. The 1 st defendant obliged him a few times. 9
Page 1 and 2: DALAM MAHKAMAH RAYUAN MALAYSIA 1. S
Page 3 and 4: Malaysia. His office address was at
Page 5 and 6: VOUCHER COUNCIL OF JUSTICES OF THE
Page 7: I did not employ the 2 nd plaintiff
Page 11 and 12: and the Sessions Court Judge reserv
Page 13 and 14: ) that you and Mr Alvinthiren had k
Page 15 and 16: (i) that you and Mr Alvinthiren had
Page 17 and 18: Alvinthiren has misled the Court (b
Page 19: In the above circumstances, we are

rayuan sivil no. w-02-562-2009 antara 1. s. ashok kandiah 2. tetuan ...

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