IN THE COURT OF APPEAL MALAYSIA
(APPELLATE JURISDICTION) CIVIL APPEAL NO. Q-02-440-1999
HU CHANG PEE
(Also known as HII CHANG PEE) … APPELLANT
TAN SRI DATUK PADUKA (DR) TING PEK KHIING … RESPONDENT
[In the matter of High Court Suit No. 22-139-98 (MR) In The High Court in Sabah and Sarawak at Miri
HU CHANG PEE
(Also known as HII CHANG PEE) … Plaintiff
TAN SRI DATUK PADUKA (DR) TING PEK KHIING … Defendant]
Coram: Raus Sharif, J.C.A.
Sulong Matjeraie, J.C.A. Ahmad Maarop, J.C.A.
JUDGMENT OF THE COURT
1. By way of notice of motion in enclosure 22(a) the respondent is moving this Court to set aside or vacate the order of this Court dated 21 June 2004. The reason for such prayer was because it was the respondent’s submission that this Court sitting in Putrajaya had no jurisdiction to hear any appeal from the High Court of Sarawak and/or when an advocate of the High Court of Sarawak appeared in the sitting in Putrajaya. This lack of jurisdiction rendered the order of this Court dated 21 June 2004 null and void.
2. We heard enclosure 22(a) at our sitting in Kuching, Sarawak on 5 October 2009. Having heard the submissions of the parties, we adjourned the matter for our consideration and decision. We now give our decision and the reasons for the same.
3. The events leading to the filling of enclosure 22(a) are as follows. The appellant had filed a writ action against the appellant to claim the sum of RM8.5 million with interest thereon. On 7 May 1999, the High Court at Miri, Sarawak ordered that the action be struck out and dismissed with costs.
4. Aggrieved, the appellant filed an appeal to this Court. On 21 June 2004, this Court sitting at Putrajaya allowed the appeal and restored the High Court suit for trial. The hearing of the
appeal at Putrajaya was attended by advocates of Sarawak from the both sides.
5. Consequent thereto, the High Court proceeded with the trial. On 3 December 2007, the High Court at Miri, Sarawak entered judgment against the respondent and ordered the respondent to pay the respondent the sum of RM8.5 million with interest thereon and costs.
6. The respondent had, on the 4 December 2007 appealed to the Court of Appeal against the said decision. While the appeal was still pending, the respondent on 29 April 2008 filed this notice of motion as in enclosure 22(a) seeking that the order of this Court made on 21 June 2004 be set aside and/or vacated.
7. The main ground of this application is that this Court sitting at Putrajaya on 21 June 2004 hearing an appeal from the High Court of Sabah and Sarawak had no jurisdiction to hear such appeal and the advocates for Sarawak had no right to appear at Putrajaya to argue the appeal from Sarawak.
8. Dato’ Muhamad Shafee Abdullah, learned counsel for the applicant, at the outset acknowledged that the recent Federal Court case of Datuk Hj. Mohammad Tufail Mahmud & Ors v Dato’ Ting Check Sii  4 CLJ 449 (“Mohammad Tufail”), had ruled on this matter. Nevertheless he submitted that the Federal Court decision was made without a thorough
consideration of whether, irrespective of the question of the legal competency of counsel appearing before the Court of Appeal sitting in Putrajaya, the Court of Appeal has jurisdiction/power to sit in Putrajaya over matters emanating from Sarawak. It was also contended that the decision was made per incuriam of the long established decisions of the Supreme Court and the Federal Court in various cases; and that it failed to adhere to the principle that with the clear wording of a statue, the golden rule and the purposive approach to interpretation had no role to play.
9. Thus, Dato’ Muhamad Shafee urged us not to follow the decision of the Federal Court in Mohammad Tufail. Instead he asked us to follow the decision of the Supreme Court case of Abdul Karim bin Abdul Ghani v Legislative Assembly of Sabah  1 MLJ 171 (“Abdul Karim”) and the Federal Court case of Malaysian Bar v Mutang Tagal  1 MLJ 231 (“Mutang Tagal”).
10. With utmost respect, we are of the view that the two cases referred to were not exactly on point. However, even if they were on point, the decision in Mohammad Tufail being the later decision of the Federal Court prevails over the earlier decision of Abdul Karim and Mutang Tagal (See Dalip Bhagwan Singh v Public Prosecutor  1 MLJ 1). More importantly, the decision of the Federal Court in Mohammad Tufail had established beyond doubt that the appearance of
advocates from Sarawak in the Court of Appeal sitting in Putrajaya and the hearing of such an appeal was proper and in accordance with the law.
11. In Mohammad Tufail, two questions were posed to the Federal Court:-
(i) Whether an advocates and solicitors from Peninsular Malaysia is entitled to appear as counsel in an appeal to be heard in Putrajaya arising from a matter originating from the High Court in Sabah and Sarawak at Kuching.
(ii) Whether an advocates from Sarawak is entitled to appear as counsel in an appeal to be heard (by the Court of Appeal) in Putrajaya arising from matter originating from the High Court in Sabah and Sarawak at Kuching.
12. The Federal Court answered the first question in the negative and the second question in the affirmative. The effect of the answer to the second question is that, an advocate from Sarawak has the right of audience in the Court of Appeal sitting in Putrajaya, when the matter under appeal emanated from the High Court of Sabah and Sarawak. We have no reason to depart from the said decision. In the present case, the matter emanated from the High Court Miri, Sarawak. Thus, the appearance of both counsel from Sarawak in the Court of
Appeal at Putrajaya did not render the order of this Court dated 21 June 2004 null and void.
13. On the issue that the Court of Appeal or for that matter the Federal Court cannot sit in West Malaysia over appeals involving matters arising from Sabah or Sarawak, our short answer is section 39 and 75 of the Courts of Judicature Act 1964. Section 39 refers to the sittings of the Court of Appeal while section 75 refers to the sittings of the Federal Court.
14. Under s 39, it is provided that the Court of Appeal shall sit on such dates and at such places as the President may from time to time appoint. And it also provided that the President may when it deems it expedient, direct that any appeal be heard at any time and in any place in Malaysia. Similar powers are given in s 75 of the Court of Judicature Act 1964 to the Chief Justice with regard to the sittings of the Federal Court. The two sections clearly empowers the President or the Chief Justice to direct any appeal in the Court of Appeal or Federal Court respectively, be heard in any place in Malaysia.
15. Therefore, we see no reason why this Court cannot sit in Putrajaya hearing over matters emanating from Sarawak since s 39 of the Courts of Judicature Act 1964 clearly provides that the President has the power to determine where and when any appeal may be heard.
16. For the aforesaid reasons, the respondent’s application in enclosure 22(a) must be dismissed with costs.
Dated this 22nd day of January 2010
Raus Sharif Judge
Court of Appeal Malaysia
Counsel for the appellant: Dato’ Muhammad Shafee Abdullah En. Victor Wong Lit Fah En. Bong Ah Loi
Solicitors for the appellant: Tetuan Suhaili Bong & Co.
Counsel for the respondent: En. Lim Heng Choo En. Lee Heng Cheong
Solicitors for the respondent: Tetuan Lim & Lim