Chapter 2 - Admission of A&S

Question 1

ADMISSION OF A&S

Overview

Answer 1

1) General admission

2) Special admission

Question 2

GENERAL ADMISSION

Overview

Answer 2

1) The law
2) Name on the Roll
3) Valid PC
4) Procedures for admission

Question 3

GENERAL ADMISSION

The law

Answer 3

S.36:

• A&S to have the name on the Roll and valid PC authorising him to act.

Question 4

GENERAL ADMISSION

Name on the roll

Answer 4

S.10 + S.11

• good character - S.11(b)
• pupillage - S.11(1)(d)
• BM qualification - S.11(2) + Andrew Hilary Caldecott QC (policy to maximize BM usage)

Question 5

GENERAL ADMISSION

Valid PC

Answer 5

S.29 + 79 + 30

1) Accountant’s report - Diljit Kaur Puran Singh v Majlis Peguam:

• It is mandatory to deliver accountant’s report when applying for PC;
• This is so unless applicant seek for exemption.

2) Practising w/o PC - Re Ramanathan Velu:
- A&S who practice w/o valid certificate can be cited for contempt.

Question 6

GENERAL ADMISSION

Procedures for admission

Answer 6

S.15

• Mode: petition to court
• Exhibits
• Where: at the Registrar’s office

Question 7

SPECIAL ADMISSION

Overview

Answer 7

1) By AG
2) By court ad hoc
3) Foreign law firms

Question 8

SPECIAL ADMISSION

By AG

Answer 8

S.28A + S.28B

• name on the Roll - S.28B
• no need valid PC - S.28C
• procedures for admission - S.28B

1) Obtain SA certificate by AG;
2) Mode: ex-parte OS
3) Where: a judge of HC in Chambers

Question 9

SPECIAL ADMISSION

By court ad hoc - overview

Answer 9

1) The law & pre-requirements
2) Burden of proof
3) test for special qualifications
4) BM requirements
5) valid PC
6) name on the Roll
7) procedures for admission

Question 10

SPECIAL ADMISSION BY COURT AD HOC

The law & pre-requirements

Answer 10

S.18:

• (a) special qualifications not available amongst A&S in Malaysia;
• (b) instructed by A&S in Malaysia.

Question 11

SPECIAL ADMISSION BY COURT AD HOC

burden of proof

Answer 11

Jude Philomen Benny v Majlis Peguam Malaysia:

• onus is on the applicant to show that he has fulfilled the requirements.

Question 12

SPECIAL ADMISSION BY COURT AD HOC

test for special qualifications

Answer 12

1) Re Geoffrey Robertson QC:

Majority:

• qualification: accomplishment or quality
• special: exceptional degree, outclass the excellence of local lawyers
• not available - not obtainable.
• OTF, qualifications possessed by the appellant is not available among local lawyers.

Dissenting:

• Special qualifications must be determined by looking at with reference to the issues in the case & reference to Malaysia & Malaysian law.
• OTF, defamation cases have been filed all year round & it is wrong to say that there is no local lawyers who are qualified enough.

2) Cherie Booth QC:

• special qualification must refers to the particular field of the law as a whole.
• not available: not obtainable.
• OTF, parties were represented by senior members of the Bar at HC & CA, so it is not true that there is no availability of local A&S to handle the appeals.

Question 13

SPECIAL ADMISSION BY COURT AD HOC

BM requirements

Answer 13

Re Andrew Hilary Caldecott QC:

• The policy under S.11(2) is to maximise the usage of Bahasa Melayu.

Re Geoffrey Robertson QC:

• Majority judgment: BM requirement under S.11 is of general application, does not apply to special admission via S.18.
• Dissenting: S.11 applies, i.e. purpose of S.11 is to maximise the BM usage.

Question 14

SPECIAL ADMISSION BY COURT AD HOC

valid PC

Answer 14

S.18(4):

• upon payment of prescribed fee

Question 15

SPECIAL ADMISSION BY COURT AD HOC

name on the Roll

Answer 15

S.18(5):

• separate Roll is kept.

Question 16

SPECIAL ADMISSION BY COURT AD HOC

procedures for admission

Answer 16

S.18(2):

• Mode: Originating motion
• Service: to AG, BC & SB
• Payment: RM100

Question 17

SPECIAL ADMISSION

Foreign law firms - overview

Answer 17

1) Ways of admission
2) Permitted practice areas
3) Non-permitted practice areas

Question 18

FOREIGN LAW FIRMS

Ways of admission - overview

Answer 18

1) International partnership - S.40F
2) Qualified foreign law firm - S.40G
3) Employment of foreign lawyers - S.40J

Question 19

FOREIGN LAW FIRMS

International partnership

Answer 19

S.40F:

• at least 1 foreign lawyer to be equity partner, reside in MY not less than 182 days.
• MLF: not less than 60% equity & voting rights
• FLF: not more than 40% equity & voting rights
• Foreign lawyers: not less than 40% of the total lawyers
• application: must submit 3-years business plan to BC, no change to business plan w/o approval by BC

Question 20

FOREIGN LAW FIRMS

Qualified foreign law firms

Answer 20

S.40G:

• at least two foreign lawyers who shall be equity partners.
• must reside in MY not less than 182 days.
• no. of MY lawyers: not less than 30% of the total lawyers.

Question 21

FOREIGN LAW FIRMS

Employment of foreign lawyers

Answer 21

S.40H:

• A MY law firm may apply to BC for license to employ a foreign lawyer to practise in the permitted practice areas;
• Number of foreign lawyers employed shall not exceed 30% of the total number of lawyers.

Question 22

FOREIGN LAW FIRMS

Permitted practice areas

Answer 22

• transactions regulated by MY law & at least one other national law; or
• transactions regulated solely by any law other than MY law.

Question 23

FOREIGN LAW FIRMS

Non-permitted practice areas

Answer 23

Inter alia:

• constitutional & administrative law;
• trust law;
• retail banking;
• registration of patents & trademarks.

Question 24

SIJIL ANNUAL

Sijil Annual 101

Answer 24

1) What:

• Certificate issued by BC;
• Seek to verify matters under S.32(1)(a) - (e)

2) Why it is important:

• Declaration under S.29;
• Requirements to practice as A&S under S.36;

3) Purpose of sijil annual:
- to verify matters under S.32;
4) power to issue sijil annual:
- conditions: S.32
5) powers to refuse issuance:

• Yip Shou Shan v Majlis Peguam Malaysia
• Diljit Kaur v Puran Singh