Senior lawyer VK Lingam and major contributories involved in the Kian Joo Can Factory Bhd dispute who are facing contempt proceedings have failed yesterday to have Queen's counsel Sir Edward Garnier represent them in the Kuala Lumpur High Court.

The applicants are facing contempt proceedings over their allegation that a Federal Court judge had plagiarised a written judgment involving a civil suit.

Justice Zaleha Yusof delivered her oral judgment on the matter after hearing submissions from all parties.

Zaleha said while the court respects Garnier's eminent credentials as a former solicitor-general, the court finds there is no special circumstances to allow the application for his admission.

lingam tape hearing 300108 vk lingam 02 "I am of the opinion that the applicant (Garnier) had failed to show he is specially qualified to represent the case compared to a local counsel. Hence, this application is dismissed and cost within cost (legal term meaning cost will be determined at the end of the proceedings)," she said.

Garnier in his motion to represent Lingam ( left ) said he had been solicitor-general for England and Wales for two years, crown court recorder for 12 years and had dealt with points of law and specialised in contempt of court and defamation cases.

Almost all of judgment plagiarised

Counsel R Thayalan for Garnier said with such qualifications, the Queen's counsel was the right person to lend his expertise to the case as this is the first of its kind before the Federal Court.

"In this case, the major contributories have asked the Federal Court to review its grounds of judgment where 54 out of 56 paragraphs of the written judgment were copied almost word for word from the judicial commissioner and the liquidator's counsel submission. Only two paragraphs of the judgment were not copied.

"The issue of plagiarism in the Federal Court judgment has arisen for the first time in Malaysia and this clearly shows that there are no lawyers in Malaysia who are experienced in such a case.

NONE "There is not a single case in Malaysia that dealt with the issue of plagiarism in a Federal Court grounds of judgment as raised by the majority contributories," said Thayalan.

He pointed out that Garnier's (right) substantial judicial experience as former crown court recorder and solicitor general, is not available among local lawyers and his experience would be most important in dealing with the issue.

Thayalan also said this was the first time a lawyer (Lingam) in Malaysia had been accused of contempt of court for raising the issue of plagiarism in the Federal Court judgment.

He also stressed the government's efforts at liberalisation was meant to attract capable foreign lawyers to provide their expertise here.

AG and Bar Council object

In opposing the application, senior federal counsel Noor Hisham Ismail, who is representing the Attorney-General's Chambers, said there were no special circumstances to admit Garnier.

Bar Council representative CK Yeoh also raised objections to the application on the grounds that Garnier had not shown that he had special qualifications or experience "in the highest degree".

He pointed out that Rule 137 of the Federal Court Rules (on the power of review) is unique as it is only practised in Malaysia.

"Surely, Garnier does not have the special qualifications or experience in this area. In fact, there are numerous reported cases involving applications for review before the Federal Court," he said, adding that some prominent local counsel have already argued Rule 137 extensively.

Rule 137 states "for the removal of doubts, it is hereby declared that nothing in these rules shall be deemed to limit or affect the inherent powers of the court to hear any application or to make any order as may be necessary to prevent injustice or to prevent abuse of the process of the court."

Latest attempt to delay proceedings

Meanwhile, counsel for the liquidators Cecil Abraham said the court cannot allow "white people" to argue the case as if there are no capable local counsel around.

NONE He also said that a local counsel is probably more suited to argue these applications being more familiar with local laws and conditions, which are different from that in the United Kingdom as the law on judicial bias is different in Malaysia from the English law.

"The question is whether a local counsel who has the expertise of dealing with the matter and not whether there are local lawyers willing to act."

He also claimed that this could be the latest attempt to hold up the contempt applications, as this latest notice of motion will further delay the on-going case which is currently fixed for Jan 22 and March 6.

Thayalan said he will seek further instructions on whether to appeal yesterday's decision and if an appeal is filed, it would be heard directly in the Federal Court.