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Wednesday, September 29, 2010

The “Bagi Chance” Principle


A discussion about one of the most unique and widely and frequently applied principle of law in Malaysia but not documented in any legal journal, legal textbook or academic treatise.

There is a very interesting principle of common law that is unique only to the Malaysian judiciary. Though it draws its existence from the common law, it has no equivalent in England or any other civilized jurisdiction. I call it the “Bagi Chance” principle of law. Do not trouble yourself to look it up in the decided cases, legal textbooks or academic treatise. Don’t bother asking legal academics, corporate lawyers or even litigants about it. This elusive but very real principle operates daily and widely in the Malaysian judiciary and is only known to the judicial officers, judges and litigators (i.e. court going lawyers). This very article is the first attempt at document this perverse principle of law that operates extensively at all levels of the judiciary.

I shall talk about two cases in my experience that so embody the application of this principle so that we can dissect them and understand how and when this principle is exercised.

snakes and ladders die

First Example

The first relates to an application that was fixed for hearing before a Senior Assistant Registrar. The application was to enter judgment in default against a Defendant for his failure to file his statement of defence. We filed that application after giving the Defendant a 2 month extension of time within which to do so. Since he still could not do so, we filed the application. At the hearing, the Defendant still had not filed it for more than 5 months since entering an appearance; had not filed an application for an extension of time to do so; and had not filed an affidavit in reply to the application. We were not contacted earlier by the Defendant’s solicitors to request for an adjournment. In sum, the Defendant had done nothing when the application come up for hearing. In these circumstances, what should have happened was that our application should have been allowed for the facts mentioned earlier.

But what happened was this: Only on that morning the Defendant’s counsel begs for an adjournment from the Registrar. She offers the excuse that her client was ill all this while and that was the reason they have not filed the statement of defence. No medical certificate or medical report was tendered. I opposed the adjournment application and cited all the facts mentioned earlier. I also pointed out that the Defendant’s counsel was making statements from the Bar (see the Explanation 1 at the end) and the court was not to take any of it into account.

However the Registrar rode roughshod over all my objections and dismissed them with saying something like, “Bagi chance lah, Encik Fahri. Dia sakit. I am granting the adjournment.” At that, I requested for costs of the adjournment since I was prepared (written submission and bundle of authority despite it not being contested). The Defendant’s counsel objected and said that the adjournment was a result of matters now within her control. I, however, pressed for costs and was informed, “Bagi chance lah, Encik Fahri. Why you ask for costs? Today is not your day. Maybe another day is your day. On that day you can get costs.” Adjournment allowed with no order as to costs and another date was fixed for the application. Its been several years since and I still don’t understand what she meant about my day and getting costs on it.

Second Example

The second relates to a matter that I supervised and was present when it happened. There was an appeal after a trial in the Court of Appeal against our client who was a Respondent in the proceedings. The record of appeal had not been filed in many years because our client had wound up the Appellant after the trial. Because of that, we filed an application to strike out the appeal because there was no record of appeal filed.

When the application came up for hearing before the Court of Appeal, an officer from the Official Receiver, Malaysia’s office (because they were appointed the provisional liquidators) appeared on behalf of the Appellant. She requested for an adjournment to find out from the former directors whether they should proceed with the appeal. We were not informed of the intended adjournment prior to the hearing. No extension of time application to file the record of appeal out of time was filed. The record of appeal was still not filed. There was also no affidavit in reply to our application to strike out the appeal. In those circumstances, our application should have been allowed.

But this is what happened: After the Official Receiver’s officer made the application, my colleague opposed the application and submitted all those facts mentioned. Despite that the chairing judge told my colleague, “Bagichance lah for them to check whether they want the appeal to go on. There is no prejudice to you to adjourn the application.” After short argument, my colleague relented provided we were given costs of the day. Not only was this opposed but the chairing judge then suggested that my colleague withdraw the application because if it were merely adjourned then it would appear as if the bench had an outstanding matter. In her magnanimity the chairing judge said that she would order no costs for the withdrawal of the application. My colleague naturally disagreed and said that she was prepared to adjourn it and not withdraw it. However after a short discussion between them, the application was struck out with no order as to costs.

Bagi chance lah, you can always file it again if they don’t file the record of appeal later.

Analysis

From these examples, we can see that the Bagi Chance principle operates in favour of the breaching party that has failed or broken all their procedural responsibilities who has not made one meaningful attempt to oppose something. The opposing argument which is replete with merit and supported by evidence which in the ordinary course of events should succeed is instead dismissed or denied. Often the breaching party has no good reason also to seek an adjournment or a stay and does not even have to furnish one. The court simply assumes that the reason furnished is acceptable without probing deeply into its propriety. Rules of court are often ignored and judicial discretion is improperly exercised are always present during the application of the Bagi Chance principle.

This principle is ubiquitous and can arise in just about any hearing, discussion on costs, application, substantive hearing of an appeal, or even at trial.

We can surmise therefore that the Bagi Chance principle applies in circumstances when:

  • The breaching party is thoroughly unworthy of any mercy from the court.
  • The non-breaching party’s application or case is of merit and soundly supported by evidence.
  • There is a complete absence of any reasonable or acceptable reason for the exercise of mercy by the court.

It should be noted that there is no concept of ‘mercy’ that can be given by the court which is not supported by good reason and evidence, and exercised in the court’s absolute discretion. Even in the exercise of its inherent jurisdiction, the court still has to ensure that there exists a particular circumstances of the case that require the intervention of the Court i.e. merit (see Tuan Haji Ahmed Abdul Rahman v. Arab Malaysian Finance Berhad [1996] 1 CLJ 241).

I don’t know when this principle of law arose but it has been there right from the start of my practise and only exercisable by the courts. It is a principle to be deplored. I fervently hope for its extinction because it renders the law and its application uncertain. It is because of such whimsical acts or attitude that lawyers have great difficulty advising clients on the law as it applies and works in Malaysia.

How can you meaningfully explain to your client how an appeal or application would go when you turn up and then are told “Bagi Chance lah” and then lose the appeal or application when every case law, fact and evidence is in your client’s favour? And what is the client supposed to think when both you and he knows that you were supposed to win the case according to the law but he doesn’t and then the court does not provide any written grounds except a verbal “Bagi Chance lah”? What is your client who takes his case very seriously because it involves his rights, his property or his money is supposed to feel when you tell him that he lost because the court “Bagi Chance”? These concerns I am certain are wholly unaccounted for by the court when it does apply the Bagi Chance principle.

Most importantly why bother following procedure, obeying the law and ensuring proper evidence to support your case when it all can fall apart with the whimsical application of the Bagi Chance principle by the court? This “principle” should be eradicated from the Malaysian judiciary and the mindset of all judicial officers from top to bottoms. If it not, I would humbly request that the ancient form of dispute resolution of trial by battle be reinstated as an option. At least then I can dispense with bothering to stock and keep up to date our firm library and reading any tedious cases.

I can then convert our firm library to a gym and martial art dojo and conduct my legal research and preparation for a hearing accordingly.

[Explanation 1: A statement from the Bar is a important statement of fact made by a counsel that is not supported by any evidence, either documentary or affidavit. This is prohibited by the courts. See the Court of Appeal decision of Ng Hee Thoong & 1 Or v Public Bank Berhad [1995] 1 CLJ 609. I reproduce the relevant portion of judgment here (per Gopal Sri Ram JCA (as his Lordship then was)):

I have carefully perused the affidavit filed by the respondent in support of its summons for judgment (which is the only affidavit delivered by it) but have been unable to discover any such explanation as that alluded to by the learned Judicial Commissioner. The only reference to the delay point is to be found in the address of Counsel for the respondent in the Court below and the explanation is in reality that of Counsel and not of his client under oath. It is a principle fundamental to our system of adversarial litigation that evidence upon a matter must be given on oath. The practice of Counsel giving evidence from the Bar, as was done in this case, is to be deprecated. To act, as the learned Judicial Commissioner did in this case is to ignore the very basic tenets of the law of evidence that is applied by our Courts. Here was a positive assertion on oath by the appellants that there had been inordinate delay. The proper way in which that was to be met was by way of an affidavit in answer, explaining the delay. Once this is done, then it is up to the judicial arbiter to accept or reject the explanation proffered. But to ride roughshod over such an important point, as was done here, does little to advance the course of justice according to the law]

LB: Fahri Azzat no longer believes in aliens and the Bermuda triangle because they are too improbable. He enjoys vanilla ice cream best when its topped with hot caramel and a slice of banana, but only after completing a written submission. He is still unable to rear fish well. Please take pity on him. Courtesy of Loyarburok.com

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