LoyarBurok Interview: NH Chan (Part 2)

Loyarburok is pleased to present its exclusive interview in five parts with the incorrigible, irrepressible and inimitable Chan Nyarn Hoi or NH Chan as he is known, Malaysia’s most famous retired Court of Appeal judge. This is Part 2.

Which is the case or the moment in your career:

– as a result of which you achieved most fame/notoriety?

I think it has to be the case of Rahman Talib v Seenivasagam & Anor [1965] MLJ 14 which brought me some degree of fame. Against us were the late Mr. RHV Rintoul (an English solicitor) and Graham Hill (a barrister). Graham Hill was brought in from Singapore specially to oppose me on the law raised by the defence – at the time I was a very junior member of the Malayan Bar and Graham Hill was a distinguished leader of the Singapore Bar.

When the appeal went to the Federal Court, which is reported at [1966] 2 MLJ 66, the Minister (Rahman Talib was the then Education Minister) had Eusoffe Abdoolcader as his leading counsel (never use “lead counsel” because it is not English to use a noun as an adjective when “leading” is already the adjective for it: see Fowler’s Modern English Usage). I argued the appeal for DR Seenivasagam against Eusoffe. SP Seenivasagam (the elder brother of DR Seenivasagam) appeared for Abu Bakar the other respondent in the appeal. I don’t think Eusoffe really forgave me for losing to a junior.

– of which you are most proud?

There are two cases.

As a trial judge in the High Court I tried Param Cumaraswamy – PP v Param Cumaraswamy [1986] CLJ (Rep) 606 – for sedition and acquitted him. It pleases me because the Public Prosecutor then was Abu Talib the Attorney-General and he did not appeal. So Cunaraswamy’s acquittal stayed.

The other case was when I was in the Court of Appeal where I delivered the judgment of the court in Ayer Molek Rubber Co Bhd v Insas Bhd [1955] 2 MLJ 734. I should not take all the credit for the decision. I had with me two great judges of the country who contributed to the decision, Siti Norma Yaacob JCA (as she then was) and KC Vohrah J (as he then was).

– of which you are most ashamed?

At page 57 of my book “How to Judge the Judges” I tell of how I had charged the Chairman of the Municipal Council of Ipoh, the late Dato’ Liew Whye Hon (I hope I spelt his name correctly), with contempt when he told the press that the Council would not abide by my decision in PP v Rajamah [1980] 1 MLJ 241.

I regretted having done that very much. I should not have reacted to the criticism in that manner. I was wrong and I stand corrected. Judges like myself should never be impatient of criticism. To use the language of Lord Denning, “We are not afraid of criticism nor do we resent it.”

Fortunately he apologized and I accepted it. It would have been catastrophic for me if I had punished him for contempt – I do not know how I could ever have lived it down. Had I convicted him of contempt, I would never have been able to write my book nor would I dare to judge the judges. I say this because the theme of what I am advocating in my writings is that judges should not abuse or misuse their power. Indeed, “judges are not interested in the pursuit of power. If they were they would not have become judges,” said Lord Nolan in his lecture Certainty and Justice: The demands on the Law in a Changing Environment in the Sultan Azlan Shah Law Lectures, page 313.

Judges should never be quick to punish lawyers – or anyone else – for contempt; they should leave it to the affected party or parties to enforce the judgment of the court. In my case, instead of citing Dato’ Liew for contempt, I should have left it to those who had suffered at the hands of the Municipal Council for being wrongly fined or convicted for alleged parking offences – which were outside the Council’s jurisdiction to punish – to take the necessary action or steps against the Council.

Remember the case of poor Tommy Thomas? He was wrongly cited for contempt by RK Nathan J. At page 61 of “How to Judge the Judges” I wrote: “If Mr. Thomas had broken the terms of the settlement agreement, it is for the plaintiffs to take whatever steps they think fit under the law to enforce the terms of the settlement. It is not for the judge to do so.” Mr Thomas had not committed contempt at all. He had been unjustly punished by a bad judge.

There is another thing of which I am not proud.

I don’t approve of the death penalty because it is a barbaric practice and not worthy of civilized behaviour, the ISA and the Sedition Act because they are draconian laws more in step with a dictatorship or a totalitarian form of government – such laws have no place in a democracy of a civilized nation. However, during times of conflict or war, such laws are necessary to contain enemy aliens but only on an ad hoc basis. They should never be used against the citizens of a country. Only a tyrant in a dictatorship or a despotic king would inflict such laws on its own people. Civilized people do not do so. But as a serving judge then I had no option but to apply the law as it stood because it is the duty and function of a judge to do so.

Do you have any favourite legal maxims?

None. I don’t believe in maxims. I suspect that if you have to rely on legal maxims, it is because you are unable to justify the principle of law that you are expounding.

A favourite law related book?

It has to be more than one book. Any of Lord Denning’s books, of course. He is still my favourite legal author. In fact, it was “Freedom under the Law” which I read when I was a student that started it all.

I also like Professor Geoffrey Cheshire’s leading textbook on Real Property – I mean the earlier editions, those in the fifties which I read as a student, where he described in great detail the historical aspect of English land law in a feudal society; things like seisin and copyhold; it is an excellent way to appreciate English legal history and the development of the common law of England.

At one time, when I was a student, I was an avid reader of Henry Cecil’s books. Of course, Glenville William’s Learning the Law was a must read during my student days – I wonder if it is still in print. There are practitioners’ books but I don’t read them; they are useful as reference books. As for the law reports, if you are in practice or if you are a serving judge you should keep yourself up-to-date by reading them.

But don’t read all of them – do not waste time on judgments on known law. You will find a surfeit of reports on known law in our law journals. Some judges would even refer to case after case of known law in their written judgment but that is a misguided show of erudition. An astute judge would just state the law briefly without any reference to long citations of cases because any law student will be able to tell you it is there in his student’s textbook.

Favourite non law related (fiction and non-fiction) book?

Can I mention more than one book? G M Trevelyan, “History of England” because the common law of England is entwined in the history of England. “The Complete Illustrated Works of Lewis Carroll” and “The Complete Works of William Shakespeare”. It is also essential to have Fowler’s Modern English Usage (I have the second edition revised by Sir Ernest Gowers) by my side – Sir Winston Churchill swore by it.

All time favourite judge and why?

Lord Denning, of course. For without him, I would have no one to emulate especially in his writing style where he made difficult law so easy to understand. Without him law is a very dull subject. Also, it was because of him that the law of estoppel by conduct has developed into what it is today – shorn of all maxims and limitations.

Furthermore, I must mention this. In 1949 after he delivered the Hamlyn lectures Lord Denning lamented (The Family Story, page 180):

“Our procedure for securing our personal freedom is efficient, but our procedure for preventing abuse is not. Just as pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up-to-date machinery, by declarations, injunctions and actions for negligence: and, in judicial matters, by compulsory powers to order a case stated. …The courts must do this. Of all the great tasks that lay ahead, this is the greatest. Properly exercised the new powers of the executive lead to the Welfare State: but abused they lead to the totalitarian State. None such must ever be allowed in this country.”

That lecture was given in 1949. 30 years or so later in the Family Story, 1981 he opined:

“I think we can say that we have achieved what I then hoped for. We have now new and up-to-date machinery for the winning of freedom. We have declarations, injunctions, actions for negligence and judicial review.”

I must say we owed much to the efforts of Lord Denning for the winning of freedom in the new age. “All that is needed now is for the judges – and the Bar – to get to know how to use it”, he said.

Sadly, in this country as we have seen in recent events, our judges have failed to do their duty. “To my mind it is fundamental in our society that a judge should do his utmost to see that powers are not abused or misused,” said Lord Denning, at page 179, in the Family Story.

He added, “If they come into conflict with the freedom of the individual, or with any other of our fundamental freedoms, then it is the province of the judge to hold the balance between the competing interests. In holding that balance the judges must put freedom first.”