BC/G/31
16 August 1943 – 29 January 2023
Members of the Malaysian Bar, and the public in general will be aware of the public outpouring of affection and admiration for my late father in the wake of his sudden passing on 29th January 2023. As I reflect on the past year, it is clear that my father’s loss was not just a personal one, but a loss to the profession and, as the Prime Minister Dato’ Seri Anwar Ibrahim said in his condolence message to my family, a great loss to the nation.
For my part, I wish to recognise one of the giants of the Malaysian Bar, and one of the greatest judges this country has seen, as well as the most prolific.
It is rare for a lawyer to achieve greatness both as a barrister and a judge. History provides few examples. The closest that comes to mind is Sir Charles Russell, later the first Lord Russell of Killowen. Norman Birkett said of Charles Russell that what made him distinct was ‘the innate quality with which he was born, the nature of his forceful personality with which he could dominate and overwhelm other men, whether they were jurymen, witnesses, or judges.’ Lord Bowen described Russell as an ‘elemental force’, and Foote KC said of him, ‘As a great personality and an elemental force, Russell was more than pre-eminent, he was overwhelming.’
Anyone who interacted with my late father, whether through the profession or otherwise, would acknowledge that the same was true of him.
I was too young to have seen him in court at his height during the 80s and early 90s. However, I am grateful to my mother, who did see him at his peak. The stories she shared with me over the years give an insight into the careful planning and strategy required to conduct complex litigation.
As an advocate, he has been described as ‘silver tongued’, and one of the most feared and proficient cross-examiners of his generation. As a cross-examiner he was always polite even as he was forensic. When I asked my father about this, he said ‘I always got much more out of a difficult witness by charming him than by quarrelling with him. The best is when a witness gets on with you so well that he is totally unaware that he is making fatal concessions.’
My father’s example was a perfect illustration of Lord Bowen’s famous observation, that ‘Cases are won in chambers.’ Though my father made things look easy in court, this was only possible by the most meticulous preparation, and a remarkable capacity for internalising the brief. This was of course only made possible by incalculable understanding and support from my mother.
Among his greatest assets was his sense of humour, and his skill in finding the right opportunity to use it. Using humour in court is not something that can be easily replicated. But when deployed judiciously, there can be no greater weapon in an advocate’s arsenal, and no one was more skillful than my father in this regard.
In addition to his ability as lead counsel, my father made himself an indispensable junior with his dedication, enthusiasm, and willingness to accept responsibility for the whole case and not merely the work he was assigned. He abhorred doing just the minimum. He was a particular favourite of Robert Cheliah who on one occasion recognised my father’s efforts in a losing case, saying, “Even though we lost the case, I must commend you on your part of the presentation. It’s as important to present well in a losing case as in a winning case.”
In another memorable case, the Tun Mustafa trial in Sabah, where two Chief Ministers were appointed on the same day, my father was led by Raymond Kidwell QC. Even before the case had concluded, Kidwell awarded my father a Red Bag. In his letter of award, Kidwell emphasised the rarity of the awarding of a Red Bag, and wrote the following:
‘Your help in the Sabah Case has been inestimable. You fed me with otherwise
inaccessible material from all countries, discussed and illuminated it, and contributed
in a very large measure to our winning the preliminary point in Kota Kinabalu.
Whatever may happen later in the case, this Red Bag is already fully deserved…’’
I greatly enjoyed the many conversations I had with my father about his work, particularly his time in practice before his elevation to the bench. He provided valuable insights into the qualities required in an advocate. He taught me many things, but perhaps the most important lesson was that courage is indispensable to an advocate.
My father’s courage meant he never turned away a case because it might be politically difficult. He also never joined any political party, which removed a potential barrier to accepting instructions. He fought relentlessly and fearlessly for every client, setting the bar for the performance of an advocate’s fiduciary duties. His courage steered him in building his practice from the ground up. Early in his career, his fledgling practice though not struggling, was not yet flourishing. However, he never lost faith, and eventually he obtained recognition after a landmark victory in Dr Dutt’s case, resulting in an award in damages which, at the time, was a record award in the Commonwealth for wrongful dismissal.
My father’s intrepidity was inherent to his character. At the 1990 Commonwealth Law Conference in Auckland, New Zealand, he was presenting a paper at the plenary session alongside Sir Robin Cooke, later Baron Cooke of Thorndon, and Sir Patrick Neil, later Baron Neil of Bladen. On the second day of the conference, my father took the opportunity at a Q&A session to ask the Chairman of the English Bar, Peter Cresswell, about a proposal to segregate Bar school education: one for foreign students and the other for UK citizens. My father asked what Mr Cresswell proposed to do about it. Peter Cresswell said that he would look into the proposal as soon as he got back, and to his credit, he stopped it from coming into effect. Legal professional education in England remains unsegregated to this day.
In 1994, my father was invited to be among the first cohort of judges to join the newly formed Court of Appeal. Though he regarded joining the Court of Appeal as an important service to the country, it was not an easy decision for him, as his practice was then unrivalled. As my father put it, with typical humility, ‘it’s like taking off your star striker and making him the referee’. Nevertheless, my father threw himself into his judicial work with the same work ethic which built his career at the Bar.
His body of judicial work is well-known. There are few areas of the law which are not heavily influenced by his judgments. This is at least in part because of the breadth of my father’s practice. He dominated criminal, civil, commercial, and public law practice, and brought this wide experience to the bench. He was also greatly interested in the jurisprudence of other jurisdictions, particularly India and South Africa, which was reflected in his staggering collection of books.
As for his judicial manner, he always held advocates to his own exemplary standards of preparation and presentation. I was fortunate to see my father on the bench many times, though not as an advocate. He had an eye for decorum and deplored unnecessary distractions. And, of course, he had no qualms about expressing his views on the preparation, or lack thereof, of any advocate appearing before him, often with devastating wit. No one at counsel’s table was exempt, even if you were not on your feet.
His criticism could be all-encompassing. On one occasion, when an advocate was consistently being fed inaccurate references by his juniors, my father said to him, ‘Your juniors have left you like a brachiating primate, without a vine to cling to.’
This could be amusing, provided one was observing from a suitably safe distance and not down-range. But there is one important aspect of my father’s judicial manner which is much overlooked, and it deserves mention here. Legal education was always on his mind, and he was just as concerned to highlight good examples of advocacy. Once, when I was down from university, I attended a session of the Court of Appeal. The bench that day was, to put it delicately, rather interventionist, comprising the late Datuk Dennis Ong, Tan Sri Ghazali Yusuf, and my father in his favoured position at centre-forward. The first advocate who addressed the court was exceptional. I do not recall the substance of the matter, but I do remember realising that I was watching an entirely different level of ability. Without respite, the Court dragged counsel out of the order of his submissions. Unfazed, counsel answered every question immediately, concisely, and for the most part without referring to his papers. At the conclusion of the matter, my father said this:
‘I know you were expecting your matter to be called in the afternoon. I apologise for
changing the order of the list and calling you first. I wanted you to go first because
there are a lot of young lawyers in court today, and I wanted them to see how an
appeal is supposed to be presented.’
So, while it is true that my father could at times be critical, he did not withhold praise when it was deserved.
Outside the courtroom, my father’s interest in education remained paramount. He founded the Malaysian branch of the Lincoln’s Inn Alumni society, the first of the Inn’s Alumni societies in Malaysia, in the hope that it would play a substantial role in professional education here.
His interest in legal education took him around the world. Memorably, he was, as far as I know, the only Malaysian ever invited to judge the annual Oxford/Cambridge Moot, at which my family and I were fortunate to be present.
It is comforting to know that through my father’s extraordinary contributions on the bench, his name will continue to be heard in the courts. As a personality, he had perhaps the most magnetic presence these courts are likely to see. He was fascinating, brilliant, generous, witty, charming, brazen, implacable, infuriating, flamboyant short of meretricious, studious, outrageous, and genuinely funny.
In the same vein as my opening, I gratefully adopt the words of Sir Robert Finlay, the Attorney General who spoke on a similar occasion in memory of Charles Russell:
‘It is, as yet, difficult to speak of [him], particularly in this court where one still seems
to see his form and his glance, and which still seems to echo his voice. In him we have
lost a consummate advocate, a great judge, and a true friend. The Bar recognise that
we had in him perhaps the most commanding personality that has ever adorned our
great profession. By common consent no one was more desired as a colleague or
more dreaded as an antagonist. His forensic eloquence recalls what was said of the
greatest orator and advocate of all time: that his dominant characteristic was reason,
penetrated and made red-hot by passion. He commanded success alike by the
magnificent force of his personality, by the brilliance of his intellect, and by that
capacity for taking pains, in which he was hardly, if ever, surpassed.’
I thank the Court and the Kuala Lumpur Bar Committee for affording my family the opportunity to pay tribute to my father and a great member of our profession. No one who knew him can ever forget him.
Contributed by Vinayak Sri Ram (Son)