1. ) Chee Seong@Wong Chee Chong v 1. ) Ong Kar Voi (BA-12A-51-07/2021)

CHEE SEONG @ WONG CHEE CHONG

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ANUAR HAFIZ BIN ABU HASSAN … PERAYU-PERAYU

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… RESPONDEN (Berniaga sebagai Tetuan K.V. Ong RESPONDEN Chua & Partners) [Dalam Mahkamah Sesyen di Shah Alam Dalam Negeri Selangor Darul Ehsan Malaysia Guaman Sivil No: BA-B52-78-12/2020 (Dahulu sebagai Saman Pemula No.: BA-B54-27-10/2019) ANTARA DELIMA HANDAL SDN. BHD. … PLAINTIF S/N E1QtguNx7UaQpc8p08c4w

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… DEFENDAN- (Berniaga sebagai Tetuan K.V. Ong DEFENDAN Chua & Partners)

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… PLAINTIF- (Berniaga sebagai Tetuan K.V. Ong PLAINTIF Chua & Partners)

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CHEE SEONG @ WONG CHEE CHONG

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ANUAR HAFIZ BIN ABU HASSAN … DEFENDAN-DEFENDAN (MELALUI TUNTUTAN BALAS)] S/N E1QtguNx7UaQpc8p08c4w GROUNDS OF JUDGMENT

There are two (2) enclosures before this Court: a. Enclosure 1 is the Appellants/Defendants’ (in the counterclaim) appeal against the learned Sessions Court Judge’s decision allowing the Respondents/Plaintiffs’ application to recuse Messrs Abu Hassan & Associates to continue acting as the counsel and solicitors for and/or to represent the 2nd and 3rd Defendants (1st and 2nd Appellants) in the counterclaim at the Sessions Court suit BA-B52-78- 12/2020. b. Enclosure 9 is the Respondents/Plaintiffs’ (in the counterclaim) application to strike out the Notice of Appeal, or alternatively for an order to recuse and/or to disqualify Messrs Abu Hassan & Associates to continue acting as the counsel and solicitors for and/or represent the 2nd and 3rd Defendants (in the counterclaim) (1st and 2nd Appellant) in the current appeal.

The issues in this appeal are as follows: a. whether the Notice of Appeal filed by Messrs Abu Hassan & Associates after being recused is defective and whether Messrs Abu Hassan & Associates upon being recused by the Sessions Court Judge can continue to represent the 2nd and 3rd Defendants (the 1st and 2nd Appellants) in this appeal. S/N E1QtguNx7UaQpc8p08c4w b. whether the solicitors and partners of Messrs Abu Hassan & Associates being named as the 4th, 5th and 6th Defendants can continue to represent the 2nd and 3rd Defendants in the counterclaim suit at the Sessions Court;

For ease of reference parties would be referred to as they were in the counterclaim at the court below.

In the original suit at the Sessions Court, the Plaintiff, Delima Handal Sdn. Bhd. (Delima Handal), brought an action against the Defendants, the partners of Messrs K.V. Ong Chua & Partners, for recovery of the stakeholders’ sum of RM810,000.00.

Messrs K.V. Ong Chua & Partners then filed a Statement of Defence and counterclaim against Delima Handal and named five (5) other Defendants in their counterclaim for inter alia, fraud and conspiracy to injure against Messrs K.V. Ong Chua & Partners, the Plaintiffs in the counterclaim.

In the original suit, Delima Handal was represented by Messrs Abu Hassan & Associates. The dispute arose upon the filing of the counterclaim whereby the 4th, 5th and 6th Defendants in the counterclaim are the three solicitors and partners of Messrs Abu Hassan & Associates, and Messrs Abu Hassan & Associates continued to represent Delima Handal, the 2nd and 3rd Defendants.

The Plaintiffs then filed an application at Sessions Court to recuse Messrs Abu Hassan & Associates from representing Delima Handal in the original suit on the basis that the solicitors and partners of the said firm cannot represent the said three Defendants since the solicitors and partners of Messrs Abu Hassan & Associates are now the 4th, 5th and 6th Defendants in the counterclaim. The said application to recuse Messrs Abu Hassan & Associates from acting for Delima Handal was allowed by the Sessions Court.

In the meantime, Delima Handal was wound up in a separate action and the Plaintiffs had applied to strike out Delima Handal’s original suit under Order 18 rule 19 of the Rules of Court 2012. The application was allowed and as a result, Delima Handal’s original suit was struck out. However, the counterclaim remained.

Subsequently, the Plaintiffs filed an application in enclosure 60 at the Sessions Court to recuse Messrs Abu Hassan & Associates from acting for the 2nd and 3rd Defendants in the counterclaim on the same basis that the solicitors and partners of the said firm should not represent the said two Defendants since the solicitors and partners of Messrs Abu Hassan & Associates are the 4th, 5th and 6th Defendants in the counterclaim. The learned Sessions Court Judge allowed the Plaintiffs’ application. Hence this appeal to this Court.

The learned Sessions Court judge found that since Messrs Abu Hassan & Associates are also the co-defendants in the counterclaim, therefore, they would be in a conflict of interest and S/N E1QtguNx7UaQpc8p08c4w would cause embarrassment if they continued to represent the 2nd and 3rd Defendants, as the partners of Messrs Abu Hassan & Associates could be called as a witness in the counterclaim trial.

I refer to Rule 3 of the Legal Profession (Practice and Etiquette) Rules 1978; rule 5(a) of the Legal Profession (Practice and Etiquette) Rules 1978, and rule 28(a) Legal Profession (Practice and Etiquette) Rules 1978. It is trite that advocates and solicitors shall not act for a client and/or accept a brief that would embarrass him or that he has a personal relationship with a party or a witness of the said proceeding.

Having perused the application and the affidavits filed in enclosure 9 and the Records of Appeal for enclosure 1, and having read the submissions filed by both parties and upon hearing the parties’ oral submission, I ordered that the Plaintiffs’ application at enclosure 9 be allowed and the 2nd and 3rd Defendants appeal at enclosure 1 be dismissed. My reasons are stated below. A. Whether the Notice of Appeal filed by Messrs Abu Hassan & Associates after being recused is defective and whether Messrs Abu Hassan & Associates upon being recused by the Sessions Court Judge can continue to represent the 2nd and 3rd Defendants (the 1st and 2nd Appellants) in this appeal.

It is clear that the application for recusal at enclosure 60 at the Sessions Court was only to recuse Messrs Abu Hassan & Associates from acting and/or representing the 2nd and 3rd Defendants. The order by the learned Sessions Court judge did not affect the 4th, 5th and 6th Defendants. Therefore, the notice of appeal ought to be filed only by the 2nd and 3rd Defendants without including the three other Defendants in the Counterclaim (i.e the 4th, 5th and 6th Defendants), who are not the affected party by the Sessions Court’s order. Therefore, the notice of appeal filed by the 4th, 5th and 6th Defendants was without locus.

This appeal was only concerning the decision made on representing the 2nd and 3rd Defendants, thus the affected parties are the 2nd and 3rd Defendants. However, I find enclosure 9 was not opposed by the 2nd and 3rd Defendants. The said Defendants did not file any Affidavit in Reply. The deponent of the Affidavit in Reply to enclosure 9 was the 4th Defendant in the counterclaim, Loo Chay Meng. He had affirmed the said affidavit in his personal capacity. The said deponent is not a party to this appeal and therefore he has no locus. Adopting the principle set out in the case of Ng Hee Thong & Anor v Public Bank Berhad [1995] 1 MLRA 48, whereby the Court of Appeal held that ‘when one party makes a positive assertion upon a material issue, the failure of his opponent to contradict is usually treated as an admission by him of the fact so asserted’, I find the 2nd and 3rd Defendants had failed to refute the assertions of the Plaintiffs in enclosure 9 and as such it amounts to an admission of facts averred to by the Plaintiffs.

Further and importantly, the Sessions Court’s order dated 16.06.2021 is good and valid order. Thus, parties are to act according to the order until and unless it is set aside, stayed or overruled on appeal. By the said order, Messrs Abu Hassan & Associates were recused and therefore as a consequence, stopped and/or barred from acting for the 2nd and 3rd Defendants. By virtue of the said order, they were no longer the solicitors on record for the 2nd and 3rd Defendants. Since the Sessions Court’s order was not stayed, I am of the view that Messrs Abu Hassan & Associates have no authority to act on behalf of the 2nd and 3rd Defendants. Thus, the notice of appeal filed by Messrs Abu Hassan & Associates is bad in law and incompetent, and as such becomes defective. It is clearly a non-compliance and disobedience of the said court order. This in my view would amount to an irregularity or non-compliance which could not be remedied under Order 1A or Order 2 rule 1 of the Rules of Court 2012. B. Whether the solicitors and partners of Messrs Abu Hassan & Associates being named as the 4th, 5th and 6th Defendants can continue to represent the 2nd and 3rd Defendants in the counterclaim suit at the Sessions Court.

The partners of Abu Hassan & Associates are the co-defendants in the counterclaim. Upon perusal of the Counterclaim, I find that the claim is inter alia for purported fraud, deception, conspiracy and forgery by the 1st to 6th Defendants against the Plaintiffs. The Plaintiffs alleged that the 1st to 6th Defendants had by unlawful means conspired to cheat and/or commit fraud against the Plaintiffs, and had deceived the Plaintiffs for the return of the consultation fee

The facts in the counterclaim also suggest that the 4th, 5th and 6th Defendants have a personal relationship between them and the 2nd and 3rd Defendants; and due to their involvement in the subject matter of the suit i.e. the return of the consultation fee, they would have the confidential information as a result of having previously advised the 2nd and 3rd Defendants regarding the same matter. Thus, the 4th, 5th and 6th Defendants being the partners of Messrs Abu Hassan acting on behalf of the 2nd and 3rd Defendants in the same case for the same subject matter would have a conflict of interest and will cause embarrassment. In representing the 2nd and 3rd Defendant, the 4th, 5th and 6th Defendants are expected to be at the forefront to plead justice fearlessly in representing the cause of the 2nd and 3rd Defendant, yet with the personal involvement in the same case, the 4th, 5th and 6th Defendants might not do justice. This S/N E1QtguNx7UaQpc8p08c4w would cause prejudice and would not be in the best interest of the 2nd and 3rd Defendants.

The learned counsel for the 2nd and 3rd Defendants submitted that the 2nd and 3rd Defendants have a right to choose solicitors of their choice in representing them. I agree the 2nd and 3rd Defendants have their right to choose the solicitors of their choice, however, the court has a duty to ensure the due administration of justice is not in any way embarrassed. I drew guidance from the decision in the case of Wong Sin Chong & Anor vs Bhagwan Singh & Anor [1993] 1 MLRA 519, where the Supreme Court stated that: - “…The question whether the court has jurisdiction to forbid an advocate to appear in a particular case involves the consideration of conflicting principles. On the one hand, an accused person is entitled to select the advocate whom he desires to appear for him, and certainly the prosecution cannot fetter that choice merely by serving a subpoena on the advocate to appear as a witness. On the other hand, the court is bound to see that the due administration of justice is not in any way embarrassed. Generally, if an advocate is called as a witness by the other side, it can safely be left to the good sense of the advocate to determine whether he can continue to appear as an advocate, or whether by so doing he will embarrass the court or the client. If a court comes to the conclusion that a trial will be embarrassed by the appearance of an advocate, who has been called as a witness by the other side, and if, notwithstanding the court's expression of its opinion, the advocate refuses to withdraw, in my opinion in such a case the court has inherent jurisdiction to require the advocate to withdraw. An advocate cannot cross-examine himself, nor can he usefully address the court as to the credibility of his own testimony, S/N E1QtguNx7UaQpc8p08c4w and a court may well feel that justice will not be done if the advocate continues to appear. But, in my opinion, the prosecution in such a case must establish to the satisfaction of the court that the trial will be materially embarrassed, if the advocate continues to appear for the defence.” [emphasis added]

Taking into consideration of the Plaintiffs’ allegation that there was real and serious involvement and the conflict position of Messrs Abu Hassan & Associates whereby all the partners are the co-defendants of the counterclaim, I am of the view there is an obvious and serious conflict of interest and embarrassments if the 4th, 5th and 6th Defendants were to continue representing the 2nd and 3rd Defendants in the counterclaim.

Based on the facts stated in the counterclaim and aided by the authorities of Wong Sin Chong & Anor vs Bhagwan Singh & Anor (supra); Lee Kam Sun v Ho Sau Lin & Anor (supra); Quah Poh Keat & Ors v Ranjit Singh Taram Singh [2009] 1 MLRA 520, it is my considered view that the 4th, 5th and 6th Defendants’ conduct in representing the 2nd and 3rd Defendants as the solicitor and counsel in the counterclaim would be in breach of the Legal Profession (Practice and Etiquette) Rules 1978.

I, therefore, do not find any error in the findings and decision of the learned Sessions Court Judge.

For the reasons stated above, I, therefore, ordered Messrs Abu Hassan & Associates and/or any of its counsel to stop and recused S/N E1QtguNx7UaQpc8p08c4w from acting and/or representing the 2nd and 3rd Defendants in the counterclaim at Sessions Court suit BA-B52-78-12/2020. Hence, accordingly, I ordered that enclosure 9 be allowed with costs of RM5000.00 and enclosure 1 be dismissed with costs of RM7000.00. Dated: 21st day of November 2022 -sgd-JAMHIRAH ALI JUDICIAL COMMISSIONER High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the Appellants : Loo Chay Meng & Syazatul Akhyar (Messrs Abu Hassan & Associates) For the Respondents: Ong Kar Voi (Messrs K.V. Ong, Chua & Partners)