Beh Pau Chiang (L) (No.KP: 790617-02-5603) v Lim Sheau Huey (P) (No. KP: 791203-14-5028) (PA-33-38-02/2021)

Antara Beh Pau Chiang (L) (No.KP: 790617-02-5603) ... Pempetisyen Dan Lim Sheau Huey (P) (No. KP: 791203-14-5028) ... Responden 2 JUDGMENT Introduction [1] This is an application (enclosure 15) by the petitioner to disqualify Mr Lim Kian Leong, an advocate and solicitor and his legal firm, Messrs Lim, Ho, Cheong & Lok from acting for the respondent in the instant divorce proceedings. The petitioner also seeks an order that the respondent appoint other solicitors to represent her in these divorce proceedings and/or any connected proceedings. [2] The petitioner’s application is predicated on rules 3, 4, 5, 28 and/or 35 of the Legal Profession (Practice and Etiquette) Rules

Hereinafter all rules referred to refer to the Legal Profession (Practice and Etiquette) Rules 1978 unless stated otherwise. Besides the above-mentioned rules, the petitioner also relies on O. 92 r. 4 of the Rules of court 2012 to disqualify Mr Lim Kian Leong and his legal firm. [3] On 31.12.2021, I dismissed the application. This judgment contains the grounds for my decision. 3 The Background facts [4] The instant divorce petition was filed on 5.2.2021 wherein the petitioner is the husband and the respondent is the wife. The petition was filed on behalf of the petitioner by Messrs Tan & O.G. King. [5] About a year prior to the filing of the divorce petition the petitioner had already retained Messrs Tan & O.G. King while the respondent had retained Messrs Lim, Ho, Cheong & Lok in view of their intended divorce. [6] Notwithstanding having retained solicitors to act for him, the petitioner communicated personally via email with the respondent and then with her solicitors for a round table discussion to settle the matter. For each such attempt, Messrs Lim, Ho, Cheong & Lok wrote a letter to Messrs Tan & O.G. King informing them of the petitioner’s actions. In the first letter dated 11.2.2020 the following was said: We wish to draw attention that your client had demanded to response to your client by way of email to 4 our client notwithstanding our letter addressed to your goodselves that we are representing Ms Lim Sheau Huey. The parties are already involved in contentious matrimonial proceedings. In this regard our client prefers to make her requests via our firm to avoid any miscommunication or misunderstanding. We are instructed once more to request that your client ceases and desists from conveying your client’s offers directly to our client. while in the second the letter dated 18.2.2020 the following was said: We wish to draw attention again to the fact that your client had contacted us via email to directly discuss your client’s proposal for settlement. Kindly advise your client to refrain from contacting us directly so as to avoid any complication. 5 [7] Thereafter, the petitioner approached Messrs Lim, Ho, Cheong & Lok informing them that he had discharged Messrs Tan & O.G. King and sought a meeting to settle the matter between him and the respondent amicably. To confirm the alleged discharge, Messrs Lim, Ho, Cheong & Lok took the appropriate action by calling Messrs Tan & O.G. King on 26.2.2020 and followed up on the same day with a letter. The petitioner’s averments [8] The respondent averred that she was reluctant to have a meeting but ultimately agreed to meet the petitioner with her solicitor, Mr Lim Kian Leong to resolve the divorce amicably. The meeting between the petitioner, respondent and Mr Lim Kian Leong was eventually on 9.8.2020, about five months later, at the premises of Messrs Lim, Ho, Cheong & Lok. [9] The petitioner in his affidavit in support averred the following:

he contacted Mr Lim Kian Leong who agreed to 6 represent him and subsequently informed him that the respondent was also agreeable to the suggestion;

(ii) in the meeting held on 9.8.2020, he was advised by Mr Lim Kian Leong and had reached an agreement with the respondent whereupon Mr Lim Kian Leong was instructed to file a joint petition for divorce on terms of which are as follows –

his ½ share in the matrimonial home is transferred to the respondent;

the respondent’s shares in two properties - one at Lorong Seri Permai, Bukit Mertajam and the other at Bandar Tasek Mutiara, Simpang Empat be transferred to the petitioner;

the petitioner retains full ownership of the property at Jalan Desa Ara, Tasek Gelugor; 7

that the business known as PLNB Project Management in the respondent’s name is to be wholly transferred to the petitioner;

the instalments for the car owned by the respondent will be paid by PLNB Project

the petitioner and respondent are to have joint custody, care and control of the two children of the marriage;

the petitioner will continue to pay for the insurance policies taken out for the children of the marriage;

the petitioner will pay the respondent RM1,500.00 a month as maintenance for the children of the marriage; and 8

50% of his Employees Provident Fund (“EPF”), from the date of marriage to October 2020, is for the benefit of the children of the marriage. [10] The petitioner further averred that on 11.8.2020, two days after the meeting, he supplied Mr Lim Kian Leong the following confidential documents and information (“the confidential information”) at the latter’s request which was allegedly made at the said meeting:

The four sale and purchase agreements of the said properties and the bank’s offer letter for the loans taken for each property;

his Employees Provident Fund (EPF”) statement;

particulars of insurance policies taken for the benefit of the children of the marriage; and

the username and login password to gain access to the accounts of the said insurance policies. 9 [11] The petitioner averred that Messrs Lim, Ho, Cheong & Lok had failed to prepare the joint petition for divorce although several reminders were given by him on 24.8.2020, 1.9.2020, 3.9.2020,

21.9.2020, 22.9.2020, 7.10.2020 and 12.10.2020. The respondent’s averments [12] The respondent first and foremost refuted the averments made by the petitioner of an agreement between her and the respondent. She said that the settlement proposed by the petitioner was lob-sided and showed the greedy nature of the petitioner who wanted most of the matrimonial assets including transferring the business she wholly owned known as PLNB Project Management to the respondent. The petitioner said that she disagreed with the terms and refused any settlement by way of a joint petition for divorce. The respondent also stated that she refused to counter propose against the petitioner’s conditions for a joint petition for divorce. [13] Secondly, the respondent averred that the documents and information were not sought by her solicitors at her instructions. She said that the documents were not confidential information as 10 she being joint owner of the properties already had possession of the same documents including the insurance policies taken out for the children of the marriage. She further averred that the EPF statement is a document that the petitioner would have to in any event disclose at the trial. She averred that the petitioner voluntarily gave the said documents and information to show that he was a client of Messrs Lim, Ho, Cheong & Lok when he was not. [14] Thirdly, the respondent vehemently denied ever agreeing to a joint petition for divorce or instructing Mr Lim Kian Leong or Messrs Lim, Ho, Cheong & Lok to prepare the same. She said that she had instructed Mr Lim Kian Leong not to entertain the petitioner and this fact was proved by Messrs Lim, Ho, Cheong & Lok refusing after the meeting to entertain the petitioner’s emails as evidenced by the reminders. [15] Fourthly, the respondent averred that at no time was Messrs Lim, Ho, Cheong & Lok retained to act for both parties. She said that Mr Lim Kian Leong and his legal firm were her solicitors and she paid them for the services rendered to her. She refuted the allegation that she had paid fees for a joint petition for divorce as 11 alleged by the petitioner or had paid her solicitors on behalf of the petitioner. She averred that she was advised by her solicitors that Messrs Lim, Ho, Cheong & Lok were never at any time acting for the petitioner. [16] The matter rested until the petitioner filed the instant divorce petition on 5.2.2021 through his previous solicitors, Messrs Tan & O.G. King. Analysis and decision [17] On 1.9.2021 the petitioner filed the instant application to disqualify Mr Lim Kian Leong and Messrs Lim, Ho, Cheong & Lok from representing the respondent in the said divorce proceedings. The relevant provisions of the Legal Profession (Practice and Etiquette) Rules 1978 relied by the petitioner to disqualify Mr Lim and his legal firm are reproduced below with the relevant parts in bold: 12

An advocate and solicitor shall not accept a brief if he is or would be embarrassed.

An embarrassment arises:

where the advocate and solicitor finds he is in possession of confidential information as a result of having previously advised another person in regard to the same matter;

(ii) where there is some personal relationship between him and a party or a witness in the proceedings. Rule 4 No advocate and solicitor shall accept a brief in a case where he knows or has reason to believe that 13 his own professional conduct is likely to be impugned. Rule 5

No advocate and solicitor shall accept a brief if such acceptance renders or would render it difficult for him to maintain his professional independence or is incompatible with the best interest of the administration of justice.

(i) An advocate and solicitor who has at any time advised or drawn pleadings or acted for a party in connection with the institution or prosecution or defence of any suit, appeal of other proceedings shall not act, appear or plead for the opposite party in that suit, appeal or other proceedings.

(ii) An advocate and solicitor shall not act unless the consent of the first party for 14 whom the advocate and solicitor acted is obtained in writing and the advocate and solicitor is not embarrassed by so acting. Rule 28

An advocate and solicitor shall not appear in Court or in Chambers in any case in which he has reason to believe that he will be a witness in respect of a material and disputed question of fact, and if while appearing in a case it becomes apparent that he will be such a witness, he shall not continue to appear if he can retire without jeopardising his client's interests.

An advocate and solicitor shall refrain from any action whereby for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by the client. 15

An advocate and solicitor shall preserve his client's confidence and this duty outlasts his employment. Petitioner’s grounds for disqualification [18] The petitioner, in the application, put forth the following grounds to disqualify Mr Lim Kian Leong and Messrs Lim, Ho,

Conflict of interest. The petitioner said that he had obtained legal advice from Mr Lim Kian Leong on matters concerning the divorce between the petitioner and the respondent in the meeting held on 9.8.2020. At the conclusion of the meeting the petitioner gave instructions to Mr Lim Kian Leong to prepare a joint petition for divorce on the terms as agreed by the petitioner and respondent at the said meeting. Two days later the petitioner supplied the confidential documents and information which was the basis of the settlement to Messrs Lim, Ho Cheong & Lok. As a result, it is submitted that a conflict of interest as arisen that refrains Mr Lim Kian Leong and by extension 16 anyone from Messrs Lim, Ho Cheong & Lok to represent the respondent.

(ii) Potential witness. Mr Lim Kian Leong is a potential witness because he was involved in the negotiation between the petitioner and respondent in a meeting held on 9.8.2020. Confidential information and solicitor and client relationship [19] The first issue is whether the alleged documents and information supplied by the petitioner to Messrs Lim, Ho Cheong & Lok came within the ambit of “confidential information” sufficient to disqualify the said legal firm from representing the respondent. The second issue is whether by supplying the alleged “confidential information” gave rise to a relationship of solicitor and client between the petitioner and Messrs Lim, Ho Cheong & Lok. [20] In this regard the principles in the following cases are instructive. The first case is Mirza Mohamed Tariq Beg Mirza 17 HH Beg v. Margaret Low Saw Lui & Ors [2009] 4 MLJ 671 (“Mirza Mohamed Tariq Beg”) where the following appears: [16] … First, for the principle of confidentiality to apply warranting a court to intervene, there must first be established a relationship of solicitor and client or some other fiduciary relationship. The facts of Hardless v. Hardless AIR 1932 Allahabad 536 provide a good example as to how the principle is to be applied. In that case, the respondent to a divorce petition wrote to a counsel referring to complaints that he had against his wife and stating that he desired to take action so that he might obtain custody of the children. However, the latter did not definitely engage counsel's services. Later, the said counsel was engaged by the petitioner to act for her and the respondent husband made application to prohibit him from acting in the matter. The court dismissed the application and held as follows: … In order to prevent counsel appearing for the other party, he must have a definite retainer with a fee paid or he must have had 18 such confidential information from one of the parties as would make it improper for him to appear for the other party… Second, it depends on the facts of each case whether confidential information was conveyed. In order to bar a solicitor or other fiduciary from acting, the applicant must place before the court full particulars of the relevant confidential information that was allegedly disclosed to the solicitor or fiduciary. Mere general or vague allegations are insufficient. As was stated in State v. Lalit Mohan Nanda AIR 1961 Orissa 1: ... the onus of proving that confidential information was conveyed lies heavily upon the applicant. [21] The second case is Prince Jefri Bolkiah v KPMG (a firm) [1990] 2 AC 222 where the following principle enunciated by Lord Millet was approved by the Court of Appeal in Mirza Mohamed Tariq Beg: 19 It is in any case difficult to discern any justification in principle for a rule which exposes a former client without his consent to any avoidable risk, however slight, that information which he has imparted in confidence in the course of a fiduciary relationship may come into the possession of a third party and be used to his disadvantage. Where in addition the information in question is not only confidential but also privileged, the case for a strict approach is unanswerable. Anything less fails to give effect to the policy on which legal professional privilege is based. It is of overriding importance for the proper administration of justice that a client should be able to have complete confidence that what he tells his lawyer will remain secret. This is a matter of perception as well as substance. It is of the highest importance to the administration of justice that a solicitor or other person in possession of confidential and privileged information should not act in any way that might appear to put that information at risk of coming into the hands of someone with an adverse interest. 20 [22] I have no hesitation in holding that the documents and information supplied by the petitioner was not information the type of which would disqualify Mr Lim Kian Leong or Messrs Lim, Ho Cheong & Lok. The documents and information were not confidential as the respondent has already with her the said documents and information. The respondent was after all the joint owner of the said properties and already had knowledge of the insurances purchased for the children. The password to access the insurance policies is of no relevance at the trial. What would be of relevance is the amount paid by the petitioner for the insurance policies to address the issue of maintenance for the children. The EPF statement is a document which would eventually be produced for the purposes of the trial of the divorce proceedings to address the issue of maintenance either by way of discovery or through an order of court. Thus, whatever document or information that is already in possession of the adverse party or can be obtained by way of discovery does not fall within the ambit of “confidential information” which is sufficient to disqualify an advocate and solicitor or his legal firm. [23] On the second issue which is also connected with the first issue, it is my finding, on the evidence produced before me that 21 a relationship of solicitor and client had not arisen between the petitioner and Messrs Lim, Ho Cheong & Lok. In the present case it is not disputed that the petitioner did not pay any fees to Messrs Lim, Ho, Cheong & Lok. There is also no evidence of a retainer between the petitioner and Messrs Lim, Ho, Cheong & Lok. In the affidavit in support the petitioner is relying on the fact that the respondent has paid Messrs Lim, Ho, Cheong & Lok on his behalf for a joint petition for divorce. The respondent refuted this allegation and vehemently denied that any instructions were given for a joint petition for divorce by her or that any fees had been paid by her on behalf of the respondent. The fact that no joint petition for divorce was prepared for the parties to sign and for the purpose of filing thereafter is evidence of such fact. [24] In the written submissions the petitioner now states that a solicitor and client relationship is to be implied based on the principle propounded by the Federal Court in Gurbachan Singh Bhagwan Singh & Ors v. Vellasamy Pennusamy and Other Appeals [2015] 1 CLJ 719 in the following passages: [35] It is trite law that in an action against a solicitor by his or her erstwhile client the threshold issue is whether 22 a solicitor-client relationship exists between the plaintiff-client and the defendant-solicitor. In the absence of such relationship the defendant-solicitor in his professional capacity owes no duty to the plaintiff-client. [36] A solicitor-client relationship may arise either:

by an express agreement between a solicitor and a client; or

where there is express assertion by a solicitor to act for the client; or

it may be implied. [37] Where it is to be implied it is for the purported client in an action against a solicitor to prove the existence of a solicitor-client relationship between them. Proof of such relationship requires an objective consideration of all the facts and circumstances in order to come to a reasonable conclusion: 23

that the purported client has sought for advice or assistance from the solicitor;

that the assistance sought for was within the professional competence of the solicitor;

that the solicitor expressly or impliedly agreed to provide such assistance or reasonably should know that the purported client would reasonably rely on him to provide the assistance; and

that it was reasonable for the purported client to believe that the solicitor was representing him. [38] It is therefore a matter of evidence to determine whether a solicitor-client relationship exists. Hence, it is essential to consider such evidence adduced including the words and conduct of the parties towards each other. It is also to be noted that fee arrangement or payment is not determinative of the existence of a solicitor-client relationship. 24 [25] I find that the evidence does not disclose an implied relationship of solicitor and client. It must be remembered that Mr Lim Kian Leong had been retained by the respondent and was already acting for the respondent. It was the petitioner who wanted a meeting to be held with the respondent and/or her solicitors to settle the matter. The meeting could have taken place with the presence of an advocate and solicitor from Messrs Tan & O.G. King. But the petitioner chose the strange route of discharging his solicitors to have the meeting. So, this is not a case where the petitioner had sought out advice and assistance of an advocate and solicitor or his legal firm. The petitioner sought out Messrs Lim, Ho, Cheong & Lok to have a meeting with the respondent, their client, to settle the matter obviously without the presence of his solicitors. Only then was the meeting held on agreement by the respondent for settlement purposes. The petitioner was never a client of Mr Lim Kian Leong or Messrs Lim, Ho, Cheong & Lok who were at all material times the solicitors of the respondent at the meeting which was called for by the petitioner. The petitioner was representing himself at the meeting. 25 Potential witness [26] The petitioner submitted that Mr Lim Kian Leong was involved in the negotiation between the petitioner and respondent in the meeting held on 9.8.2020 and at the conclusion of the meeting was given instructions by the parties to prepare a joint petition for divorce based on agreed terms. Mr Lim Kian Leong is alleged to have failed to prepare the same and therefore has to give viva voce evidence for his failure to do so. The case of Ester a/p Doraisamy v Vijayan a/l Gopal [2021] MLJU 1099 (“Ester Doraisamy) where it was held that the advocate and solicitor was a potential witness was cited in support on account of the facts of the case being similar to the instant case. [27] I find the submission devoid of merit. Firstly, the facts which form the basis of the submission are not established or as shown above vehemently refuted by the respondent. There was no agreement reached by the parties and Mr Lim Kian Leong was at the meeting as solicitor for the respondent. The meeting was held at the request of the petitioner. The respondent has stated that she never agreed to a joint petition for divorce or gave any instructions to Mr Lim Kian Leong to prepare a joint petition for 26 divorce. This is evidenced by the fact that no joint petition for divorce was even drafted by her solicitors. [28] Second, the case of Ester Doraisamy is not similar and easily distinguishable from the facts of the instant case. In Ester Doraisamy the advocate and solicitor in question had acted for both the husband and wife, prepared a joint petition for divorce which was subsequently signed by both the husband and wife for which he had received legal fees. However, the advocate and solicitor did not file the joint petition for divorce. In that case the court held that the advocate and solicitor was a potential witness to explain the non-filing of the joint petition for divorce signed by the parties containing the agreed terms for the divorce. In the instant case there is no relationship of solicitor and client, no signed joint petition for divorce and no agreement on the terms for the divorce. [29] The other submission on this point is based on the cases which the petitioner claims held that when an advocate and solicitor has involved himself in negotiations, notwithstanding the negotiations failed, such advocate and solicitor would be a 27 potential witness. I found the cases relied by the petitioner distinguishable as discussed below. [30] In Syarikat Pengangkutan Sakti Sdn Bhd v. Tan Joo Khing t/a Bengkel Sen Tak [1997] 5 MLJ 705 the advocate and solicitor upon his appointment by the plaintiff proceeded to the defendant’s workshop and tried to persuade the latter to release the motor van belonging to the plaintiff with certain undertakings and whatever had transpired became material and disputed questions of fact for the trial. It was for this reason the advocate and solicitor became a potential witness for what he had said. [31] In Perak Hanjoong Simen Sdn Bhd v Perindustrian Tenaga Mix Sdn Bhd [2008] 8 MLJ 567 the advocate and solicitor acting for the plaintiff prepared a settlement agreement with the defendant. There was a material dispute as to the outstanding sum payable under the said settlement agreement. The court held that in the circumstances the advocate and solicitor was a potential witness in the suit brought by the plaintiff against the defendant and was disqualified from acting for the defendant in the said suit. 28 [32] In Quah Poh Keat & Ors v. Ranjit Singh a/l Taram Singh [2009] 4 MLJ 293 the legal firm of Messrs Lee Hishamuddin Allen & Gledhill (“the legal firm”) was disqualified from representing the appellants who were partners in a firm known as KPMG. The respondent had brought an action against the partners for unlawfully and illegally excluding him from the partnership on allegations of sexual misconduct and rape. The respondent contended that two solicitors of the legal firm had been actively involved in determining the respondent’s fate, the first being Mr Lim Heng Seng who was supposed to have sat through and chaired the appellants' Executive Committee meeting where the allegations of misconduct were aired against the respondent and the second being Datuk Naban, who told the respondent to pack his bags and leave the partnership. It was contended that the two solicitors were material witnesses in the suit brought by the respondent. The Court of Appeal upheld the High Court which had accepted the respondent’s contention. [33] In the cases relied by the petitioner it is clear that the advocates and solicitors were witnesses to resolve dispute of facts that had arisen by their actions or statements. In my view the issue whether there was an agreement reached between the 29 parties or not is not a fact in issue in the instant divorce petition. Even if the issue is relevant, for whatever reason, the proper witnesses would be the petitioner and respondent and not the respondent’s solicitor. Conclusion [34] For the above reasons enclosure 15 was dismissed with costs. ..………………sgd………………….. Amarjeet Singh Serjit Singh Judicial Commissioner High Court of Malaya at Penang Dated: 14th March 2022 Counsel for the Petitioner : Foo Chee Wai, Lee Hoay Yin [LOW & PARTNERS] Counsel for the Respondent : Razeena Binti Rahumathullah [LIM, HO, CHEONG & LOK] 30 Cases referred to :

Mirza Mohamed Tariq Beg Mirza HH Beg v. Margaret Low

Prince Jefri Bolkiah v KPMG (a firm) [1990] 2 AC 222

Gurbachan Singh Bhagwan Singh & Ors v. Vellasamy

Ester a/p Doraisamy v Vijayan a/l Gopal [2021] MLJU 1099

Syarikat Pengangkutan Sakti Sdn Bhd v. Tan Joo Khing t/a

Perak Hanjoong Simen Sdn Bhd v Perindustrian Tenaga

Quah Poh Keat & Ors v. Ranjit Singh a/l Taram Singh [2009]