LIM Choon Lai v 1. ) Helioz (M) Sdn Bhd (BA-22NCvC-271-07/2024)

HELIOZ (M) SDN BHD … DEFENDANTS

NG YIM HOCK (NO. K/P: 800301-10-5275) GROUNDS OF JUDGMENT (Enclosure 32) Introduction 1. This is an application by the Defendants to disqualify Messrs. E.J. Ong & Partners (the firm) and other solicitors from the same firm from representing the Plaintiff pursuant to Rules 3,4,5 and/or 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978 (the said Rules). 09/07/2025 15:46:58

After hearing both parties, I dismissed the application with no order as to costs. Defendant now appealed to the Court of Appeal and below are my reasons. Salient facts

Plaintiff is the owner of the subject matter property in Kota Damansara, Petaling Jaya (the said premise).

1st Defendant rented the said premise via a Tenancy Agreement dated 17.8.2022, commencing from 16.8.2022 until 15.9.2025. The 2nd Defendant is the guarantor of the agreement.

The Tenancy Agreement was drafted and prepared by Messrs. E.J. Ong & Partners, allegedly as solicitors for the 1st Defendant, whose bills for their professional services had been paid by the 1st Defendant.

Mr. Ong Eu Jin (Mr. Ong) is the practising lawyer in the firm as the sole partner.

Disputes then arose between Plaintiff and the Defendants with regard to the Tenancy Agreement, and Plaintiff had instructed Mr. Ong/the firm to commence this present suit against the Defendants. Enclosure 32 8. Defendants submitted that Mr. Ong or the firm cannot objectively act for the Plaintiff and the firm ought not continue to act for the Plaintiff in the present suit (both in main and counterclaim) for the following reasons: a) Conflict of interest.

Mr. Ong is the main/sole partner of the firm who witnessed the execution and signing of the said Tenancy Agreement and will be a potential witness.

The firm is the solicitors acted for the 1st Defendant in advising, preparing, drafting and finalizing the Tenancy Agreement which is the subject matter of the dispute. b) Interest of justice.

It was further submitted that, according to Rules 3,4,5 and/or 28(a) of the Rules:

An advocate and solicitor shall not appear in a case if he has reason to believe that he will be a witness (Rule 3(b)(ii)).

No advocate and solicitor shall accept a brief in a case where he knows or has reason to believe that his own professional conduct is likely to be impugned (Rule 4).

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 (Rule 5).

An advocate and solicitor shall not appear in a case where he is a witness (Rule 28).

The Defendant's main allegation in the present suit is that the Tenancy Agreement was tainted with illegality and therefore void. As Mr. Ong was the one who acted for the 1st Defendant in advising, drafting and perusing the Tenancy Agreement on the 1st Defendant's behalf, he would be a potential witness for the Defendants.

Plaintiff's objection to this application is as follows:

Plaintiff's claim against the Defendant was for payment of outstanding rentals not paid by the 1st Defendant and subsequently, vacant possession of the premise, including damages and other costs incurred.

According to the Tenancy Agreement, Mr. Ong and his firm are representing the Plaintiff as the landlord. The Defendants were unrepresented, and pursuant to the First Schedule, under "Special Conditions," it states that the tenant is to bear the stamp duty and legal fees of the tenancy; therefore, the bills were paid by them.

Mr Ong/the firm was not representing the Defendant in the Tenancy Agreement.

The requirement that Defendant had to pay for all costs incurred in the preparation of the agreement was provided in the Tenancy Agreement and the Agreement to Rent (see exhibit LCL-22). Analysis and Findings 12. Defendants' contention that the solicitors now representing the Plaintiff should be disqualified due to a possible conflict of interest and embarrassment is without any basis.

Though Defendants now alleged that the Tenancy Agreement was tainted with illegality, they do not deny the existence of the agreement, which would require the solicitor in charge (Mr. Ong) to testify for or against them.

It was asserted that Mr. Ong or the firm was not representing the Defendants in the execution of the Tenancy Agreement, and Defendants had not shown facts to the contrary, except that payment of the fees was made by them.

I do not see this as an embarrassment, a possible conflict of interest, or a breach of the principle of bias under the rules of natural justice if Mr. Ong or the firm continues to represent the Plaintiff.

Moreover, the Defendants had not demonstrated whether Mr. Ong or his firm had a pecuniary interest in this case that would justify such disqualification.

Lastly, to disqualify a solicitor from representing a party is not a trivial issue. Unless and until strong and cogent reasons are shown, a party's right to be represented by their solicitor of their choice is a constitutional right conferred to a party pursuing or defending themselves in court. Therefore, restrictions or disqualifying a solicitor on insignificant reasons should not be entertained. Conclusion 18. Having heard both parties, I agree with the Plaintiff that there is no possible conflict of interest by Mr. Ong or his firm to continue representing him in this case. Therefore, Defendants' application in enclosure 32 is hereby dismissed with no order as to costs. Dated this: 8th July 2025 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Counsels: For the Plaintiff: Ong Eu Jin Messrs E.J Ong & Partners For the Defendant: Sim Kok Yew together with Mohd Khairi bin Ahmad Tarmizi Messrs K Y Sim & Co.