Paloh Development Sdn. Bhd. v 1. ) Leong Wai Har (WA-24NCC-203-04/2024)

The right to counsel of choice is a right accorded to any litigant before our courts. However, such right must be balanced against the broader interests of justice. The court has an inherent power to bar counsel if a well-informed, fair-minded member of the public would conclude on the facts presented that the proper administration of justice requires the removal of the counsel. The overarching philosophy underlining the removal is that the administration of justice requires an unqualified perception of its fairness in the eyes of the general public.

The above principle has been applied in Ng Yee Hong v Malaysian Institute of Accountants [2021] 1 CLJ 666 CA [“Ng Yee Hong”], Vijayalakshmi Devi Nadchatiram v Saraswathy Devi Nadchatiram [2000] 4 CLJ 870 FC [“Vijayalakshmi Devi Nadchatiram”], Black v Taylor [1993] 3 NZLR 403 New Zealand Court of Appeal [“Black v Taylor”] and Grimwade v Meagher, Hegland, Morgan, Lidgett, Reid & Bellheath Pty Ltd [1995] 1 VR 446 Supreme Court of Victoria [“Grimwade”].

The principle is now invoked by the 1st defendant in an application before me dated 24-09-2024 [Enclosure 18] by the 1st defendant [“D1”] to disqualify Mr Yuean Jin Han and following that Messrs Cheang & Ariff from acting for the plaintiff Paloh Development Sdn Bhd in an Originating Summons [“OS”] [Enclosure 1] and other actions in relation to or arising out from this OS. S/N Vha/cuP902kfktVelMJXw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

D1 had earlier requested Mr Yuean Jin Han and Messrs Cheang & Ariff not to act but the request was rejected.

The disqualification application is premised on the fact that Mr Yuean Jin Han and Messrs Cheang & Ariff had previously acted for D1 and D2 [now deceased] and also the plaintiff Paloh Development Sdn Bhd and a related company Ee Soon Guan Sdn Bhd, at a time when D1 and D2 [now deceased] were directors of both the plaintiff and Ee Soon Guan Sdn Bhd.

The suit in which Mr Yuean Jin Han and Messrs Cheang & Ariff had previously acted is Mahkamah Tinggi Johor Bahru Saman Pemula No. JA-24NCC-17-07-2022 [“JB OS”]. In this JB OS, D1 had sued The Registrar of Companies Commission of Malaysia (“CCM”) for reinstatement back on the register of the CCM.

It is the contention of D1 that Mr Yuean Jin Han and Messrs Cheang & Ariff had taken instructions from D1 and D2 [now Deceased] and are privy to confidential facts in respect of their acts or omissions as directors of the plaintiff.

D1 contends that it is now improper for Mr Yuean Jin Han and Messrs Cheang & Ariff to now choose to act for the plaintiff in this OS to sue D1 and D2 [now deceased] to, inter-alia, jointly and severally indemnify the plaintiff for all penalties, fines and/or warrants levied against the plaintiff by CCM and other authorities for their failure to file the plaintiff’s annual returns, financial statements and/or directors’ report with a backlog from Financial Year End of 1987 to 2023. S/N Vha/cuP902kfktVelMJXw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4

After hearing counsel on 27-02-2025, I directed further written submissions to be filed to address some points raised during the hearing and reserved my decision to 04-04-2025.

On 04-04-2025, I had allowed the application with costs of RM 10,000 to be borne by Messrs Cheang & Ariff subject to allocatur. I also gave directions for the OS to be fixed for hearing. It is now fixed for hearing on 28-07-2025.

The plaintiff has appealed to the Court of Appeal on 29-04-2025. These are my Grounds of Judgment.

In my Grounds, the plaintiff here will sometimes be referred to as Paloh Development Sdn Bhd if I am also in the same paragraph referring to the related company Ee Soon Guan Sdn Bhd.

This is because in another KLHC OS No. WA-24NCC-202-04/2024, a similar disqualification application has been filed to also disqualify Mr. Yuean Jin Han and Messrs Cheang & Ariff from acting for the plaintiff there/Ee Soon Guan Sdn Bhd to sue D1 and D2 [now deceased]. I had also allowed the application and an appeal to the Court of Appeal was also lodged. A separate Grounds of Judgment is prepared for that appeal. Facts of the case Parties S/N Vha/cuP902kfktVelMJXw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

Paloh Development Sdn Bhd and its related company Ee Soon Guan Sdn Bhd are family-owned companies with substantial assets in Johor. The founders are D1 and her late husband D2 [now deceased]. They were also at all material times the directors and shareholders of both companies. [See the supporting affidavit at page 40 Enclosure 19 paragraph 8 and Enclosure 9 D1’s reply affidavit page 163 paragraph 16].

D1 and D2 [now deceased] have 5 children. They are-i. Ee Poh Ping [f] ii. Ee Poh Ling [f] iii. Ee Choh Teck [“ECT”} iv. Ee Poh Swan [“EPS”] v. Ee Chow Huat [deceased]

Sometime in December 2021, D1 and D2 [now deceased] discovered that the plaintiff’s name was struck off/ “dissolved” by CCM due to years of inactivity. [See Enclosure 19 the supporting affidavit at paragraph 10 of page 40].

Mr. Yuean Jin Han and Messrs Cheang & Ariff (then known as Messrs Chooi & Co + Cheang & Ariff) acted for D1 and D2 [now deceased] in the JB OS filed in June 2022 against the CCM to reinstate the name of the plaintiff into the CCM’s register under section 555 of the Companies Act 2016 (“CA 2016”) (Reinstatement Application). S/N Vha/cuP902kfktVelMJXw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 [See Enclosure 28 the plaintiff’s written submission dated 17-12- 2024 paragraph 17. I should mention here that the JB OS is Originating Summons (No. JA-24NCVC-17-07/2022) and not (No. JA-24NCVC-14-07/2022) as stated in the plaintiff’s written submission] [The OS for the Reinstatement Application is in Exhibit LWH-3 at page 91 and the supporting affidavit at page 38 of AIS Enclosure

It is not Enclosure 18 as stated in the plaintiff’s written submission [Enclosure 28] in footnote 8 to paragraph 17] [18] Messrs Cheang & Ariff was appointed on 30-05-2022 by D2 [now deceased] to act for Paloh Development Sdn Bhd and its related company Ee Soon Guan Sdn Bhd. [19] The Terms of Engagement of Messrs Cheang & Ariff which spell out the appointment and representation of Paloh Development Sdn Bhd and its related company Ee Soon Guan Sdn Bhd can be seen in a letter from Messrs Cheang & Ariff addressed to D2 [now deceased] and D2’s son ECT. [See Enclosure 21 Afidavit Balasan at page 15 of Exhibit CA- 1]. [20] Mr. Yuean Jin Han of Messrs Cheang & Ariff was stated in the Terms of Engagement as one of the two supervising partners. JB OS S/N Vha/cuP902kfktVelMJXw [21] In respect of the JB OS Messrs Cheang & Ariff admits the following facts in their reply letter dated 27-06-2024 to Messrs WH Kan [Enclosure 19 D1 supporting affidavit page 26]- i. Messrs Cheang & Ariff was appointed by D2 [now deceased] to act for D1 and D2 [now deceased] to file the Reinstatement Application. ii. As the plaintiff was not an existing entity at that time one of the directors was made the Applicant to the Reinstatement Application. iii. ECT had informed Messrs Cheang & Ariff that due to the ‘unavailability’ of D2 [now deceased] at the material time to affirm the affidavit in support, D1 was made the applicant in the JB OS on a “collective decision”. [22] D1 contends that D2 [now deceased]’s ‘unavailability’ to affirm the affidavit in support was due to his diagnosis of dementia. [23] In the JB OS supporting affidavit at pages 38 to 44 of Enclosure 19, D1 at the advice of Mr. Yuean Jin Han of Messrs Cheang & Ariff set out the Backgrounds Facts on Paloh Development Sdn Bhd and its related company Ee Soon Guan Sdn Bhd, the grounds for the Reinstatement Application, the plaintiff has assets, the failure to lodge statutory documents was inadvertent, a new Company Secretary would be appointed and the plaintiff would pay any fine or compound imposed. S/N Vha/cuP902kfktVelMJXw Events after JB OS and removal of D1 as a director of Paloh Development Sdn Bhd and Ee Soon Guan Sdn Bhd [24] D2 [now deceased] passed away on 25-06-2023. [25] D1 discovered she was removed as a director of Paloh Development Sdn Bhd and its related company Ee Soon Guan Sdn Bhd and also discovered the new directors of the plaintiff are now her sons ECT and EPS. [26] She contends as follows [See Enclosure 30 D1 written submission and I quote, -

In January 2024, the 1st Defendant (“D1”) and her 2 daughters, namely Ee Poh Ping (“EPP”) and Ee Poh Ling (“EPL”), together with the Administrator of the Estate of the late Ee Chow Huat (youngest son of the 1st and 2nd Defendants) who have equity and/or interest in the Estate of the late Ee Soon Guan (2nd Defendant) (“Deceased”) have commenced a Civil Suit in the Muar High Court via Suit No. JB-22NCvC-2-01/2024, against: -

Ee Choh Teck (“ECT”),

Ee Poh Swan (“EPS”),

Tan Hong Shen (the Plaintiff’s current company secretary);

the plaintiff,

Ee Soon Guan Sdn Bhd (ESG); and

another family company named Bandar Enterprise Sdn Bhd.

The said Civil Suit was later transferred to the Kuala Lumpur High Court and was registered as Suit No. WA-22NCvC-283-05/2024 (“Civil Suit”).

In the said Civil Suit, among others, the validity and legitimacy of the appointment of ECT and EPS as the current directors of the Plaintiff and ESG have been challenged.

It was also prayed in the Civil Suit that an order be granted for D1 to be reinstated as the director of the Plaintiff and ESG; See Exhibit “LWH-4” D1’s OS AIR – copies of the relevant cause papers for the

D1 has challenged the said purported appointment of ECT and EPS, together with the removal of the 1st Defendan from the position of director of the Plaintiff and ESG, and any act carried out by ECT in relying on the purported Power of Attorney dated 19.08.2022 executed by D1 and registered at the Johor Bahru High Court vide Registration No. JA-SKW-4470-09/2022 on 12.09.2022 (“PA”).

The validity of the PA is currently challenged in the Civil Suit.

The Plaintiff did not enter Appearance in the Civil Suit but has, in bad faith, chosen to initiate an action against the 1st and 2nd Defendants in this proceeding. [Emphasis added] OS before me [27] On 26-04-2024, D1’s sons, i.e. ECT and EPS, filed an OS in the name of the plaintiff to sue D1 and D2 [now deceased] to, inter-alia, jointly and severally indemnify the plaintiff for all penalties, fines and/or warrants levied against the plaintiff by CCM and other authorities for their failure to file the plaintiff’s annual returns, financial statements S/N Vha/cuP902kfktVelMJXw and/or directors’ report with a backlog from Financial Year End of 1987 to 2023. D1’s contentions [28] D1 contends it is improper for Mr. Yuean Jin Han and Messrs Cheang & Ariff to now act for the plaintiff in this OS against her and her late husband D2 [now deceased]. [29] D1 contends as follows [See Enclosure 30 D1 written submission] and I quote, -

Messrs Cheang & Ariff … when acting for D1 and the Plaintiff (while D1 and the Deceased were still directors):-

had liaised with the Deceased and/or D1’s Children, especially ECT (now acting as the representative of the estate of the Deceased, namely the 2nd Defendant herein, and the Plaintiff’s director), and/or EPS (now acting as the Plaintiff’s director), in relation to matters that involve facts or incidents similar to that in the JB OS and the matters complained herein.

Based on the content of the letter from Messes Cheang & Ariff dated 27.06.2024, CCA / Messrs Cheang & Ariff have clearly taken instructions from ECT who was not a director of the Plaintiff and ESG at the material time. See Exhibit “LWH-2” Enclosure 19 @ page 26 – 27 – Letter from Messrs Cheang & Ariff dated 27.06.2024

After checking with EPL, D1 was informed by EPL that at the material time, ECT had often, in the WhatsApp group chat between EPL, ECT and EPS, informed them about his communications with CCA / Messrs Cheang & Ariff S/N Vha/cuP902kfktVelMJXw and had given status updates from the solicitor in relation to the Plaintiff and ESG. See Exhibit “LWH-5” Enclosure 19 @ pages 293 – 299 – Screenshots of messages from Ee Choh Teck in the WhatsApp group chat between Ee Choh Teck, Ee Poh Swan and Ee Poh Ling from around June 2022 to December 2022

D1 stated that at all material times, it was agreed by ECT, EPS, and EPL, in the presence of the Deceased, EPP and D1 during a discussion on 23.04.2022, that if the Plaintiff and/or ESG is liable to pay any penalty, fine or warrant to CCM, the Inland Revenue Board of Malaysia, or other authorities, and any cost required to regularize the documents and affairs of the family companies, any such payment will be made by the Plaintiff and/or ESG given that they are family companies. Such assurance was given to D1 and the Deceased.

EPL and EPP are witnesses to the family discussions that the Plaintiff and ESG, as well as family members who are also registered shareholders of ESG, and in-turn, ESG is a registered shareholder of the Plaintiff, never intended for the Plaintiff and ESG to make the Deceased and D1 responsible for any penalties, fines or warrants to CCM, the Inland Revenue Board, or other authorities and also any costs required to regularize the documents and affairs of the Plaintiff and ESG.

Hence in paragraph 17 of the affidavit in support of the JB OS prepared by CCA for D1, it was stated that the Plaintiff would pay any fine or compound imposed by CCM. See Exhibit “LWH-3” Enclosure 19 @ page 44 – Affidavit in Support dated 19.7.2022 by D1 for the JB OS.

Despite having previously liaised with, advised and taken instructions from the Deceased and ECT and acted for D1, nevertheless in the S/N Vha/cuP902kfktVelMJXw Originating Summons herein, Messrs Cheang & Ariff is now acting for the Plaintiff (with ECT and EPS as the purported current directors), to make claims against: -

D1, and

the 2nd Defendant (estate of the Deceased represented by ECT) in relation to matters that involve facts or incidents similar to that in the JB OS and the matters complained herein.

As a result of the above, Messrs W H Kan had served a notice on 06.06.2024 to Messrs Cheang & Ariff informing them of the matters above, and inquired as to whether the latter would cease to act for the Plaintiff and ESG in the matter herein. See Exhibit “LWH-6” Enclosure 19 @ pages 301 – 302 – Letter from Messrs W H Kan dated 6.6.2024 to Messrs Cheang & Ariff

Messrs Cheang & Ariff had on 27.06.2024 replied to the letter from Messrs W H Kan dated 06.06.2024, and had insisted on acting for the Plaintiff and ESG. See Exhibit “LWH-2” Enclosure 19 @ page 26 – 27 – Letter from Messrs Cheang & Ariff dated 27.06.2024

Despite the subsequent objections raised by D1 in all her affidavits filed in this proceedings as early as the first affidavit, namely D1’s OS AIR, Messrs Cheang & Ariff has continued acting for the Plaintiff and ESG, hence leading to the filing of this application by D1 via Enclosure 18. [Emphasis added] The contentions Mr. Yuean Jin Han and Messrs Cheang & Ariff S/N Vha/cuP902kfktVelMJXw [30] In response, Mr. Yuean Jin Han and Messrs Cheang & Ariff contend they should not be disqualified from acting for the plaintiff as-i. Their client in the JB OS is the plaintiff and not D1 or D2; and ii. The Reinstatement Application involves undisputed facts based on the company records and statutory records at CCM which are available to public at large. There is no confidential information communicated by D1 to Messrs Cheang & Ariff at the material time. [31] In support of the above propositions, Mr. Yuean Jin Han and Messrs Cheang & Ariff cite Mirza Mohamed Tariq Beg Mirza Hh Beg v Margaret Low Saw Lui & Ors [2009] 4 MLJ 671 CA [“Mirza Mohamed Tariq Beg Mirza Hh Beg”], Dato’ Azizan bin Abdul Rahman & Ors v Pinerains Sdn Bhd, [2022] 1 MLJ 56 CA [“Dato’ Azizan bin Abdul Rahman & Ors”] and Prince Jefri Bolkiah Appellant & KPMG (A Firm) Respondents [1999] 2 AC 222 House of Lords [“Prince Jefri Bolkiah”]. Law on disqualification of lawyers [32] In Malaysia, all advocates and solicitors are governed by the Legal Profession (Practice and Etiquette) Rules 1978. The rules relevant to the disqualification of a lawyer from a brief are rules 3, 4, 5, 27 and 28. They read as follows-Rule 3. Advocate and solicitor not to accept brief if embarrassed.

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

An embarrassment arises-

Where the advocate and solicitor find 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 to accept brief if professional conduct likely to be impugned. 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 5. No advocate and solicitor to accept brief if difficult to maintain professional independence.

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 pleading or acted for a party in connection with the institution or prosecution or defence of any suit, appeal or other S/N Vha/cuP902kfktVelMJXw 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 whom the advocate and solicitor acted is obtained in writing and the advocate and solicitor is not embarrassed by so acting. Rule 27. Advocate and solicitor not to appear where pecuniarily interested.

An advocate and solicitor shall not appear in any matter in which he is directly pecuniarily interested.

This rule does not apply to the case of an advocate and solicitor appearing himself to tax his own costs Rule 28. Advocate and solicitor not to appear in a case where he is a witness.

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 not appear before an appellate tribunal if in the case under appeal he has been a witness on a material and disputed question of fact in the Court below.

These rule does not prevent an advocate and solicitor from swearing or affirming an affidavit as to formal or undisputed facts in matters in which he acts or appears. [33] Thus, a lawyer can be disqualified from acting in a case if he or she is in breach of these rules 3, 4, 5, 27 and 28 of the Legal Profession (Practice and Etiquette) Rules 1978. [See Vijayalakshmi Devi Nadchatiram, Mirza Mohamed Tariq Beg Mirza Hh Beg, David Cheah Seng Chye v So Miau Song & Ors [2018] 5 CLJ 83 High Court and Panetra Parking Services Sdn Bhd & Ors v TTDI Harta Sdn Bhd & Another Application [2021] 6 CLJ 129 HC]. [34] Under common law a lawyer can also be disqualified from acting in a case on these grounds - i. Conflict of interest; ii. Possession of confidential information in a non-client relationship; and iii. Appearance of Impropriety on the part of the lawyer such that justice would not be seen to be done. Conflict of interest S/N Vha/cuP902kfktVelMJXw [35] To disqualify a lawyer on the ground of Conflict of interest the following two criteria must be satisfied:

There must be an established relationship of solicitor and client; and

(ii) There must be confidential information conveyed to the solicitor. [36] Cases on this ground are Mirza Mohamed Tariq Beg Mirza Hh Beg, Dato’ Azizan bin Abdul Rahman & Ors and Prince Jefri Bolkiah. [37] In Dato’ Azizan bin Abdul Rahman & Ors, See Mee Chun JCA said- [35] We prefer the test as laid down in Jefri Bolkiah. It has been adopted by an earlier Court of Appeal in Mirza at p 679 as follows: I accept the above principles of law. Two important propositions emerge. 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. In the absence of such a relationship, the principle does not apply. 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 letter 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: S/N Vha/cuP902kfktVelMJXw ... 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 confident 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 J: ... the onus of proving that confidential information was conveyed lies heavily upon the applicant. [Emphasis added] Possession of Confidential Information in a non-client relationship [38] Even without a formal lawyer-client relationship, a lawyer may be disqualified if he or she has received confidential information from a party expecting it would be kept private. Appearance of Impropriety on the part of the lawyer such that justice would not be seen to be done. [39] Cases on this ground are Ng Yee Hong, Vijayalakshmi Devi Nadchatiram, Black v Taylor and Grimwade. [40] The following principles can be distilled from these cases-S/N Vha/cuP902kfktVelMJXw i. For this ground there need not be an existing relationship of solicitor and client or that confidential information had been conveyed to the solicitor. ii. The court has an inherent power to control the right of audience and bar lawyers who has a conflict of interest, or in which he appears to have a conflict of interest such that justice would not be seen to be done. iii. This power does not depend on the rules of professional conduct made by the legal profession and is not limited to cases where the rules are breached. The issue is not whether or not the rule was breached. The issue is whether the fair minded reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor. iv. The public interest in the administration of justice requires an unqualified perception of its fairness in the eyes of the general public. The goal is not just to protect the interests of the individual litigant but even more importantly to protect public confidence in the administration of justice. v. The right to counsel of choice is not absolute and has to give way in appropriate cases to the overriding principles of fairness and justice. [41] The judgment of the Court of Appeal in Ng Yee Hong is instructive. S/N Vha/cuP902kfktVelMJXw [42] In this case, Mr T Sudhar (‘Sudhar’) and Miss Tania Edward of Messrs Steven Thiru & Sudhar Partnership (‘STSP’) appeared for the MIA at a judicial review proceeding filed by an accountant. Sudhar had also appeared for the Investigation Committee at the earlier disciplinary hearing before the Disciplinary Committee. The accountant filed an application to recuse any lawyer from the firm of STSP from representing the MIA as either solicitor or counsel in the judicial review proceedings. The High Court dismissed the application. The appeal was allowed. [43] This is what Ravinthran Paramaguru JCA said-Recusal Application [17] We shall first refer to the existence of the inherent power of the court to control the right of audience and bar lawyers who appear to be in a conflict of interest position for the greater good of the administration of justice. In Vijayalakshmi Devi Nadchatiram v. Saraswathy Devi Nadchatiram [2000] 4 CLJ 870, the Federal Court recognised this inherent power. The Federal Court cited with approval the New Zealand Court of Appeal decision of Black v. Taylor [1993] 3 NZLR 403 which held that the court has inherent power to prevent a barrister from acting as counsel in a matter in which he had a conflict of interest, or in which he appeared to have a conflict of interest such that justice would not be seen to be done. Richardson J in explaining the inherent jurisdiction of the court to bar counsel who find themselves in a conflict of interest position said as follows: … Disqualification will ordinarily be the appropriate remedy where the integrity of the judicial process would be impaired by counsel’s adversarial representation of one party against the other. The decision to disqualify is not dependent on any finding of culpable conduct S/N Vha/cuP902kfktVelMJXw on the lawyer’s part. Disqualification is not imposed as a punishment for misconduct. Rather it is a protection for the parties and for the wider interests of justice. The legitimacy of judicial decisions depends in large part on the observance of the standards of procedural justice. Where the integrity of the judicial process is perceived to be at risk from the proposed or continuing representation by counsel on behalf of one party, disqualification is the obvious and, in some cases, the only effective remedy … [18] The other authority cited by counsel for the appellant is the case of Grimwade v. Meagher, Hegland, Morgan, Lidgett, Reid & Bellheath Pty Ltd [1995] 1 VR 446 which is a decision of the Supreme Court of Victoria (cited recently by this court in the case of Dato’ Sri Mohd Najib Hj Abdul Razak v. PP [2019] 1 LNS 1837; [2019] 5 MLJ 623). The view expressed in Black v. Taylor (supra) was echoed by the Supreme Court of Victoria in the Grimwade case (supra). The relevant passage reads as follows: It is within the inherent jurisdiction of a superior court to deny the right of audience to counsel when the interests of justice so require by reason of conflict or otherwise. This power does not depend on the rules of professional conduct made by the legal profession and is not limited to cases where the rules are breached. The issue here is not whether or not the rule was breached, …. The issue is whether the fair minded reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor … The public interest in the administration of justice requires an unqualified perception of its fairness in the eyes of the general public … The goal is not just to protect the interests of the individual litigant but even more importantly to protect public confidence in the administration of justice … [19] Therefore, the right to counsel of choice is not absolute and has to give way in appropriate cases to the overriding principles of fairness and justice. … S/N Vha/cuP902kfktVelMJXw [29] The primary issue in the judicial review proceedings is the propriety of the decision of the DC not to dismiss the charge in NYH-2. As the IC is the investigator/prosecutor, we agree with counsel for the appellant that the objectivity of STSP in defending the charge at the judicial review hearing would be open to question as they represented the IC at the DC hearing. In other words, STSP could very well be defending their own earlier advice to the IC at the judicial review proceedings. As lawyers are officers of the court, apart from advancing the cause of their client, they have an overriding duty to the cause of justice. This is the reason that the court can rightfully expect a measure of independence and objectivity from them in the conduct of their duty… … [32] … The right to counsel of choice is not a trifling matter. However, the court should not flinch from striking a fair balance between the competing considerations of the right to counsel of choice and the broader interests of the administration of justice. [Emphasis added] Application to facts [44] In the application before me D1 is relying on rules 3, 4, 5 and 28 of the Legal Profession (Practice and Etiquette) Rules 1978 and the ground of ‘Appearance of Impropriety on the part of the lawyer such that justice would not be seen to be done’. [45] D1 is not relying expressly on the ground of ‘Conflict of interest’ where she has to prove an existing relationship of solicitor and client or that confidential information had been conveyed to the solicitor. S/N Vha/cuP902kfktVelMJXw [46] However, in my view the ground of ‘Conflict of interest’ can be relied on by D1. In addition, even without a formal lawyer-client relationship, a lawyer may be disqualified if he or she has received confidential information from a party expecting it would be kept private, which is the case here. [47] The Federal Court in Ng Siew Lan v John Lee Tsun Vui & Anor [2017] 2 CLJ 245 FC said- [61] The learned authors of Clerk & Lindsell on Torts (18th edn) have this to say on such conflicts of interest at paras. 8-92: Conflicts of interest A lawyer owes a duty to his client not to act for another in a situation where there would be a potential conflict of interest. …where a firm of solicitors has previously acted for one party and now wishes to act for another whose interests are opposed, there will be a breach of duty unless it is absolutely clear that there can be no leakage or misuse, deliberate or otherwise, of confidential information... [48] Further, on the facts here, the fair minded reasonably informed member of the public would conclude that the proper administration of justice required the removal of Mr. Yuean Jin Han and Messrs Cheang & Ariff. [49] The facts show-i. Mr. Yuean Jin Han and Messrs Cheang & Ariff had acted for D1 and her late husband D2 [now deceased] in the JB OS for the Reinstatement Application. It is an artificial and unmeritorious argument that their client was the plaintiff. S/N Vha/cuP902kfktVelMJXw ii. The evidence shows that D2 [now deceased] engaged Messrs Cheang & Ariff. iii. Messrs Cheang & Ariff had admitted Messrs Cheang & Ariff was appointed by D2 [now deceased] to act for D1 and D2 [now deceased] to file the Reinstatement Application. [See their letter dated 27-06-2024 to Messrs WH Kan in Enclosure 19 D1 supporting affidavit page 26]. iv. D2 [now deceased] signed the Terms of Engagement of Messrs Cheang & Ariff which set out the appointment and representation of Paloh Development Sdn Bhd and its related company Ee Soon Guan Sdn Bhd [See Exhibit CA-1 of Enclosure 21 Affidavit page 19]. v. D1 was the plaintiff in the Reinstatement Application. D1 signed the affidavit. Messrs Cheang & Ariff was the solicitors in this Reinstatement Application. Messrs Cheang & Ariff prepared the affidavit for D1 to sign. vi. D1 and D2 [now deceased] would have shared with Mr Yuean Jin Han and Messrs Cheang & Ariff the facts and explanations as to why they as directors failed to lodge statutory documents, why the Company Secretary failed to lodge statutory documents and that a new Company Secretary would be appointed and the agreement that the plaintiff would pay any fine or compound imposed. S/N Vha/cuP902kfktVelMJXw vii. With such confidential information given to Mr Yuean Jin Han and Messrs Cheang & Ariff, how can they now act for the new directors and the plaintiff to sue D1 and D2 [now deceased] to indemnify the plaintiff for all penalties, fines and/or warrants levied against the plaintiff by CCM and other authorities for their failure to file the plaintiff’s annual returns, financial statements and/or directors’ report with a backlog from Financial Year End of 1987 to 2023. viii. Any fair minded and reasonably informed member of the public would conclude that the proper administration of justice requires their removal as lawyers. [50] There is also a likelihood that Mr. Yuean Jin Han and the relevant solicitors of Messrs Cheang & Ariff would be called as witnesses to the discussion between D1, D2 [now deceased], ECT, EPS and EPL on D1’s contention that any penalties, fines and/or costs that may be imposed were agreed by the family members to be borne by the plaintiff. [51] D1’s contention is supported by the averment in paragraph 17 of the supporting affidavit Enclosure 19 page 44 filed in the JB OS that the plaintiff will pay any fine or compound imposed by CCM. [52] In my view this a proper case to disqualify Mr. Yuean Jin Han and Messrs Cheang & Ariff from acting for the plaintiff. S/N Vha/cuP902kfktVelMJXw [53] I would like to end by quoting this extract from the judgment of Cooke P in Black v Taylor where the court disqualified a solicitor from acting further as counsel in the proceeding-On the present evidence I consider that the inherent jurisdiction of the Court provides a more satisfactory basis for determining the question than the indirect and somewhat artificial development of a special rule, which treats knowledge of a client (as distinct from knowledge of his or her affairs) gained through a professional association as confidential information under the umbrella of protection of misuse of confidential information. I am satisfied that reasonable members of the public knowing of Mr Gazley’s association with M A Taylor would consider that justice would not be seen to be done if, when dissension developed within the Taylor family, Mr Gazley acting as counsel took sides and acted against M A Taylor. [emphasis added] Decision [54] For the reasons above, I allow the application to disqualify Mr. Yuean Jin Han and Messrs Cheang & Ariff from acting for the plaintiff with costs of RM 10,000 to be borne by Messrs Cheang & Ariff subject to allocatur. S/N Vha/cuP902kfktVelMJXw [55] I also give directions for the OS to be fixed for hearing. It is now fixed for hearing on 28-07-2025. ………(signed)…………. Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Dated: 16th June 2025. COUNSEL: 1) Dennis Yuean Jin Han [with Celine Lim Tze Hui and Ryan Lim Ban Wei (Pupil in Chamber) for plaintiff. Cheang & Ariff (Kuala Lumpur)) 2) Suhirthamalar a/p Sandeasekaran [with Goh Loh Boon and Wong Yee Fung] for 1st defendant. WH Kan (Kuala Lumpur)) CASES REFERRED TO: 1) Black v Taylor [1993] 3 NZLR 403. 2) Dato’ Azizan bin Abdul Rahman & Ors v Pinerains Sdn Bhd, [2022] 1 MLJ 56 CA. S/N Vha/cuP902kfktVelMJXw 3) Dato’ Sri Mohd Najib Hj Abdul Razak v. PP [2019] 1 LNS 1837; [2019] 5 MLJ 623. 4) David Cheah Seng Chye v So Miau Song & Ors [2018] 5 CLJ 83 HC. 5) Grimwade v Meagher, Hegland, Morgan, Lidgett, Reid & Bellheath Pty Ltd [1995] 1 VR 446. 6) Hardless v Hardless AIR 1932 Allahabad 536. 7) Mirza Mohamed Tariq Beg Mirza Hh Beg v Margaret Low Saw Lui & Ors [2009] 4 MLJ 671 CA. 8) Ng Yee Hong v Malaysian Institute Of Accountants [2021] 1 CLJ 666 CA. 9) Panetra Parking Services Sdn Bhd & Ors v TTDI Harta Sdn Bhd & Another Application [2021] 6 CLJ 129 HC. 10) Prince Jefri Bolkiah Appellant & KPMG (A Firm) Respondents [1999] 2 AC 222. 11) State v Lalit Mohan Nanda AIR 1961 12) Vijayalakshmi Devi Nadchatiram v Saraswathy Devi Nadchatiram [2000] 4 CLJ 870 FC. LEGISLATION REFERRED TO: 1) Legal Profession (Practice and Etiquette) Rules 1978, rules 3, 4, 5, 27 and 28. S/N Vha/cuP902kfktVelMJXw