WA-21NCVC-193-10/2021

Thomas Thomas @ Mohan a/l K. Thomas 2. Kerajaan Malaysia … Defendan-Defendan] 2 GROUNDS OF JUDGEMENT [INTERLOCUTORY - ENCLOSURE (38)] A. INTRODUCTION [1] The Plaintiff, the former Prime Minister and Finance Minister had filed a suit against the First Defendant and the Government of Malaysia being the Second Defendant for a purported tort of misfeasance in public office, amongst others. [2] Vide Enclosure (36), the First Defendant had given notice of their new sets of Solicitors from “Tetuan Tommy Thomas and Co.” instead of being defended by Senior Federal Counsel/Attorney General Chambers (“AGC”). Vide Enclosure (38), the Plaintiff had objected to this notice of appointment of new Solicitors (notice of appointment). [3] After hearing submissions from both parties, this Court had dismissed Enclosure (38) and allowed Enclosure (36) with costs of RM3,000.00. [4] Dissatisfied, the Plaintiff had filed a Notice of Appeal to the Court of Appeal. [5] Herewith are the grounds for that decision. 3 B. BRIEF FACTS [6] The Plaintiff, Dato’ Seri Mohammad Najib bin Tun Haji Abdul Razak was a former Prime Minister and Finance Minister of Malaysia. [7] The First Defendant, Thomas Thomas @ Mohan A/L K. Thomas also known as Tan Sri Tommy Thomas (“TT”) was the Attorney General (“AG”) from 4.6.2018 to 28.2.2020. The Second Defendant, the Government of Malaysia was earlier named as the Second Defendant but was later withdrawn by the Plaintiff, leaving Tan Sri Tommy Thomas as the sole Defendant. [8] During his tenure as the Attorney General (“AG”), the Defendant, in his capacity as Public Prosecutor through the power conferred upon him under Section 376 (1) of the Criminal Procedure Code, had preferred several criminal charges against the Plaintiff. Dissatisfied, the Plaintiff had filed this suit/action against the Defendant for the torts of misfeasance in public office, malicious abuse of process (malicious process) and negligence. [9] The purported wrongs on the part of the Defendant as pleaded in the Statement of Claims are for the 35 criminal charges brought against the Plaintiff, in the following 4 cases:

The 1 Malaysia Development Berhad (“1MDB”) case.

The International Petroleum Investment Company (“IPIC”) case. 4

The alleged abuse of power under the Malaysian Anti-Corruption Commission Act 2009 (“MACC Act 2009”) case.

The alleged money laundering under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (“AMLATFPUAA 2001”) case. [10] In essence, the purported wrong doings pleaded to, according to the Plaintiff, were part of a long planned, premeditated exercise by the Defendant, with the support from the Pakatan Harapan Government under Dr. Mahathir Mohamed. [11] Vide Enclosure (36), the Defendant had filed a notice of a Change of Solicitors. According to that Notice, “Tetuan Tommy Thomas” was appointed as Solicitors representing the Defendant, replacing the Senior Federal Counsel/Attorney General Chambers. [12] The Plaintiff had filed an application to object Enclosure (36), vide Enclosure (38). The objections read as follows in verbatim: “(a) Tetuan Tommy Thomas dibatalkan dari mewakili dan bertindak sebagai peguamcara defendan pertama dalam tindakan ini termasuk segala prosiding yang selanjutnya.

Semua rakan-rakan kongsi dan peguam-peguam Tetuan Tommy Thomas dibatalkan untuk menghadiri atau bertindak bagi defendan pertama dalam tindakan ini termasuk segala prosiding.” 5 [13] Briefly, the objection (vide Enclosure 38) was to disqualify “Tetuan Tommy Thomas”, its partners and solicitors from the firm from representing the Defendant in this suit and in subsequent proceedings. The reasons for this application can be gleaned in the ensuing paragraphs. [14] At the outset of the hearing of the application (Enclosure 38), upon inquiry by the Court, the learned SFC informed the Court that the Attorney General had on 29.7.2022 granted consent/fiat only to two Counsels/Partners of “Tetuan Tommy Thomas” to act for the Defendant, under Section 24 (3) of the Government Proceedings Act 1956. It was only then that the Court and Counsels for the Plaintiff had sight of the consents/fiats granted by the Attorney General to the following Solicitors/Partners of the said firm: 1) Mr. Alan Adrian Gomez 2) Mr. Lai Wei Shiung [15] Pursuant thereto, this Court had allowed parties to regularise their cause papers accordingly so that the arguments on the application will focus only on these two solicitors/partners, and not the whole firm of solicitors or any other solicitors/partners from the firm, to act for the Defendant. The Arguments in Brief [16] The Plaintiff’s solicitors had argued rigorously why the two Counsels/Partners should not act for the Defendant. In essence, their arguments centralised on the fact that as (Tan Sri) Tommy 6 Thomas is a party in this suit i.e as the Defendant and the founder of the firm, there will be a conflict of interest resulting in the two Counsels/Partners not being able to maintain professional independence and to act objectively and in the best interest of the administration of justice. The Plaintiff also argued that there exists pecuniary and personal interest between the two Counsels being partners in the firm and the Defendant, being the founder and consultant of the firm, “Tetuan Tommy Thomas”. [17] The Defendant’s solicitors had argued with equal rigour. In essence, they disagreed and submitted that those were bare averments only as there are insufficient affidavit evidence to prove the same. Further as the Defendant is not a partner and has no shares in the firm he does not enjoy any profit and hence he has no pecuniary interest in this matter. C. ANALYSIS AND FINDINGS OF THIS COURT [18] This Court has perused all the cause papers and had considered all the submissions of parties. Herewith are the Court’s findings. First and foremost, it is trite particularly at common law and in practice, that a litigant has the right to choose a solicitor of his own choice. Further, as this case involved a firm of Solicitors, the firm is entitled to act to represent the Defendant being their consultant by virtue of the Bar Council Ruling No. 6.04 which reads: “6.04. Advocate and Solicitor acting for another Advocate and Solicitor in same firm: 7 “A law firm may act for one of its partners, consultants or legal assistants in respect of a personal claim by or against that partner, consultant or legal assistant.” [19] Further, the present Attorney General has given both Counsels/Partners the consent/fiat to represent the Defendant, eventhough the Defendant was sued in his capacity as government officer i.e as Attorney General/Public Prosecutor which ordinarily will be represented by the Senior Federal Council (SFC)/Attorney General’s Chambers (AGC). Hence, the two Counsels have the locus or the legal standing to represent the Defendant. This Court had assumed that the AG before granting the consent/fiat, must have considered all the requirements expected of Counsels representing the Defendant, being the Attorney General/Public Prosecutor at the material time. This will include that they are to act professionally and in the best interest of the administration of justice. [20] As to the argument that there is a personal and pecuniary interest involved between the two Counsels/Partners and the firm and the Defendant, it is to be noted that the firm and the two Counsels/Partners have no nexus with the dispute between the Plaintiff and the Defendant (see Affidavit in Reply – Enclosure 41). Further, it was not even satisfactorily established or proved of the personal and pecuniary interest in the Plaintiff’s supporting affidavit. In the case of Berjaya Land Bhd v. Wong Chee Hie and Ors [2012] 8 MLJ 129, the Court held: “… there must be shown to exist some nexus or conflict of interest that existed between the other Solicitors from the firm and the Defendants.” 8 [21] From the Affidavit in Reply (Enclosure 41), it was also affirmed that neither the two Counsels/Partners nor the other partners or associates of the firm were involved in the prosecution of the Plaintiff. Hence it is very unlikely that they will be witnesses. Further from the Affidavit in Reply, the Defendant has moved his office from the firm’s address to the Attorney General Chambers at the material time. Hence, there was a cessation of connection/nexus to the law firm the moment he held the post of the Attorney General. (See Enclosure 41 page 17) [22] Therefore, this Court ruled that the two Counsels/partners, associates and the firm have no nexus with the dispute between the Plaintiff and the Defendant and that the 2 Counsels/Partners have no personal or pecuniary interests on this matter. [23] It follows that the two Counsels/partners are therefore not in an embarrassed position from acting for the Defendant and are not in breach of the Legal Profession Act, Bar Council Rulings etc. [24] That there is no pecuniary interest or pecuniary advantage gained by the two Counsels/Partners can be further seen when in the event the Defendant were to win the suit, all proceeds from the cost of proceeding will not go to the two Counsels/Partners or to the Defendant, but to the Government of Malaysia. Conversely if the Plaintiff won the suit, the judgement will be entered against the Government of Malaysia (the Second Defendant) and not against the firm, or the two Counsels/Partners. All compensation (if any) to the Plaintiff will be paid by the Second Defendant. 9 [25] Further the Defendant, even though was the founder of the firm, he was no longer a partner of the firm. In fact, he is just a Consultant and does not enjoy any profit as he does not have any shares in the firm. He does not even have a practicing certificate to practice which was cancelled following his appointment as the Attorney General. (See Enclosure 41 – Exhibits LWS 1, LWS 2 and Enclosure 39 page 16). Hence, there is no pecuniary interest between the firm and the First Defendant. [26] This Court observed that the Plaintiff had also sued the Defendant in another suit at the Shah Alam High Court (Case No. BA- 23NCvC-54-11/2021), where “Tetuan Tommy Thomas” and the Defendant was represented by Mr. Lai Wei Shiung since November 2021. There was no similar objection raised by the Plaintiff there and hence Mr. Lai Wei Shiung in his Affidavit in Reply averred that the First Defendant/the firm were surprised with this delayed objection and was clearly an afterthought. On that note, this Court ruled that the Plaintiff is taking an inconsistent position and is now estopped from making this application at this juncture. [27] In the case of Berjaya Land Bhd v. Wong Chee Hie & Ors [2012] 8 MLJ 129, the Court held: “[26] One final word about the defendants’ conduct, namely the defendants’ delay in raising the objection as to LHAG’s position as a firm to act for the plaintiff promptly in the earlier two suits or in the other interlocutory: ... The defendants’ delay in taking the objection to LHAG at the 10 earliest possible opportunity has also therefore to be held against them. The Court in the case of Tan Kim Hor & 9 Ors v. Tan Heng Chew & 8 Ors [2004] 4 MLJ 118 also held that the failure of the respondent to object to the firm acting for the petitioners in other proceedings, had waived their rights and are estopped from objecting. [28] Finally, lest we forget, the conduct of Counsels in Court proceedings may affect the smooth administration of justice. Hence, in Court, they are subject to the Court’s supervisory jurisdiction. (See Kayla Beverly Hills (M) Sdn Bhd & Anor v. Quantum Far East Ltd & Ors: Uma Devi R. Balakrishnan (third party) [2003] 4 CLJ 587, RS Muthiah v. Pembinaan Fiba Sdn Bhd [2004] 2 CLJ 917). On that note, Balia Yusof Wahi J in Perbadanan Pembangunan Pulau Pinang v. Tropiland Sdn Bhd (supra) held: “The Court has the right and duty to supervise the conduct of its solicitors and the Court would be failing in its duty if it fails to do this supervisory power. Similarly, a solicitor owes a duty to the Court to conduct litigation with due propriety and to assist in promoting in his own sphere, the cause of justice. (Yee Chang & Co Ltd v. NV Koninklijke Paketvaart Maarschappij [1958] 1 LNS 97; [1985] MLJ 131.” 11 [29] His lordship also reminded that the Court also has an inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process: justice should not only be done but must be seen to be done (Grimwade v. Meagher & Ors. [1995] Victoria reports Vol. 1, 446). [30] Pursuant thereto, this Court would like to refer to the Court of Appeal case of Ng Yee Hong v. Malaysian Institute of Accountants [2021] 1 CLJ 666, where the Court held: “[32] …. we must state that we are mindful of the cautionary advice of Arden LJ in Geveran Trading Co Ltd v. Skjevesland (supra) that a judge should not too readily accede to an application to remove opposing counsel lest it is used for tactical reasons to cause inconvenience and delay. The right to counsel of choice is not a trifling matter.” [31] Hence, there will be no prejudice to the Plaintiff as the conduct of the two Counsels/Partners will be strictly supervised by the Court. Further, this Court should not readily accede to this application to nullify the appointment of the two Counsels/Partners of the Defendant’s choice. [32] In the circumstances of this case, for the foregoing reasons, and that there are no convincing evidence to show that the two Counsels/Partners will not be able to maintain professional independence and to act objectively and in the best interest of the administration of justice, as alluded to earlier, the Plaintiff’s application to disqualify the two Counsels/Partners from Tetuan 12 Tommy Thomas vide Enclosure (38) to represent the Defendant is without merit and is dismissed with costs of RM3,000.00. Dated: 1st December 2022 (DATO’ AHMAD BIN BACHE) Judge Civil High Court NCvC 3 Kuala Lumpur Parties: Solicitors for the Plaintiff: Dato’ Firoz Husein Ahmad Jamaluddin Mr. Yudistra Danona Dorai Mr. AW Kai Xiang Ms. Audrey Lim Shu Ting Ms. Melody Tham Cheng Yee MESSRS RAJ, ONG & YUDISTRA Suite 50-4-13 & 50-4-12, 4th Floor, Menara UOA Damansara Jalan Dungun, Damansara Heights 50490 KUALA LUMPUR (Ref. No.: 2020.973.ydd) Solicitors for the Defendant: Mr. Alan Adrian Gomez Mr. Merryn Lai Mr. Georgsha Lim (PDK) MESSRS TOMMY THOMAS 101 Chambers, Suite 3.2, Level 3 Block B, The Five @ KPD Jalan Dungun, Damansara Height 50490 KUALA LUMPUR (Ref. No.: TT/ML/2021 3845)