HIGH COURT (KUALA LUMPUR)
WONG KIAN KHEONG J
SUIT NO D5-22-610 OF 2006 AND D1-22-1960 OF 2008
20 June 2023
JUDGMENT
(3 applications)A. Background
[1] In the above two suits (2 Suits) –
- (1)Civil Suit No. D5-22-610-2006 (1st Suit) has been filed by two plaintiff companies (Plaintiffs) against individual defendants on the ground that they had breached their fiduciary and statutory duties as directors of the Plaintiffs in respect of certain contracts and transactions entered into by the Plaintiffs;
- (2)the Plaintiffs alleged in Civil Suit No. D1-22-1960-2008 (2nd Suit) that the seven defendants in the 2nd Suit had conspired, either by lawful or unlawful means, to injure the Plaintiffs and had thereby caused loss to the Plaintiffs; and
- (3)Tan Sri Dato’ Tajudin bin Ramli (1st Defendant) and Dato’ Bistamam bin Ramli (2nd Defendant) are the first and second defendants in the 2 Suits. The 1st and 2nd Defendants (referred collectively in this judgment as the “Defendants”) have filed 2 counterclaims in the 2 Suits (2 Counterclaims) against the Plaintiffs and Telekom Malaysia Bhd. (TMB).
[2] The following learned lead counsel appear in the 2 Suits and 2 Counterclaims (2 Suits/2 Counterclaims):
- (1)Mr. Rabindra Nathan (Mr. Rabindra) is the learned lead counsel for the Plaintiffs;
- (2)Mr. Lim Kian Leong led the Defendants in the 2 Suits/2 Counterclaims;
- (3)there were certain German individuals and a German company who were defendants in the 2 Suits (collectively referred to in this judgment as the “German Entities”). The learned lead counsel for the German Entities is Mr. Christopher Leong Sau Foo (Mr. Leong). Mr. Leong is assisted by, among others, Mr. Lim Tuck Sun; and
- (4)TMB’s learned lead counsel is Mr. Lambert Rasa-Ratnam (Mr. Rasa-Ratnam).
[3] On 27.9.2021, the German Entities had called Mr. Thomas Ach to testify online in the joint trial of the 2 Suits/2 Counterclaims (Mr. Ach’s Online Testimony).
[4] The 2 Suits were discontinued on 19.11.2021 by the Plaintiffs against the German Entities without any liberty to file afresh and with no order as to costs [Discontinuance Order (German Entities)].
[5] On 21.1.2022, the Plaintiffs’ solicitors informed the court about a doctored video clip regarding Mr. Ach’s Online Testimony (Doctored Video Clip) which had been circulated in the public.
[6] This court has delivered a judgment regarding the Doctored Video Clip – please refer to [2022] 3 MLRH 217, [2022] 4 CLJ 381, [2022] 3 AMR 486 [Judgment (Doctored Video Clip)].B. Three applications by Mr. Lim Tuck Sun
[7] Initially, Mr. Lim Tuck Sun filed a notice of application (1st NA) which applied for the following orders:
- (1)leave of court for Mr. Lim Tuck Sun to intervene in the 2 Suits/2 Counterclaims (Intervention Application); and
- (2)parts of the Judgment (Doctored Video Clip) regarding Mr. Lim as stated in Appendix 1 to the 1st NA [Impugned Parts (Judgment)] should be expunged by the court (Expunction Application).
[8] In the first case management (CM) of the 1st NA (1st CM) –
- (1)Mr. Kenneth Koh Zhong Wey represented Mr. Lim Tuck Sun;
- (2)the Plaintiffs, Defendants and TM were represented by learned counsel but the German Entities were not represented;
- (3)when the court inquired from Mr. Kenneth Koh on why no learned counsel appeared on behalf of the German Entities, Mr. Kenneth Koh informed the court that the cause papers for the 1st NA [Cause Papers (1st NA)] had not been served on the solicitors for the German Entities, Messrs Chooi & Company + Cheng & Ariff (Messrs CCA).The court then directed Mr. Lim Tuck Sun’s solicitors to serve the Cause Papers (1st NA) on Messrs CCA. This is because even if a court matter has been discontinued against a party (X), if a learned counsel or solicitor (Y) (who has represented X in the case) has filed an application in the case after the discontinuance of the matter, Y should serve all cause papers regarding Y’s application on X. This is in the interest of justice because X is entitled to know of all developments in the case, especially the filing and outcome of an application by X’s own solicitor or counsel in the same case;
- (4)I inquired from Mr. Kenneth Koh on whether Mr. Lim Tuck Sun wished to be present for the 1st CM. Mr. Kenneth Koh informed the court that Mr. Lim Tuck Sun was waiting outside the court room. I invited Mr. Lim Tuck Sun to be present for the 1st CM as the 1st NA was filed by him. The court also granted leave for Mr. Lim Tuck Sun to attend all subsequent CMs as well as to be present at the hearing and oral decision of the 2 NAs. Furthermore, notwithstanding the fact that Mr. Lim Tuck Sun had appointed learned counsel to act for him in the 1st NA, I gave leave for Mr. Lim Tuck Sun to address the court if he wished to do so;
- (5)Mr. Kenneth Koh tactfully inquired from me on whether I would be hearing the 1st NA. I informed Mr. Kenneth Koh as follows –
- (a)after my perusal of the Cause Papers (1st NA), my preliminary view was that there was no “real danger of bias” on my part to hear the 1st NA. Hence, I would not recuse myself from hearing the 1st NA during the first CM; and
- (b)Mr. Lim Tuck Sun had the liberty to file an application to recuse me from hearing the 1st NA (Recusal Application). I assured Mr. Lim Tuck Sun and Mr. Kenneth Koh that if a Recusal Application was subsequently filed, the court would not commence any committal proceedings on the court’s own motion against any person in respect of the Recusal Application; and
- (6)Mr. Kenneth Koh stated that he had been instructed by Mr. Lim Tuck Sun to file a Recusal Application and applied for another CM to be fixed after the filing of the Recusal Application. I acceded to Mr. Kenneth Koh’s request and fixed a second CM for the 1st NA (2nd CM).
[9] The Recusal Application was subsequently filed by Mr. Lim Tuck Sun by way of a second NA (2nd NA). This judgment shall refer to –
- (1)the 1st NA and 2nd NA collectively as the “2 NAs”; and
- (2)the Intervention Application, Expunction Application and Recusal Application collectively as the “3 Applications”.
[10] During the 2nd CM –
- (1)Ms. Ira Biswas A/P Sushil Kumar and Ms. Nicole Fiona Wee Sue-Ren appeared for Messrs CCA. Ms. Ira informed the court that –
- (a)Messrs CCA had no instruction from the German Entities to receive the Cause Papers (1st NA);
- (b)Ms. Ira and Ms. Wee attended the 2nd CM as a matter of courtesy and respect for the court; and
- (c)Ms. Ira and Ms. Wee applied for leave to be excused from all further proceedings regarding the 2 NAs.
- (2)learned counsel for the Plaintiffs, Defendants and TM informed the court that –
- (a)the Plaintiffs, Defendants and TM would not take any position with regard to the 2 NAs; and
- (b)learned lead counsel for the Plaintiffs, Defendants and TM kindly offered to act as Amici Curiae (friends of the court) in respect of the 2 NAs.
- (3)this court informed all learned counsel and Mr. Lim Tuck Sun as follows –
- (a)the court proposed to invite Mr. Robert Lazar (Mr. Lazar), a senior member of the Bar and a highly experienced litigator, to be an Amicus Curiae to assist the court regarding the 2 NAs. There was no objection to this proposal by any learned counsel. Mr. Robert Lazar subsequently accepted the court’s invitation to be an Amicus Curiae in respect of the 2 NAs; and
- (b)the court stated that Mr. Lim Tuck Sun, Plaintiffs, Defendants and TMB had the right to propose to the court to invite –
- (i)the Rt. Hon. Attorney General to attend and/or assist the court with regard to the 2 NAs: and/or
- (ii)a representative from the Bar Council (BC) to be an Amicus Curiae or to hold a Watching Brief (WB) for the BC.