PRIMA SIERRA HOLIDAYS SDN BHD 1. ) KELAB BOLASEPAK JOHOR DARUL TA'ZIM 2. ) MAJLIS SUKAN NEGERI JOHOR (MSNJ) 3. ) MAJLIS PERBANDARAN KULAI (MPK) 4. ) Majlis Bandaraya Johor Bahru

JA-22NCvC-42-03/2021 Kand. 113 05/03/2024 09:27:09 DALAM MAHKAMAH TINGGI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA GUAMAN SIVIL NO.: JA-22NCvC-42-03/2021 ANTARA PRIMA SIERRA HOLIDAYS SDN BHD …PLAINTIF DAN 1. KELAB BOLASEPAK JOHOR DARUL TA’ZIM (Bergabung dengan Persatuan Bolasepak Negeri Johor) 2. MAJLIS SUKAN NEGERI JOHOR 3. MAJLIS PERBANDARAN KULAI 4. MAJLIS BANDARAYA JOHOR BAHRU …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT [Enclosure 96] Background [1] This is an application by the Defendants to seek an order recusing or disqualifying the Plaintiff’s solicitors from representing the Plaintiff under rules 5 and 28 of the Legal Profession (Practice and Etiquette) Rules 1978 (“LPR”) and O. 92 r. 4 of the Rules of Court 2012 (“ROC”). [2] As a brief background, the Plaintiff is a company running a business relating to local tourism and rent out tourist busses. 1 S/N 8XhrBTcUC06TaQd2gpW5w **Note : Serial number will be used to verify the originality of this document via eFILING portal [3] Via a letter dated 18.4.2016, the 1st Defendant agreed to surrender its 4 busses to the Plaintiff for the use of the Johor Darul Takzim Football Team and all expenses relating to rentals, maintenance, fuel, tolls and others would be borne by the Defendants. The payment for the expenses would commence from January 2016 until 14.8.2018. [4] Due to the failure of the Defendants to pay the expenses albeit the services had been rendered by the Plaintiff and numerous notices and reminders issued to the Defendants on the outstanding payment, on 25.3.2021 the Plaintiff filed an action against the Defendants. In response, the Defendants filed their Statements of Defence accordingly. [5] On 1.11.2021, on the application of the 2nd Defendant, this Court struck out the Plaintiff’s action against the former with a cost of RM3,000.00. [6] After various interlocutory applications filed and disposed of, on 28.7.2022, the Plaintiff filed the bundle of pleadings, issues to be tried, list of witnesses from all parties, agreed facts and bundle of agreed documents. [7] On 4.5.2023, a consent order was recorded where the 3rd Defendant was ordered to pay the Plaintiff a sum of RM300,000.00 with costs to be borne by the respective parties. The Court also fixed 23 until 27.6.2024 as the full trial dates. [8] As a mandatory pre-trial requirement, on 21.7.2023, the Plaintiff filed a witness statement of Muhammad Fahkrurrazi bin Mohamad Farhan Chua (“Fahkrurrazi”) in which he mentions a few facts, inter alia, that 2 S/N 8XhrBTcUC06TaQd2gpW5w **Note : Serial number will be used to verify the originality of this document via eFILING portal there was a meeting held on 20.12.2018 (“Meeting”) between Fahmy bin Yahya (the Honorary Secretary of the 1st Defendant) who was accompanied by his officers and Hamizi Yusof as well as Raziyan Rahim (“Plaintiff’s solicitors”) discussing an ex-parte injunction order entered against the Plaintiff and prevented the 1st Defendant from settling the outstanding payment. [9] Subsequent to the filing of the witness statement, on 3.9.2023, the 1st Defendant filed an application to recuse or disqualify the Plaintiff’s solicitors on the grounds that they are potential witnesses for material issues in this action and thus this is in breach of law for such solicitors who are witnesses to represent the Plaintiff in the said action. Right of counsel to appear before a court [10] It is trite that the right of a particular individual to be represented by an advocate and solicitor of his own choice is not absolute. It is the court that will determine that right (see R v. Secretary of State for India in Council & Ors, ex p Ezekiel [1941] KB D 546, Syarikat Pengangkutan Sakti Sdn Bhd v. Tan Joo Khing t/a Bengkel Sen Tak [1997] 3 CLJ 754; [1997] 5 MLJ 705, Perbadanan Pembangunan Pulau Pinang v. Tropiland Sdn Bhd [2010] 2 CLJ 1061; [2009] 1 LNS 91; [2009] 3 MLRH 292 and Kasturi Nambiar Krishnan v. Steven Sebastian; Sivasankar Mohanadass [2023] 7 CLJ 448; [2023] 5 MLRH 612). [11] Notwithstanding that the right of counsel to appear in court is not absolute, any order to recuse or disqualify the counsel from acting on behalf of the client is a drastic order and must be adjudicated sparingly. This view is fortified by the decision of Gunalan Muniandy J (now JCA) in Perbadanan Pengurusan 3 Two Square v. 3 Two Square Sdn Bhd [2017] 3 S/N 8XhrBTcUC06TaQd2gpW5w **Note : Serial number will be used to verify the originality of this document via eFILING portal CLJU 844; [2017] 1 LNS 844; [2018] 10 MLJ 648, where the Lordship held that – [7] The power to disqualify or recuse counsel who is appointed by a litigant from appearing in the trial of a contested suit is a wide discretionary power vested in the trial Court. Considering the serious and far-reaching implications of its exercise, the power must be exercised judicially and fairly with care and caution on correct principles. The impact of an order of recusal of counsel on the fundamental right of a litigant to counsel of his choice should also be seriously considered. Basically, the Defendant's application (L. 123) is grounded on the provisions of Rules 28 and 29 of the Rules which restrict counsel from appearing in a case where he is potentially a witness on disputed and material facts such that he should cease to appear any further if it does not jeopardise his client's interests. [8] It is settled law that while principles of general application on the issue of recusal should be stringently adhered to, the facts and circumstances of a particular case are of paramount importance in determining whether it is justified to make the order upon careful consideration of the reasons advanced for the recusal. [12] Consonant to that fundamental, it is my view that the applicant in any application to recuse a solicitor must establish to the satisfaction of the court that there is a cogent ground to make out such solicitor deserving to be disqualified or recused. In Quah Poh Keat & Ors v. Ranjit Singh a/I Taram Singh [2009] 4 CLJ 316; [2009] 4 MLJ 293 the Court of Appeal held that - "It was our view that to disqualify the firm from representing the appellants, a strong case has to be established first by the respondent, with the evidence to be gauged from the supporting affidavits. What is strong will depend on the evidence and requirement of the law. In Johnson and another, Assignees of 4 S/N 8XhrBTcUC06TaQd2gpW5w **Note : Serial number will be used to verify the originality of this document via eFILING portal Colchester v. Marriot [Court of Exchequer of Pleas] 1833 p 40 the defendant had wanted to employ one Mr Jay as his attorney though he was previously the plaintiffs' solicitor. The plaintiffs wishing to prevent him from defending the defendant, for fear of him revealing confidential communication that had passed between them in the course of the previous relationship, had filed an application to restrain him from acting as the defendant's attorney. With no affidavits forthcoming from the plaintiffs (assignees), which could divulge any confidential communication having passed between them, the court refused to grant the order of restrain, on account of the evidence not being sufficiently strong. Bayley B remarked: [13] The similar approach was underlined by the Court of Appeal in Mirza Mohamed Tariq Beg bin Mirza HH Beg v. Margaret Low Saw Lui & Ors [2009] 4 CLJ 303; [2009] 4 MLJ 671, where Raus Sharif JCA (as the Lordship then was) held that – [24] In conclusion, I am of the view that a strong case must be made out before preventing counsel from acting in a particular case on the ground of conflict of interest. The onus of proof lies on the party alleging the conflict. In this case, I find that the onus has not been discharged by the 2nd and 3rd defendant. There is insufficient evidence to justify denying MRZ the right to represent the plaintiff at this stage of the proceeding. [14] Back to this present action, the Defendant grounded its application on the premise that the Plaintiff’s solicitors were allegedly involved in the Meeting and as such they are potential witnesses as the Defendants deny the existence of such meeting. [15] It is trite that a solicitor is prohibited from accepting any case if it is difficult for him to maintain his professional independence. Rule 5 of the LPR says – 5 S/N 8XhrBTcUC06TaQd2gpW5w **Note : Serial number will be used to verify the originality of this document via eFILING portal No advocate and solicitor to accept brief if difficult to maintain professional independence (a) 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. (b) (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 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. [16] Likewise, the solicitor is also prevented from appearing in any court if he is a witness. Rule 28 of the LPR reads – 28. Advocate and solicitor not to appear in a case where he is a witness. (a) 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. (b) 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. (c) 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. 6 S/N 8XhrBTcUC06TaQd2gpW5w **Note : Serial number will be used to verify the originality of this document via eFILING portal [17] In the 1st Defendant’s affidavit in support of the application for recusal, the 1st Defendant denied making the busses arrangement with the Plaintiff. Instead, the 1st Defendant averred that it liaised with a person by the name of Chua Poh Kok (“Chua”) and all payments relating to the rental of the busses had been fully paid by the 1st Defendant to the said individual. The 1st Defendant further argued that the Plaintiff should have claimed the outstanding payments from Chua and not the 1st Defendant. [18] Upon perusal of the cause papers filed in this action, I discover that there was a dispute between Chua and the Plaintiff which resulted the former suing the latter in suit No. JA-24NCvC-152-07/2018. On 15.8.2018, Chua obtained an ex-parte injunction order against the Plaintiff. On 29.4.2020, the Johor Bahru High Court dismissed Chua’s claim against the Plaintiff with costs. [19] The Plaintiff in the affidavit in reply stated that the Meeting was held to explain the position of the ex-parte injunction order to the 1st Defendant since the latter argued that it could not pay the former due to the existence of the order. The Plaintiff further asserted that the Plaintiff’s solicitors were included in the Meeting as the issue involved was on legal matter i.e the ex-parte injunction order. [20] Based on the above facts, I agree with learned counsel for the Plaintiff that the issue relating to the ex-parte injunction order dated 15.8.2018 is no longer material, relevant, valid or effective as the suit between Chua and the Plaintiff had been duly disposed of. Thus, whether the Meeting was in existence or otherwise, should not even become a triable issue. The most important issue is whether the 1st Defendant owed the Plaintiff of the impugned outstanding payment. Even if the 1st 7 S/N 8XhrBTcUC06TaQd2gpW5w **Note : Serial number will be used to verify the originality of this document via eFILING portal Defendant intends to challenge the existence of the Meeting, it may cross examine Fahkrurrazi and call Fahmy as well as Mohd Shukri Mosman (who was alleged by the Plaintiff attending the Meeting together with Fahmy) to testify in court. These 3 witnesses are sufficient to give evidence relating to the Meeting without bringing the Plaintiff’s solicitors to the witness box. [21] Further, I find that the Plaintiff solicitors’ names are not in the Plaintiff’s list of witnesses neither in the 1st Defendant’s subpoena witnesses. Conclusion [22] In the upshot, I find that the 1st Defendant failed to prove convincingly the existence of a strong case which this court could invoke its power to recuse or disqualify the Plaintiff’s solicitors from acting on behalf of the Plaintiff. What the 1st Defendant showed is only a suspicion without any strong, firm and reasonable basis. Thus, I dismiss the 1st Defendant’s application in Enclosure 96 with costs. Dated: 5.3.2024 - SIGNED - (SHAMSULBAHRI BIN HAJI IBRAHIM) Judge, High Court of Malaya, Johor Bahru 8 S/N 8XhrBTcUC06TaQd2gpW5w **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsels: For the Plaintiff – Hamizi Yusof (Raziyan Rahim with him): Messrs Raziyan Rahim & Associates st For the 1 Defendant – N.G Vinod (Intan Maisarah binti Mohamad Khir with him); Messrs Law Chambers of Van Sa & Ian Cases referred to:  Kasturi Nambiar Krishnan v. Steven Sebastian; Sivasankar Mohanadass [2023] 7 CLJ 448; [2023] 5 MLRH 612  Mirza Mohamed Tariq Beg bin Mirza HH Beg v. Margaret Low Saw Lui & Ors [2009] 4 CLJ 303; [2009] 4 MLJ 671  Perbadanan Pembangunan Pulau Pinang v. Tropiland Sdn Bhd [2010] 2 CLJ 1061; [2009] 1 LNS 91; [2009] 3 MLRH 292  Perbadanan Pengurusan 3 Two Square v. 3 Two Square Sdn Bhd [2017] CLJU 844; [2017] 1 LNS 844; [2018] 10 MLJ 648  Quah Poh Keat & Ors v. Ranjit Singh a/I Taram Singh [2009] 4 CLJ 316; [2009] 4 MLJ 293  R v. Secretary of State for India in Council & Ors, ex p Ezekiel [1941] KB D 546  Syarikat Pengangkutan Sakti Sdn Bhd v. Tan Joo Khing t/a Bengkel Sen Tak [1997] 3 CLJ 754; [1997] 5 MLJ 705, Legislations referred to:  Legal Profession (Practice and Etiquette) Rules 1978 – r. 5 & 28 9 S/N 8XhrBTcUC06TaQd2gpW5w **Note : Serial number will be used to verify the originality of this document via eFILING portal