1. TUNKU HAFSAH BINTI TUNKU KASIM (NO. K/P. : 400327-02-5000) 2. TUNKU OSMAN BIN TUNKU AHMAD (NO. K/P. : 661109-02-5243) 3. TUNKU BADARIAH BINTI TUNKU AHMAD (NO. K/P. : 680611-02-6034) 4. TUNKU SALHA BINTI TUNKU AHMAD (NO. K/P. : 700814-02-

DALAM MAHKAMAH TINGGI MALAYA Di PULAU PINANG GUAMAN SIVIL NO.: PA-22NCVC-146-06/2019 ANTARA 1. TUNKU HAFSAH BINTI TUNKU KASIM (NO. K/P. : 400327-02-5000) 2. TUNKU OSMAN BIN TUNKU AHMAD (NO. K/P. : 661109-02-5243) 3. TUNKU BADARIAH BINT] TUNKU AHMAD (NO. K/P. : 68061 1-02-6034) 4. TUNKU SALHA BINTI TUNKU AHMAD (NO. K/P. : 700814-02-5790) 5. TUNKU ASMA BINT] TUNKU AHMAD (NO. KIP. : 720314-02-5194) 6. TUNKU LATIFAH BINTI TUNKU AHMAD (NO. K/P. : 760625-02-6094) 7. TUNKU HAMIDAH BINTI TUNKU AHMAD (NO. K/P. : 770908-02-6106) 8. HAMID BIN JUSOH (NO.K/P.:350614-02-5289(3374902)) _PLAINTIF-PLAINTIF DAN 1. MAHANI BT SALLEH (NO. K/P. : 5827919) 2. OSMAN @ MD. DAUD BIN AROFF (NO. K/P. : 401123-02-5257) [1] [2] [3] [4] 3. ADZMIN BIN OSMAN (NO. K/P. : 730303-02-5163) 4. GOH CHAI SIONG (NO. K/P. : 680831-04-5229) 5. CHEAH SEOW LING (NO. K/P. : 740912-07-5018) 6. CHEAH YONG YAW (NO. K/P. : 760330-07-5227) _.DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT This is the 4" Defendant’s application to disqualify Messrs. Tan Bak Lee & Co. (Plaintiff's Solicitors) from acting from the Plaintiff in this suit on the grounds that they are in breach of Rules 3, 4, 5 28(a) and/or 29 of the 1978 Legal Profession (Practice and Etiquette Rules) (“Rules”). | heard and dismissed the application. These are the grounds for my decision Background The 1° to 7" Plaintiffs are the beneficiaries of the late Tunku Ahmad bin Tunku Abdul Razak (“Tunku Ahmad”) and are suing in their capacity as beneficiaries of Tunku Ahmad’s estate in the absence of an administrator/executor. Tunku Ahmad and the 8" Plaintiff (Hamid Bin Jusoh) jointly acquired a piece of land (“Property”) in 1992. They subsequently [5] [6] [7] [8] sold the land to the 1° Defendant in 1997. It has changed hands several times over since then. It was transferred to the 2" Defendant in 2010, to the 3% Defendant in 2012, to the 4” Defendant in 2015 and lastly to the 5"-6" Defendants in 2018. The Plaintiff's claim in this suit is for a declaration that the transfer from Tunku Ahmad and the 8" Plaintiff to the 1®' Defendant and all subsequent transfers thereafter are void and that ownership of the Property be vested back with the Plaintiffs. The Plaintiff's Solicitors are also acting for one Khor Chai Koan (‘Khor’) who is the a Defendant in another suit, Suit PA-22NCVC- 79-03/2019 (“Other Suit”). In that suit, Khor, by way of counter- claim, claims to be the owner of the same Property. 4" Defendant’s Allegation The 4" Defendant alleges that the Plaintiff's Solicitors are conflicted in acting for the Plaintiff in this suit because they are take an irreconcilable stand in the Other Suit — that Khor is the owner of the same Property. Plaintiff's Response The Plaintiff's solicitors, in response, have explained that there is no conflict and that the Plaintiff's and Khor’s stand are reconcilable. This is their explanation in the affidavit affirmed by Tan Bak Lee on 22.11.2019: 7. Khor Chai Koan di dalam Tuntutan Balas dalam Guaman Sivil 79 hanyalah bersangkutan dengan Plaintif-Plaintif di sini sehingga tahap bahawa Plaintif-Plaintif akan meneruskan dengan penjualan dan Khor Chan Koan_ bersetuju untuk membeli Lot 1180 daripada Plaintif-Plaintif hanya sekiranya dan apabila tuntutan Plaintif-Plaintif terhadap Defendan- Defendan di sini berjaya. Sila lihat perenggan 39(b) di dalam Tuntutan Balas yang menyatakan bahawa_ "D-7 (Plaintif dalam Tuntutan Balas) telah membuat fawaran sebanyak RM200,000.00 untuk mendapatkannya daripada salah satu kumpulan yang mana satu kumpulan yang berjaya menjadi pemilik sebenar hartanah_ tersebut". Sesungguhnya pihak-pihak di dalam tindakan di sini adalah berlainan daripada pihak-pihak di dalam Guaman Sivil No. PA- 22NCVC-79-03/2019. No Conflict [9] In summary, Khor’s claim to ownership to the Property is conditional upon the Plaintiff succeeding in this suit. In the premise, there is no conflicting stand taken by the Plaintiff's Solicitors over the ownership of the Property in this suit and the Other Suit. The other point to draw from this is that the Plaintiffs and Khor are not opposing each other in this or any suit or at all. Authorities [10] | shall now touch on the 2 authorities referred to by the qi" Defendant — Kayla Beverly Hills (M) Sdn Bhd & Anor v. Quantum Far East Ltd & Ors; (Uma Devi d/o R Balakrisknan, third party) [2003] 6 MLJ 703 (“Kayla”) and Aw Sing Moey & Ors v Melombong & Perumahan Sdn Bhd [1998] 7 MLJ 239 (“Aw Sing Moey’). [11] In Kayla, the court found that plaintiff and third party were opposing parties in a suit. The solicitor there acted for the third party, but they also acted for the Plaintiff in another suit. The ratio decidendi is that the solicitor should not represent one party in a suit where he also acts for the opposing party in another suit. [12] In Aw Sing Moey, the ratio decidendi was that a solicitor is should not represent one party in a suit where he had previously acted for the opposing party. No Applicable to Plaintiff's Solicitors [13] Neither of these cases apply to the present circumstance where the Plaintiffs Solicitors do not act for any of the defendants or previously acted for the for any of the defendants. No Breach of Rules [14] In the premise, there is no issue of the Plaintiff's Solicitors running foul of Rules 3, 4, 5 28(a) and/or 29 of the Rules: 3 Advocate and solicitor not to accept brief if embarrassed (a) An advocate and solicitor shall not accept a brief if he is or would be embarrased. (b) An embarrassment arises- (i) where the advocate and solicitor finds 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. 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. 5 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 just ice. (b) (i) An advocate and solicitor who has at any time advised or drawn pleadings or acted for a party in connection with the institution or prosecution or defence of any suit, appeal of 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. 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. 29 Advocate and solicitor not to testify on behalf of client Except when essential to the ends of justice or as to merely formal matters, an advocate and solicitor appearing in any cause shall not testify in Court on behalf of his client only in that cause. [15] It is unclear why the 4" Defendant has made reference to Rules 28(a) and 29 of the Rules as he had not given any evidence as to whom of the Plaintiff's Solicitors they will be calling as a witness, what evidence they intend to lead through the witness and how that evidence is be relevant. Decision [16] | accordingly dismissed the 4" Defendant's Application for the above reasons. Dated 17" August 2020 WON K CHONG Judicial Commissioner High Court of Malaya, Penang PIHAK-PIHAK Peguamcara Plaintif Amirah Abdullah Tetuan Tan Bak Lee & Co No. 34, Tingkat Atas, Jalan Selat, Taman Selat, 42000 Butterworth, Pulau Pinang Peguamcara Defendan Keempat Tay Hong Jin Tetuan Tay Hong Jin Law Practice 46-5-20, Greenlane Heights, Jalan Besi, 11600 Pulau Pinang