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1. Bank Pembangunan Malaysia Bhd v Sidqi Ahmad Said bin Ahmad & Ors [2024] MLJU 3335
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 Bank Pembangunan Malaysia Bhd v Sidqi Ahmad Said bin Ahmad & Ors
[2024] MLJU 3335
Malayan Law Journal Unreported

HIGH COURT (KUALA LUMPUR)

Lim Chee Wee (with Nathalie Ker Si Min) (Lim Chee Wee Partnership) for the plaintiff.
Syamsul Azhar Ab Aziz mention on behalf for James Ding Tse Wan (CH Tay & Partners) for the defendant.

Atan Mustaffa Yussof Ahmad J:

JUDGMENT

[1] Before the court is an application to disqualify a law firm from continuing to act as solicitors for the Plaintiff in
ongoing civil proceedings relating to an alleged fraud involving a substantial loan facility. The application was filed
by one of the defendants more than a year after entering appearance, following developments where two co-
defendants entered into consent judgments with the Plaintiff and agreed to cooperate as witnesses against the
remaining defendants. The key issues raised include allegations that the law firm failed to report admissions of
bribery to the authorities, had financial connections to one of the cooperating defendants through a company
shareholding, and had improperly procured favorable settlements with the cooperating defendants in exchange for
their testimony. The applicant also seeks consequential orders to restrict reference to various court documents and
to have certain investigative findings declared as undisputed facts. This application requires the court to carefully
balance the right of a litigant to counsel of choice against the need to maintain public confidence in the
administration of justice and integrity of the judicial process.
Background facts

[2] A civil suit was filed by the Plaintiff, Bank Pembangunan Malaysia Berhad, against 30 defendants concerning
allegations of fraud relating to a loan of RM400 million given to Aries Telecoms (M) Berhad (“Aries”) that was
meant to partly finance the development of a coastal fibre optic network of 1,562 km around Peninsular Malaysia
(“the Project”).

[3] The suit was filed on 22.6.2022, seeking to recover losses which, as at 14.6.2022, amounted to
RM564,991,617.25. The Plaintiff alleges that the fraud involved the late Dato’ Mohd Zafer Mohd Hashim (“Dato’
Zafer”), who was the former President and Group Managing Director of the Plaintiff.

[4] In January 2022, the Plaintiff discovered through the 13th Defendant, Ranjeet Singh Sidhu (“D13”), that before
4.7.2012, D13, who was acting on behalf of Aries at the material time, had allegedly made payments to Dato’ Zafer
through the 14th Defendant, Noorus A’adah Binti Othman (“D14”) as an intermediary. These payments were
allegedly made from the loan sum for the successful disbursements of the loan to Aries.

[5] The Malaysian Anti-Corruption Commission (“MACC”) issued a “No Further Action” (“NFA”) letter to the 2nd
Defendant, Shailen A/L Popatlal (“D2”) on 20.1.2022. Subsequently, on 26.9.2022, the MACC issued an NFA letter
regarding Dato’ Zafer, who had passed away on 20.7.2022.

[6] On 12.7.2022, D14 filed her first Affidavit in Reply. She later filed a Supplementary Affidavit on 3.10.2022.

[7] On 22.7.2022, the court granted Mareva injunctions against D13 and D14 in Enclosure 113 freezing their
assets up to RM8 million each, and required them to disclose information about their assets within 14 days, with
exceptions allowing them to spend up to RM10,000 per month each for living expenses and legal fees (“Mareva
Order”).
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Bank Pembangunan Malaysia Bhd v Sidqi Ahmad Said bin Ahmad & Ors [2024] MLJU 3335

[8] On 9.2.2023, the Plaintiff and D14 entered into a Consent Order in Enclosure 338 (“Consent Order”) where
D14 agreed to disgorge RM2.5 million to the Plaintiff plus any additional sums later established at trial, the Plaintiff
would discontinue its action against D14 and lift the Mareva injunction.

[9] On 16.8.2022, D13 filed an affidavit (Enclosure 138) making various admissions and disclosures regarding the
alleged fraud scheme. These included details about alleged fraudulent acts carried out by D13, Aries, Zavarco
Berhad (the 26th Defendant) and various other defendants to obtain the loan sum, allegations about bribes paid to
Dato’ Zafer through D14, and claims about the manipulation of supporting documents and assessment reports.

[10] On 8.11.2023, D2 filed an application (Enclosure 515) to disqualify Messrs Lim Chee Wee Partnership
(“LCWP”) from acting as the Plaintiff’s solicitors. On the same day, the 4th, 7th, 8th, 9th, 17th, 22nd, 24th and 25th
Defendants filed a similar application (Enclosure 516).

[11] According to a news article dated 7.12.2023 by Utusan Malaysia, D13 was reported to be the owner and
beneficial controller of Kuber Venture Berhad (“Kuber”). A Companies Commission of Malaysia search revealed
that Dato’ Lim Chee Wee (“Dato’ Lim”), partner of LCWP, held 500,000 shares in Kuber.

[12] On 6.3.2024, the Plaintiff and D13 entered into a Consent Judgment (“Consent Judgment”) where D13
agreed to pay RM500,000 in five monthly installments of RM100,000 each and the Plaintiff would discontinue its
action against D13 and lift the Mareva injunction, while reserving its rights to seek additional sums that D13 may
have personally received.

[13] The Consent Order between the Plaintiff and D14, together with the Consent Judgment between the Plaintiff
and D13, will collectively be referred to as the “Consent Judgments.”
The application in Enclosure 515

[14] In Enclosure 515, D2 applied pursuant to Order 92 rule 4 of the Rules of Court 2012 for orders to disqualify
LCWP from acting as the Plaintiff’s solicitors. The application also sought alternative reliefs including: an order
directing LCWP to reveal on oath the outcome of discussions and negotiations that led to the Consent Order with
D14 (Enclosure 338) and the Mareva Order against D13 (Enclosure 113); an order restraining LCWP or the Plaintiff
from using or referring to various court documents including Enclosures 113, 338, 37, 138 and 181; and a
declaration that the NFA issued to Dato’ Zafer be accepted as an undisputed fact.

[15] The grounds for the application included allegations that LCWP failed to report to MACC the admissions of
bribery made by D13 and D14 in their affidavits; that LCWP had knowledge of the NFA decisions but misled the
court by stating they had no prior contact with MACC; that LCWP’s connection to D13 through Kuber (where Dato’
Lim was a substantial shareholder and D13 was reported to be the owner and beneficial controller) created a
conflict of interest; and that LCWP would need to be called as a material witness regarding the negotiations leading
to the Consent Order with D14 and the Mareva Order against D13. D2 argued these circumstances impaired the
integrity of the judicial process and adversely affected the perception of justice.
Respective parties’ submissions

The Plaintiff’s submissions

[16] The Plaintiff submitted that D2’s application lacked merit and was a delay tactic filed over a year after D2
entered an appearance. The Plaintiff argued that the disqualification application needed “a strong case” to succeed,
which had not been established. The Plaintiff contended that LCWP was not in breach of any provisions under the
Penal Code or Malaysian Anti-Corruption Commission Act 2009 (“MACC Act”), and that criminal matters were for
the criminal courts to determine. Regarding the Consent Order with D14 and dealings with D13, the Plaintiff
maintained these were properly conducted within court processes. The Plaintiff denied any conflict of interest and
argued that D2 had provided no evidence linking D13 to Kuber beyond an unverified news article. The Plaintiff also
contended that LCWP was not a material witness as it had merely acted on instructions as solicitors.
D2’s submissions

[17] D2 submitted that LCWP’s conduct raised serious concerns about the administration of justice and procedural
fairness. D2 argued that LCWP either knew about the NFA decisions but concealed them from the court, or did not
know about them but failed in their duty to report D13’s and D14’s bribery admissions to MACC. D2 contended that
LCWP’s connection to D13 through Kuber created an “appearance of conflict” which was sufficient grounds for
disqualification. D2 further argued that the favourable terms given to D13 and D14 in the Mareva Order and
 Page 3 of 16
Bank Pembangunan Malaysia Bhd v Sidqi Ahmad Said bin Ahmad & Ors [2024] MLJU 3335

Consent Order respectively suggested undisclosed arrangements, making LCWP material witnesses who would
need to testify about these negotiations. D2 maintained that these circumstances went beyond proper adversarial
representation and impaired the integrity of the judicial process.
Analysis and findings of the court

LCWP’s failure to report D13’s admissions of bribery to MACC

[18] D2 contends that LCWP should be disqualified as there is an alleged conflict of interest or appearance of
impropriety arising from LCWP’s failure to report the D13 and D14’s admissions of bribery to the MACC as allegedly
required by law. D2 argues that LCWP had knowledge of the NFA decision issued by MACC to Dato’ Zafer, yet
LCWP utilised such knowledge to procure Consent Judgments with D13 and D14. D2 alleges that LCWP’s conduct
in this regard amounts to a failure to discharge its duties under the law which warrants its disqualification as the
Plaintiff’s solicitors.

[19] The Plaintiff submits that D2’s application is baseless and without merit. The Plaintiff contends that the fact
that no prosecution was initiated or that MACC concluded its investigations with no further action is not a bar to the
Plaintiff’s right to pursue civil remedies. This was decided by this court in the Broad Grounds of Decision dated
19.1.2024 at paragraph 123. The Plaintiff further submits that LCWP is not in breach of any provisions under the
MACC Act or the Penal Code. In any event, the Plaintiff argues that such purported breaches would only be an
issue to be determined before the criminal courts and not in the present civil proceedings.

[20] Having considered the affidavits, written submissions and oral arguments of the parties, as well as the
applicable legal principles, I find that D2 has failed to establish a case warranting the disqualification of LCWP from
acting for the Plaintiff in this suit on this issue.

[21] It is trite that the power to disqualify solicitors is a wide discretionary power of the court to be exercised
judicially and fairly with care and caution on correct principles. The court must take into account the serious and far-
reaching implications of such an order on the fundamental right of a litigant to counsel of his choice. In Perbadanan
Pengurusan 3 Two Square v 3 Two Square Sdn Bhd [2017] 1 LNS 844 (HC) the court held:

“[5] It can be gleaned that the principle of utmost importance on disqualification of a solicitor is that public confidence in the
administration of justice must at all times be maintained and protected. In this regard, it is of equal importance that each
case of disqualification of counsel from appearing for a party must be determined based on the merits of its own peculiar
facts to which the established principles should be applied….

[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.”

[22] Here, the primary basis advanced by D2 to disqualify LCWP is an alleged breach of statutory duties in failing
to report D13’s admissions to the MACC. With respect, I find this contention to be misconceived. The Plaintiff had
stated in its affidavit that its solicitors are not at liberty to disclose whether any report was made to MACC pursuant
to the secrecy obligations under section 29(4) of the MACC Act. It reads:

“(4) A report made under subsection (1) shall be kept secret and shall not be disclosed by any person to any person other
than officers of the Commission and the Public Prosecutor until an accused person has been charged in court for an
offence under this Act or any other written law in consequence of such report, unless the disclosure is made with the
consent of the Public Prosecutor or an officer of the Commission of the rank of Commissioner and above.”
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Bank Pembangunan Malaysia Bhd v Sidqi Ahmad Said bin Ahmad & Ors [2024] MLJU 3335

[23] D2 has not adduced any positive evidence to show that LCWP had failed to make a report to MACC as
required by law. Bare allegations of a breach of statutory duties without any prima facie supporting proof are plainly
insufficient.

[24] In any event, even assuming there was a breach of the Penal Code or MACC Act by LCWP in failing to report,
this would be a matter for criminal enforcement by the relevant authorities. It is not a valid basis for disqualification
of a solicitor in civil proceedings. The authorities are clear that the right to pursue any prosecution for a breach of a
statutory penal provision lies with the Public Prosecutor, not with a private litigant in a civil suit (see Government of
Malaysia v Lim Kit Siang [1988] 2 MLJ 12 (SC)). The appropriate recourse for D2, if it is convinced that an offence
has been committed, is to lodge a complaint with the relevant authorities for the necessary investigations to be
carried out. It is not to unilaterally declare that LCWP must be disqualified based on its own finding of a breach of
the law.

[25] Further, it is crucial to bear in mind that this court had already decided in the Broad Grounds of Decision dated
19.1.2024 in relation to Enclosure 449, an application by D2 under Order 33 of the Rules of High Court 2012 to,
inter alia, determine the question of whether civil courts have jurisdiction to determine or declare the commission of
criminal offenses (e.g., bribery), that the mere fact that no prosecution was pursued by the MACC in respect of the
alleged bribery does not preclude the Plaintiff from pursuing its civil claim on the same facts. There is a fundamental
distinction between the criminal burden of proof and the civil standard of a balance of probabilities. The absence of
criminal charges does not negate the availability of civil remedies premised on the same facts. D2’s attempt to
conflate the two is erroneous.

[26] Accordingly, LCWP cannot be said to have acted in conflict of the Plaintiff’s interests or to have conducted
itself in a manner unbefitting of an officer of the court by reason of not reporting D13’s admissions to the authorities.
The Plaintiff was entitled to maintain its civil claim against the Defendants notwithstanding the NFA decision by
MACC. In continuing to act for the Plaintiff in the civil proceedings, LCWP was merely discharging its professional
duties to its client. There is no rule of law or professional conduct that prohibits a solicitor from representing a client
in a civil claim just because the client had also made a complaint to the investigative authorities on the same
subject matter which did not result in criminal charges.

[27] It also bears emphasis that D13’s admissions are not the sole basis of the Plaintiff’s claim against D2 and the
other Defendants. The Plaintiff had pleaded various other causes of action and particulars of fraud in its Amended
Statement of Claim dated 3.1.2023 apart from the alleged bribery involving D13. The viability of the Plaintiff’s claim
does not hinge exclusively on D13’s evidence. Regardless of whether D13’s admissions to MACC were pursued or
not, the Plaintiff is entitled to ventilate all aspects of its claim before this court and to establish the Defendants’
liability on a balance of probabilities based on the totality of the evidence. LCWP’s omission to report D13’s
admissions does not compromise its ability to present the Plaintiff’s claim in a full and fair manner, much less
constitute an abuse of process.

[28] Moreover, the issue of whether LCWP had failed to report D13’s admissions to the MACC, even if assumed to
be true, is irrelevant to the question of whether the Consent Judgment with D13 should have been recorded. A
solicitor’s alleged breach of a statutory duty owed to a third party regulatory authority has no bearing on the validity
of any consent judgment entered into between the solicitor’s client and another party to the proceedings. The court
had already heard full arguments and decided to record the Consent Judgment between the Plaintiff and D13 on
6.3.2024 after due consideration of all relevant factors. That decision would not be any different even if LCWP had
failed to report D13’s admissions to the MACC.

[29] Ultimately, the recording of a consent judgment is a matter solely between the parties to that judgment. A non-
party to the consent judgment has no locus to object to it save on grounds of fraud, illegality, misrepresentation or
other vitiating factors (see Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393
(FC)). An alleged breach of duty by a party’s solicitors to the MACC is not a recognised ground to set aside a
consent judgment. The Consent Judgment with D13 was validly entered into between the Plaintiff and D13 and
cannot now be impugned by D2 through the guise of this disqualification application.

[30] Further, as stated above, LCWP’s alleged failure to report D13’s admissions is not in itself a sufficient basis to
infer any conflict of interest or impropriety that warrants disqualification. Even if there had been such a failure, it
cannot reasonably be said to impinge on LCWP’s professionalism or independence in acting for the Plaintiff in this
civil proceeding. LCWP is not beholden to the Defendants and does not owe them any duty to report matters to the
investigative authorities. That duty, if it exists, is owed to the MACC and it is for the MACC to enforce it. LCWP’s
 Page 5 of 16
Bank Pembangunan Malaysia Bhd v Sidqi Ahmad Said bin Ahmad & Ors [2024] MLJU 3335

paramount duty in this proceeding is to promote the Plaintiff’s interests and that duty is not compromised by any
omission to report to MACC.

[31] D2 has not shown that LCWP’s ability to act in the Plaintiff’s best interests is impaired by reason of any failure
to report D13’s admissions. Neither has D2 demonstrated that LCWP has gained any personal benefit or advantage
that places it in a position of conflict with the Plaintiff. A fair-minded and reasonably informed member of the public
would not conclude that LCWP’s removal is necessary to protect the proper administration of justice just because it
did not report a matter to the authorities. Adopting D2’s argument would set a dangerous precedent that solicitors
should be routinely disqualified whenever there is an unproven allegation that they did not comply with a statutory
reporting duty to a third party.

[32] In conclusion, on this issue, D2 has failed to establish any proper basis to disqualify LCWP from continuing to
represent the Plaintiff in this proceeding. The alleged failure to report D13’s admissions to the MACC, even if
proven, does not constitute a conflict of interest or a valid reason to remove LCWP as the Plaintiff’s solicitors. This
is especially since the Consent Judgment between the Plaintiff and D13 has been duly recorded by this court.
Connection between LCWP’s partner Dato’ Lim and D13/Kuber

[33] Another ground raised by D2 is that there is an alleged conflict of interest or appearance of impropriety arising
from the alleged connection between LCWP’s partner, Dato’ Lim and D13 and/or Kuber.

[34] D2 relies on a Utusan Malaysia article dated 7.12.2023 which reported that D13 is purportedly the owner and
beneficial controller of Kuber. D2 further relies on a Companies Commission of Malaysia search showing Dato’ Lim
as a substantial shareholder of Kuber holding 500,000 shares. On this basis, D2 contends that Dato’ Lim, by virtue
of his alleged substantial shareholding in a company purportedly controlled by D13, stands to gain pecuniary
benefits or interests and is therefore in a position of conflict of interest. D2 argues that this has influenced the
current manoeuvres in this suit, including D13 becoming a cooperative witness for the Plaintiff and entering into a
consent judgment with the Plaintiff.

[35] The Plaintiff submits that D2’s allegations are baseless, speculative and unsupported by evidence. The
Plaintiff highlights that the Utusan Malaysia article exhibited by D2 does not actually state that D13 owns or controls
Kuber, but merely speculates that this “appears” to be the case. Further, the Companies Commission of Malaysia
search tendered by D2 does not show D13 as a shareholder or office bearer of Kuber at all. The Plaintiff argues
that even if Dato’ Lim does hold shares in Kuber, that alone does not give rise to any reasonable apprehension of
bias or conflict of interest without cogent evidence of an actual link between Dato’ Lim/LCWP and D13 in relation to
the present suit.

[36] Having perused the evidence and considered the submissions of the parties, I find that D2 has failed to
establish any proper basis to warrant the disqualification of LCWP from continuing to represent the Plaintiff in this
proceeding.

[37] It is trite that the party seeking disqualification of a solicitor must demonstrate a strong case that the integrity of
the judicial process and the due administration of justice would be impaired by that solicitor continuing to act. There
must be sufficient evidence to give rise to a reasonable apprehension that the solicitor may misuse confidential
information to the detriment of the other parties in the litigation, is in a position of conflict or will be unable to
maintain professional independence, such that it would lead a fair-minded and informed member of the public to
conclude that the proper administration of justice requires that solicitor’s removal (see Ng Yee Hong v Malaysian
Institute of Accountants [2021] 1 MLJ 584 (CA) and Perbadanan Pengurusan 3 Two Square v 3 Two Square Sdn
Bhd [supra]).

[38] The evidence adduced by D2 in this case falls far short of meeting that threshold. The purported link or
connection between Dato’ Lim/LCWP and D13 is premised on nothing more than unsubstantiated conjecture and
surmise. The Utusan Malaysia article relied on by D2 contains only a vague, tentative assertion that D13 “appears”
to control Kuber, without stating the factual basis for that suggestion. The article does not actually prove that D13 is
the owner or controller of Kuber as alleged.

[39] Crucially, the Companies Commission of Malaysia search tendered by D2 himself does not show D13 holding
any position in Kuber as shareholder, director or otherwise. There is therefore no credible evidence of D13 having
any involvement in or control over Kuber, let alone any connection between Kuber and LCWP/Dato’ Lim that could
give rise to a conflict of interest.
 Page 6 of 16
Bank Pembangunan Malaysia Bhd v Sidqi Ahmad Said bin Ahmad & Ors [2024] MLJU 3335

[40] The mere fact that Dato’ Lim may hold shares in Kuber, without more, is insufficient to draw any reasonable
inference of impropriety or risk of misuse of confidential information. A solicitor’s ownership of shares in a company,
without any personal involvement in that company’s management or operations, does not ipso facto create a
conflict of interest with every party whom that company may have dealings with. Here, there is no evidence that
Dato’ Lim is involved in the running of Kuber’s business or stands to gain anything from Kuber’s purported
association with D13. D2 has not shown any link between Dato’ Lim’s shareholding in Kuber and his conduct of this
case as a solicitor. Broad, unsubstantiated allegations of pecuniary interests, without any particularised evidence of
actual bias, conflict or other impropriety, cannot be converted into an appearance or apprehension of partiality.

[41] Further, as rightly pointed out by the Plaintiff, the Consent Judgment between D13 and the Plaintiff has
already been considered and addressed by this court in the Broad Grounds of Decision dated 6.3.2024. I found that
the mere fact that D13 had affirmed an affidavit supporting the Plaintiff’s case before entering into the Consent
Judgment is insufficient to draw any inference of collusion or impropriety amounting to an abuse of process. The
strength of D13’s evidence remains to be tested at trial. Entering into a consent judgment does not detract from the
Defendants’ right to challenge D13’s credibility if there are grounds to do so. There is no credible basis to suggest
that the Consent Judgment was procured by any improper motives connected to Dato’ Lim’s alleged shareholding
in Kuber.

[42] In the circumstances, I find that D2 has not established any factual basis to reasonably infer a real risk of
conflict of interest or compromise of LCWP’s professional independence. Vague aspersions of a possible
connection between Dato’ Lim and D13/Kuber, unsupported by positive evidence, are plainly inadequate to impugn
the integrity of LCWP as the Plaintiff’s solicitors or the proper administration of justice in this case.
Favourable Consent Judgments with D13 and D14 secured in exchange for testimony against the other
defendants

[43] D2 advances the grounds that there is an alleged conflict of interest or appearance of impropriety arising from
LCWP’s role in securing favourable Consent Judgments with D13 and D14 purportedly in exchange for their
testimony against the other defendants such as D2.

[44] D2 contends that the circumstances leading to the Consent Order entered between the Plaintiff and D14 on
9.2.2023 vide Enclosure 338, as well as the attempt to enter a consent judgment between the Plaintiff and D13,
must be viewed with suspicion. D2 argues that the timing of D13 and D14’s affidavits admitting to the alleged
bribery and fraudulent acts, followed by the Consent Judgments on favourable terms to D13 and D14, give rise to
an irresistible inference that some arrangement was reached between LCWP and D13/D14 to procure their
evidence against the other defendants, which has not been disclosed to the court. D2 submits that LCWP would be
privy to these discussions and negotiations with D13 and D14, and should therefore be called as a material witness
to testify as to the arrangements reached. D2 contends that LCWP’s professional independence and duty to the
court have been compromised, warranting their disqualification.

[45] The Plaintiff submits that there is no basis to the allegations of any improper arrangement or ‘side deal’
between LCWP/the Plaintiff and D13/D14. The Plaintiff contends that the Consent Order with D14 was validly
entered before this court in the presence of all parties, and D2 did not raise any objections at that time. The Plaintiff
argues that D2 is therefore estopped from now challenging the Consent Order or the Plaintiff’s entitlement to refer
to D14’s affidavits. In any event, the Plaintiff submits that D14’s affidavits were filed by D14 and her solicitors alone,
not by the Plaintiff/LCWP. As for D13, the Consent Judgment was recorded after the court heard arguments as the
other defendants objected. The Plaintiff contends that it has always been transparent that D13 is a cooperative
witness, and the mere fact that D13 and D14 affirmed affidavits supporting the Plaintiff’s case before any consent
judgments were considered does not, without more, indicate any abuse of process.

[46] Having perused the evidence and considered the submissions of counsel, I find that on this issue D2 has not
made out any case warranting the disqualification of LCWP from continuing to act for the Plaintiff in this proceeding.

[47] The law is clear that there must be a strong case made out that the integrity of the judicial process would be
impaired by the solicitor’s continued representation before disqualification can be ordered. The court must consider
whether there is a real risk that the fair minded and reasonably informed member of the public would conclude that
the proper administration of justice requires the solicitor’s removal. The mere fact that the solicitor may be a
potential witness is not in itself sufficient. The conflict raised must go to a material and disputed issue (see Nasser
Ali Azayez Maktoum Al Sheraifi & Ors v Affinity Heights Sdn Bhd & Ors [2016] 7 MLJ 325 (HC)).
 Page 7 of 16
Bank Pembangunan Malaysia Bhd v Sidqi Ahmad Said bin Ahmad & Ors [2024] MLJU 3335

[48] Here, the evidence presented by D2 in support of its allegations of impropriety by LCWP is sorely lacking. The
assertion that some unspecified ‘irresistible inferences’ can be drawn from the timing of D13 and D14’s affidavits
followed by the Consent Judgments is wholly speculative and unsupported by actual proof. Bare conjecture of
possible discussions between LCWP and D13/D14 regarding the terms of the Consent Judgments, without any
positive evidence of improper inducements or illicit arrangements to procure false testimony, is plainly inadequate.

[49] The material before the court shows that the Consent Order with D14 was validly entered before this court on
9.2.2023 in the presence of all parties, including D2. D2 did not object to the recording of this Consent Order at that
time. An order made by consent between the parties is binding and cannot be reopened by a party unilaterally. It
gives rise to an estoppel, precluding the parties from going behind it unless and until it is set aside by the court (Lee
Heng Moy & Ors v Pacific Trustees Bhd & Ors [2016] 6 CLJ 368 (CA) and Tong Lee Hwa v Chin Ah Kwi & Another
Appeal [1971] 2 MLJ 75 (FC)). D2 not having appealed against or applied to set aside the Consent Order, he
cannot now be heard to complain about its effect.

[50] As for the Consent Judgment with D13, this has now been recorded by this court on 6.3.2024 after hearing
arguments from all parties. This further diminishes the basis for calling LCWP’s lawyers to explain the process. This
court had found in its Broad Grounds of Decision dated 6.3.2024 that there was no credible evidence of any
impropriety by the Plaintiff or its solicitors in procuring D13’s affidavit or the Consent Judgment to warrant refusing
the recording of the Consent Judgment. As the Consent Judgment with D13 has already been duly recorded by the
court after considering the parties’ submissions, it would be wholly inappropriate to now require LCWP’s lawyers to
take the stand to be questioned on their negotiations with D13.

[51] Contrary to D2’s contentions, the mere fact that D13 and D14 had affirmed affidavits supporting the Plaintiff’s
case before any consent order or judgment were proposed does not, in and of itself, indicate any abuse of process
or impropriety by LCWP/the Plaintiff in procuring their testimony. This court has already held in the Broad Grounds
of Decision dated 6.3.2024 that it is not an abuse for a party to present honest evidence to the court even if that
evidence is detrimental to his co-defendants. If the defendants believe that D13 or D14’s evidence is untrue, it is
open to them to challenge their credibility at trial. But it is quite another thing to allege an abuse of process without
compelling evidence of bad faith, dishonesty or collusion on the part of the party giving that evidence. D2 has not
produced any such evidence here.

[52] There is also no requirement in law that a party must procure the consent of the other parties before entering
into a consent judgment with a particular defendant. The Plaintiff was entitled to negotiate a settlement with D14
and/or D13 on terms it deemed fit. The terms of the Consent Order with D14 are not so manifestly favourable or out
of the ordinary that they indicate collusion or impropriety. The mere fact that D14 agreed to provide an undertaking
and the Plaintiff agreed to set aside the Mareva Order against her does not mean the Consent Order was a vehicle
to suborn false testimony against the other defendants. The strength and veracity of D13 and D14’s evidence
remains to be tested at trial. The existence of the Consent Judgments does not preclude D2 from impugning their
credibility if there are good grounds to do so.

[53] Further, the evidence shows that the Plaintiff has been transparent about D13 being a cooperating witness
from the outset. This was disclosed in the Plaintiff’s affidavit affirmed on 29.6.2022 (Enclosure 16) at paragraph 10.
It is not an abuse of process for a party to call a witness who was previously a co-defendant, so long as the other
parties are given the opportunity to challenge that witness’s evidence at trial. The adversarial process allows for
previously hostile witnesses to ‘change camps’, and for their testimony to be scrutinised and tested by cross-
examination. The court will assess the witness’s credibility and the weight to be attached to the testimony, having
regard to the totality of the evidence.

[54] Given the lack of specific evidence of any improper discussions or illicit arrangements between LCWP and
D13/D14, there is no basis to conclude that LCWP would be a necessary witness to any material issue in dispute
between D2 and the Plaintiff. The rule against advocate- witnesses in Rule 28 of the Legal Profession (Practice and
Etiquette) Rules 1978 does not mandate automatic disqualification of a solicitor upon a bare allegation that he may
have relevant knowledge. The evidence must demonstrate that the solicitor’s testimony relates to a disputed
question of fact that is material to the issues to be decided at trial. No such evidence has been shown here. Calling
LCWP to testify, in the absence of proof of its direct involvement in procuring demonstrably false testimony from
D13/D14, would be an unjustified fishing expedition.

[55] In the circumstances, I find that D2 has failed to establish any factual basis to impugn the integrity of LCWP’s
conduct such as to reasonably give rise to a conflict of interest or compromise of its professional duty to the court.
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There is nothing to indicate that LCWP had suborned false testimony from D13/D14 or colluded with them to
present untrue evidence to the detriment of D2 in this proceeding.
D13 found to lack credibility by courts previously

[56] One of the issues raised by D2 is whether the Plaintiff’s heavy reliance on and utilisation of the affidavit
evidence of D13, who D2 alleges has been found to lack credibility by the courts previously, means that LCWP is
acting improperly and giving rise to an appearance of impropriety.

[57] D2 relies on the Malaysian Court of Appeal’s decision in Ranjeet Singh Sidhu v Zavarco Bhd and another
appeal [2021] MLJU 1195 and the English Court of Appeal’s decision in Zavarco plc v Sidhu [2022] EWCA Civ
1040 to contend that there are judicial findings which impugn D13’s credibility. D2 argues that given D13’s alleged
lack of credibility, LCWP’s support and reliance on D13’s evidence to advance the Plaintiff’s case against the other
defendants like D2 goes beyond fair adversarial representation and impairs the integrity of the judicial process.

[58] The Plaintiff submits that D2’s contentions are misplaced as the issue of D13’s credibility is a matter to be
determined at the trial of this suit based on the evidence adduced. The Plaintiff argues that the decisions relied on
by D2 relate to separate suits and different issues, and do not amount to a finding that D13 is not a credible witness
for all purposes. Further, the Plaintiff contends that it is entitled to present the evidence of any witness to support its
case, even if that evidence is detrimental to the other defendants, so long as the defendants are given a fair
opportunity to challenge that evidence and the witness’s credibility at trial. The Plaintiff submits that its reliance on
D13’s affidavit evidence does not amount to suborning false testimony or abusing the court process.

[59] I have considered the arguments and materials put forward by both sides on this issue. It is an established
principle that any challenge to the credibility of a witness is a matter to be decided at trial when the witness gives
evidence in court and is subject to cross-examination. The court would assess the witness’s credibility based on his
demeanour, the internal and external consistency of his testimony, and how it stacks up against the other evidence
adduced. It is not an abuse of process per se for a party to rely on a witness even if there may be some doubts as
to his credibility based on his conduct in previous proceedings. It is for the trial court to determine what weight, if
any, to attach to that witness’s testimony after hearing all the evidence.

[60] Here, the prior Court of Appeal decisions relied on by D2 relate to suits concerning different issues and subject
matter from the present case. In Ranjeet Singh Sidhu v Zavarco Bhd and another appeal [supra], the Malaysian
Court of Appeal held that D13’s claim against Zavarco Berhad for repayment of loans was not supported by
documentary proof. In Zavarco plc v Sidhu [supra], the English Court of Appeal found that D13 had misapplied and
unlawfully diverted monies from Zavarco’s subsidiary companies for improper purposes. While these judgments do
make adverse remarks about D13’s conduct in managing Zavarco’s affairs and corporate funds, they do not amount
to a conclusive finding that D13 is not a credible witness for all purposes, especially in respect of unrelated matters.
The cogency of D13’s testimony in the present suit must be assessed by reference to the specific evidence he
gives here and how it withstands cross-examination, not by a broad-brush importation of comments made in a
different context.

[61] In any event, the Plaintiff is entitled to adduce the evidence of any witness to prove the facts in support of its
claim. A party is not precluded from relying on evidence from a witness just because that witness may have given
inconsistent testimony or acted discreditably in the past. The fact that the witness’s evidence may paint the other
defendants in a negative light also does not mean that the evidence is necessarily false or that the party is acting
abusively in presenting it. If the defendants believe that the witness is lying, it is open to them to put that to the
witness in cross-examination and to adduce contrary evidence to discredit the witness’s account. The trial judge will
have to assess the witness’s credibility based on the totality of the evidence.

[62] In the present case, there is no compelling proof that LCWP or the Plaintiff knew or believed that D13’s
evidence in his affidavit filed on 16.8.2022 (Enclosure 138) was untrue, yet sought to utilise it to improperly build a
case against D2 or the other defendants. The mere fact that D13 had made admissions against interest does not
mean those admissions were false. In fact, admissions against interest may carry more weight because a person is
unlikely to make untrue confessions that are detrimental to his own position. The strength and veracity of D13’s
account remains to be tested in cross-examination. D2 will have every opportunity to question D13 on his evidence
and to point out any inconsistencies or untruths if there is a basis to do so.

[63] The adversarial system contemplates that parties will present the evidence that best supports their respective
case. Putting forward evidence from a witness that may have previously been disbelieved in a different case is not
in itself improper, so long as that witness is made available for cross-examination and his testimony can be tested
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and contradicted. Evidence is not to be rejected solely on the basis of general attacks on the witness’s character or
allegations of prior dishonesty. The court must evaluate the actual contents of the witness’s testimony and assess if
it is credible in light of the entirety of the evidence before it.

[64] I find that D2 has not produced any specific proof that LCWP or the Plaintiff had conspired with D13 to present
knowingly false evidence to mislead the court and build an improper case against D2 or the other defendants. Bare
complaints that a witness is unreliable, without any prima facie evidence that his testimony in this particular case
has been tailored or suborned, are insufficient to establish an abuse of process to justify disqualifying the party’s
solicitors.

[65] In the circumstances, I am not satisfied that the Plaintiff’s reliance on D13’s affidavit evidence thus far, even if
he had been disbelieved in other cases, amounts to improper conduct by LCWP that compromises its integrity as
officers of the court. A solicitor is entitled to use whatever lawful means is available to advance his client’s case
within ethical bounds. Presenting sworn testimony from a witness to support the client’s claim is permissible, even if
that witness has a chequered history, provided the testimony is not known to be false. The solicitor’s duty to the
court is not breached just because the opposing parties have doubts about the witness’s credibility. The court will
adjudicate on that credibility as part of its assessment of the evidence in determining the case. The trial process is
designed to deal with such challenges to the reliability and weight of the evidence adduced.

[66] Nothing shown by D2 gives rise to a reasonable basis to conclude that LCWP had engaged in conduct that
falls short of the proper standards of a solicitor and officer of the court on account of the Plaintiff’s heavy reliance on
and utilising the affidavit evidence of D13.
Disclosure of arrangements with D13/D14 for their cooperation

[67] Another issue raised by D2 is whether LCWP should be compelled to disclose any arrangements made with
D13 and D14 to secure their cooperation, on the basis that they will be key witnesses against D2.

[68] D2 essentially seeks discovery of discussions and negotiations between LCWP/the Plaintiff and D13/D14 in
relation to the Consent Order entered with D14 on 9.2.2023 vide Enclosure 338 and the Consent Judgment with
D13 dated 6.3.2024 (Enclosure 634) which was opposed by D2 and the other defendants. D2 contends that the
circumstances leading up to these Consent Judgments must be revealed, failing which LCWP should be
disqualified as the Plaintiff’s solicitors. D2 argues that since D13 and D14 will be testifying against him as
cooperative witnesses at trial, the arrangements by which their cooperation was procured are relevant and
necessary to be disclosed.

[69] The Plaintiff submits that D2’s request amounts to a fishing expedition for discovery which is unsupported by
proper justification. The Plaintiff contends that D2’s application is a backdoor attempt to obtain documents relating
to legally privileged negotiations between the Plaintiff and D13/D14 in the guise of a disqualification application
against LCWP. The Plaintiff argues that D2 has not shown any legal basis to override privilege or to compel
disclosure of without prejudice communications. There is no evidence of any unlawful or unethical bargaining
between LCWP and D13/D14 that would warrant the extraordinary measure of discovery of their negotiations.

[70] I am not satisfied that D2 has established the necessity for the discovery sought against LCWP/the Plaintiff in
this application. D2 has not identified any specific document or class of documents relating to the negotiations with
D13/D14 that are relevant to the issues to be determined at trial between D2 and the Plaintiff.

[71] D2’s request amounts to a fishing expedition for discovery which is unsupported by proper justification. The
application appears to be a backdoor attempt to obtain documents relating to legally privileged negotiations
between the Plaintiff and D13/D14 in the guise of a disqualification application against LCWP. D2 has not shown
any legal basis to compel disclosure of without prejudice communications.

[72] The mere fact that D13 and D14 are expected to be witnesses against D2 at trial does not in itself entitle D2 to
discovery of otherwise privileged negotiations between them and the Plaintiff/LCWP. The appropriate procedure is
for D2 to seek leave to issue a subpoena for any relevant documents to be produced by the witnesses at trial, which
application will be determined based on the applicable principles for discovery against third parties. It does not
justify a roving request against the Plaintiff’s solicitors at this interlocutory stage, in the absence of evidence of any
specific document that is necessary for disposal of the action.

[73] Further, on 6.3.2024, this court allowed the recording of the Consent Judgment between the Plaintiff and D13
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after hearing arguments from the parties. In the Broad Grounds of Decision dated 6.3.2024, this court made, inter
alia, the following findings:
a) The defendants who are not parties to the Consent Judgment do not have the legal standing to object to
the recording of the Consent Judgment between the Plaintiff and D13.
b) The recording of the Consent Judgment between the Plaintiff and D13 does not prejudice the defendants’
right to a fair trial.
c) The circumstances surrounding the Consent Judgment between the Plaintiff and D13 do not raise
reasonable suspicion of an abuse of court process.
d) There is nothing irregular about the Plaintiff seeking to enter into the Consent Judgment with D13.
e) There is no concealment by the Plaintiff and/or LCWP of D13’s change of position.
f) The recording of the Consent Judgment between the Plaintiff and D13 would not undermine the
administration of justice and the integrity of the judicial process.

[74] In light of this court’s findings above, D2’s attempt to seek discovery in relation to the negotiations leading to
the Consent Judgment is a futile exercise. This court has already determined that there is no reasonable suspicion
of abuse of process or impropriety surrounding the Consent Judgment that warrants further investigation. D2 cannot
circumvent this by seeking discovery of the negotiations through a disqualification application against LCWP.

[75] Quite apart from the disclosure sought by D2 being a form of backdoor discovery, LCWP is protected by legal
professional privilege. Advocates and solicitors enjoy a general immunity from being compelled to testify on matters
within their knowledge by virtue of acting as lawyers in the proceedings. The rationale is to preserve the
confidentiality of lawyer-client communications and to avoid creating a conflict between the lawyer’s duty to his
client and his personal interest as a witness. This promotes full and frank disclosure between lawyer and client, and
ensures the lawyer’s independence and ability to focus on presenting the client’s case without being distracted by
the need to safeguard his own position.

[76] The mere fact that the lawyer would be able to give relevant evidence is not in itself sufficient reason to
override this privilege. Something more is required, such as where the lawyer’s evidence relates to a material
disputed issue that cannot adequately be addressed by other witnesses, or where the lawyer’s own conduct is an
issue in the case. An order overriding privilege is only be made in very exceptional circumstances, and the court will
be very slow to deprive a party of the important protection of legal professional privilege on an interlocutory
application (see Nationwide Building Society v Various Solicitors [1999] PNLR 52).

[77] The court must balance the potential value of the lawyer’s testimony against the prejudice to the administration
of justice if lawyers are too readily compelled to testify against their client’s interests. This includes the risk of
jeopardising the lawyer-client relationship, deterring full and frank communication and generating satellite litigation.
The fair disposal of the case must be the predominant consideration.

[78] Here, I am not satisfied that D2 has established compelling reasons to require LCWP’s lawyers to testify
regarding the negotiations leading to the Consent Judgments with D13 and D14. There is nothing to suggest that
the Consent Judgments were procured by any impropriety that would necessitate the lawyers being cross-
examined on the process. A consent judgment is a contractual agreement between parties to settle their dispute on
specified terms. So long as those terms are freely agreed and not illegal or contrary to public policy, the lawyers’
involvement in the negotiations is privileged and protected from scrutiny.

[79] D2 has not shown any prima facie case of LCWP’s lawyers acting unlawfully or unethically in the negotiations
such that their conduct itself is an issue that they must explain on the stand. The normal inference is that the
Consent Judgments were entered because the parties considered it to be in their interests to settle rather than
litigate those particular claims. The fact that D13 and D14 had also given or agreed to give evidence supporting the
Plaintiff’s case against the other defendants does not automatically taint the Consent Judgments with any
impropriety by LCWP. Parties are entitled to negotiate settlements with some defendants while pursuing their
claims against others. The motives and reasons for such settlements are legally privileged and not subject to
investigation unless there is clear evidence of unlawful conduct.

[80] Further, the change in D14’s position between her affidavits is a matter that goes to her credibility which can
be adequately dealt with by cross-examining her at trial. It does not necessitate calling LCWP’s lawyers to confirm
the existence of discussions which can readily be inferred from the fact that a consent order was subsequently
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entered. The affidavits were affirmed by D14 herself, not LCWP. There is therefore nothing that LCWP’s lawyers
can testify to that would materially add to the factual inquiry before the court. The reasons and motivations for D14’s
change of testimony are matters peculiarly within her own knowledge, not that of LCWP.

[81] If there is reason to believe that D13 or D14 have given or will give perjured testimony, the proper course is to
challenge them directly on that basis and/or to make a complaint to the relevant authorities. It is not to launch a
collateral attack on the Plaintiff’s lawyers on a speculative theory that they might have suborned false evidence. In
the absence of cogent proof to the contrary, the court must proceed on the assumption that LCWP’s lawyers have
acted professionally in compliance with their overriding duties to the court as officers of the court. A finding of gross
dereliction of duty should not be made against lawyers without a strong prima facie evidentiary basis.

[82] In the circumstances, I find that D2 has failed to discharge the burden of showing that it is necessary to call
LCWP’s lawyers as witnesses to ensure the fair disposal of the matter. There is insufficient basis to draw any
adverse inference against LCWP from the existence of the Consent Judgments and the change in D14’s testimony
that would require putting LCWP’s lawyers on the stand. D2’s request smacks of an opportunistic attempt to
circumvent legal professional privilege rather than a genuine complaint of relevant evidence being withheld.

[83] In conclusion, D2’s application to disqualify LCWP and to seek discovery of their negotiations with D13/D14 is
dismissed. D2 has not shown that the exceptional circumstances exist to lift legal professional privilege or that
LCWP’s lawyers are necessary witnesses to any material issue in dispute. The application appears to be a fishing
expedition for privileged information which is an abuse of process. Further, this court has already determined in its
Broad Grounds of Decision dated 6.3.2024 that the Consent Judgment between the Plaintiff and D13 does not raise
any reasonable suspicion of impropriety. There is therefore no basis to require LCWP’s lawyers to testify on the
negotiations leading to that Consent Judgment. The public interest in preserving the confidentiality of lawyer-client
communications and in upholding the finality of consent judgments outweighs D2’s speculative concerns in the
present case. As such, prayer 3 in Enclosure 515 is devoid of merit and is hereby dismissed.
Appearance of conflict

[84] It is argued by D2 that there are circumstances give rise to an appearance of LCWP’s conflict of interest that
impairs a fair trial for the 2nd Defendant. These stem from a) The timing and circumstances of D13’s “admissions”
of bribery b) LCWP’s reluctance to report the alleged bribery to the MACC c) LCWP entering into a favourable
Consent Judgment with D13 and d) LCWP’s partner Dato’ Lim’s connection with Kuber, a company alleged to be
controlled by D13. On this basis, D2 contends that LCWP should be disqualified.

[85] D2 very heavily leans on the American case of State of Georgia v Donald John Trump & Ors (Indictment No.
23SC188947), a decision of the Superior Court of Fulton County in the State of Georgia to support his arguments.
In this case involving the prosecution of Donald Trump and others in Georgia, the court found the Fulton County
District Attorney Fani Willis likely received some financial benefit (estimated $12,000-$15,000) from her romantic
partner and lead prosecutor Nathan Wade covering expenses on their joint vacations, but this amount was not
material or a motivating factor for the prosecution. However, the court ruled Willis’ conduct created a significant
“appearance of impropriety” that must be remedied, even if not rising to an actual conflict of interest requiring her
disqualification under Georgia law. The court ordered the prosecution to either remove Wade from the case and
restructure the team, or have Willis recuse herself and a new DA appointed to address the appearance issues
created by her relationship with Wade.

[86] With respect, the State of Georgia v Donald Trump decision relied on by D2 is distinguishable and does not
support D2’s contention that LCWP should be disqualified for an appearance of impropriety in the present case.

[87] First, the key factual basis for the finding of an appearance of impropriety in the Trump case was the financial
relationship between the District Attorney and her lead prosecutor. The evidence showed that the lead prosecutor
had paid for significant travel expenses for the District Attorney, raising the possibility of a personal financial benefit
to the District Attorney from the engagement of the lead prosecutor. No such direct financial link between LCWP
and D13 has been shown here. D2 only points to Dato’ Lim’s shareholding in a company allegedly controlled by
D13. However, a mere shareholding, without more, does not give rise to the same level of apparent financial
impropriety as the direct payment of personal expenses by the lead prosecutor to the District Attorney in the Trump
case.

[88] Secondly, in the Trump case, additional factors such as the inconsistent testimony about the personal
relationship between the District Attorney and lead prosecutor, as well as inappropriate public statements by the
District Attorney about the case, contributed to the overall finding of an appearance of impropriety infecting the
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prosecution. Those aggravating factors are absent here. There is no allegation of untruthful testimony by LCWP or
inappropriate public comments by LCWP that impugn the integrity of the proceedings.

[89] Thirdly, and most importantly, the Trump decision clearly recognised that an appearance of impropriety does
not automatically mandate disqualification of the entire prosecuting office, unlike an actual conflict. The court
expressly held that where an appearance of impropriety arises from specific conduct rather than status alone, the
court retains the discretion to fashion an appropriate alternative remedy short of complete disqualification, such as
removing the affected individual prosecutor. This stands in stark contrast to D2’s argument that any finding of an
appearance of impropriety on LCWP’s part necessarily requires LCWP’s disqualification from acting for the Plaintiff
altogether.

[90] It bears emphasis that the Trump court ultimately did not disqualify the entire District Attorney’s office despite
the finding of an appearance of impropriety. Instead, the court gave the District Attorney the option of either
voluntarily recusing herself together with her office, or removing the lead prosecutor in question. This underscores
the court’s reluctance to impose the drastic remedy of disqualification for a mere appearance of impropriety, as
opposed to an actual conflict. It also demonstrates the availability of more measured alternatives to address any
apparent impropriety, such as removing the individual lawyer concerned rather than disqualifying the law firm
entirely.

[91] Transposing those principles to the present case, any purported appearance of impropriety arising from Dato’
Lim’s alleged connection to D13 plainly does not warrant the disqualification of all of LCWP from continuing to
represent the Plaintiff. This is especially since no actual impropriety by Dato’ Lim or LCWP has been shown.
Contrary to D2’s argument, the Trump decision supports the opposite conclusion – that disqualification of the entire
law firm is not the appropriate response to an ostensible appearance of impropriety in the absence of an actual
conflict. At most, it would only justify the removal of the specific lawyer concerned, not the entire firm.

[92] Accordingly, the Trump case does not assist D2 in establishing that LCWP must be disqualified from acting for
the Plaintiff. The factual and legal premises are materially different. D2 has neither shown the same level of
apparent impropriety as the financial entanglement in Trump, nor has D2 cited any authority that an appearance of
impropriety necessitates blanket disqualification of the whole law firm in question. The Trump court’s nuanced
approach of evaluating the appropriate remedy for an appearance of impropriety based on the specific facts, rather
than mechanically ordering disqualification in every case, ought to be adopted here. Applying that approach, there
is no basis to disqualify LCWP from continuing to represent the Plaintiff in this suit.
Restriction of Enclosures 113, 338, 37, 181 and 138

[93] One of the consequential prayers sought by D2 is for an order that LCWP and the Plaintiff be restrained from
relying on or referring to the Consent Order with D13 in Enclosure 113, the Consent Order with D14 in Enclosure
338 as well as the affidavits of D14 and D13 in Enclosures 37, 181 and 138 respectively.

[94] D2 contends that these Consent Judgments and affidavits should be excluded as they were procured through
improper means, collusion and abuse of process by LCWP and the Plaintiff. D2 argues that there are serious
questions as to the circumstances in which D13 and D14 came to provide affidavit evidence in support of the
Plaintiff’s case and entered into lopsided the Consent Judgments on favourable terms. D2 alleges that this smacks
of an attempt by LCWP/the Plaintiff to manipulate the evidence against the other defendants and to suppress
material that may undermine the Plaintiff’s case. On this basis, D2 submits that the impugned Consent Judgments
and affidavits should not be allowed to be deployed against D2 and the co- defendants.

[95] In response, the Plaintiff argues that D2’s attempt to restrict the use of the impugned affidavits and Consent
Judgments is misconceived and unsustainable. The Plaintiff contends that affidavits filed in court in accordance with
the applicable rules and served on all parties form part of the evidence in the case. Every party is entitled to refer to
and rely on the affidavits filed, subject to the court’s assessment as to their relevance and weight. The Plaintiff
submits that there can be no question of ‘expunging’ or disregarding affidavits which have been validly filed, even if
they support the opposing party’s case. Any disputes as to the veracity of the contents are to be tested by cross-
examination at trial. The Plaintiff further argues that the Consent Judgments are binding contracts entered into
between the relevant parties to settle the claims between them. A non-party to the Consent Judgments has no
locus to apply to set it aside or to restrict the parties’ entitlement to rely on the terms of their agreement.

[96] There is no provision in the Rules for an affidavit to be treated as a nullity or expunged from the record merely
because the deponent later entered into a settlement with one of the parties. An affidavit is a form of sworn
testimony which takes effect from the time it is affirmed and filed. Once that is done, it becomes available to be
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relied upon as evidence, regardless of any subsequent change in the relationship between the deponent and the
parties to the proceedings. Until and unless it is formally struck out through an amendment of the pleadings or
withdrawal of the reliance on that affidavit by the party who filed it, it remains part of the evidential record.

[97] An order to expunge an affidavit from the record is an exceptional measure which is only granted where the
affidavit is scandalous, irrelevant or otherwise oppressive (see Hartanah AP Rakyat Bhd v Universal Frontier Sdn
Bhd [2023] 7 CLJ 763 (HC)). The fact that the affidavit contains evidence contrary to a party’s case is not a valid
reason to expunge it, so long as it complies with the formalities for affidavits. The dispute as to the correctness of
the deponent’s testimony goes to weight rather than admissibility.

[98] Here, D14’s affidavits in Enclosure 37 and Enclosure 181 have been duly filed in accordance with the
applicable rules and served on all the parties, including D2. They have not been withdrawn by D14 nor struck out by
the Plaintiff. There is no basis to now say that the Plaintiff is precluded from referring to these affidavits or relying on
their contents to support its claim against D2 and the other defendants. The fact that D14 had subsequently entered
into the Consent Order with the Plaintiff on certain terms does not mean her prior evidence is retroactively nullified
or rendered inadmissible. D2 remains entitled to challenge the credibility of D14’s deposition via cross-examination,
but that is a matter to be dealt with at trial and does not warrant an interlocutory order excluding the affidavits at this
stage.

[99] Similarly, D13’s affidavit in Enclosure 138 is part of the record as it was properly filed and served. The fact that
D13 had subsequently entered into the Consent Judgment with the Plaintiff on 6.3.2024 which was duly recorded
by this court after hearing arguments from all parties does not retrospectively negate the admissibility of his prior
affidavit. Parties are not precluded from relying on affidavits that were validly filed, even if the deponent later
reaches a settlement with the opposing party. The Consent Judgment binds the parties thereto, but it does not
automatically expunge the deponent’s earlier testimony from the record.

[100] D13’s status as a witness supporting the Plaintiff’s case does not mean his evidence is presumptively
incapable of being relied upon against D2. This court had already considered and rejected the defendants’
objections to the recording of the Consent Judgment in the Broad Grounds of Decision dated 6.3.2024. The court
found that the mere fact that D13 had affirmed an affidavit supporting the Plaintiff’s case before entering into the
Consent Judgment is insufficient to draw any adverse inference of impropriety to warrant refusing the Consent
Judgment. The issue of D13’s credibility and the weight to be attached to his affidavit evidence is a matter to be
assessed at trial based on the totality of the evidence, notwithstanding the subsequent Consent Judgment.

[101] The upshot is that D13’s affidavit in Enclosure 138 remains part of the evidential record and the Plaintiff is
entitled to refer to it in support of its claim against D2 and the other Defendants. The court’s decision to record the
Consent Judgment between D13 and the Plaintiff does not operate as an embargo against the Plaintiff relying on
D13’s affidavit. The two are separate and distinct. The Consent Judgment settles the dispute between D13 and the
Plaintiff inter se, but it does not determine the veracity or weight of D13’s evidence vis-à-vis the other Defendants.
That falls to be decided at trial.

[102] Further, a consent judgment between the parties to that judgment is a binding contract that cannot be
unilaterally reopened by a non-party. In Tiong Nam Trading & Transport (M) Sdn Bhd v Commercial Union
Assurance (M) Sdn Bhd [2008] 6 MLJ 342 (CA) it is established that a consent order is essentially a matter
between the consenting parties, and non-parties lack the standing to interfere with or oppose the recording of such
a consent judgment/order, unless special exceptions like illegality, lack of jurisdiction or fraud can be shown. A
stranger to the consent judgment has no legal right to restrict the parties to that judgment from relying on its terms
as between them. Any attempt by a non-privy to limit the efficacy of a consent judgment is an impermissible
collateral attack.

[103] In the present case, the Consent Order dated 9.2.2023 in Enclosure 338 between the Plaintiff and D14 is a
concluded agreement which binds those two parties upon the terms stated therein. It was entered before this court
in the presence of D2, without any objection by D2 at that time. D2 not having himself applied to intervene in that
judgment or to set it aside, he cannot now apply to prohibit the Plaintiff from relying on that judgment in its claim
against him. Insofar as the terms of the judgment may be relevant to D2’s liability, it is for the trial judge to assess
its weight and significance together with all other evidence at the end of the trial. It is not a basis for imposing a
blanket exclusion order in limine.

[104] As for the Mareva Order with D13 in Enclosure 113, this concerns an ad interim order for Mareva relief which
has since been withdrawn by way of the Consent Judgment on 6.3.2024 (Enclosure 634). It is unclear what
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continuing legal effect, if any, this Consent Judgment has on the substantive dispute between the Plaintiff and D2.
In any event, as stated above, D2 as a non-party has no standing to dictate whether the Plaintiff as a party to that
order can rely on it in pursuing its claim against D2 and the other defendants. Any question of the relevance, weight
and impact of that order is for arguments at trial.

[105] In the circumstances, I find that D2 has not established any valid grounds for an order restricting the
Plaintiff’s entitlement to refer to or rely on the impugned affidavits and Consent Judgments in prosecuting its case
against D2 and the co-defendants. There is no evidence that these documents were procured by improper means
or abuse of process such as would justify the exceptional measure of excluding them from consideration.

[106] In the absence of specific proof of unlawful or unethical conduct by LCWP/the Plaintiff in securing the
affidavits and Consent Judgments, the court must proceed on the basis that those documents are part of the
evidential record which parties are entitled to rely upon, subject to the trial judge’s assessment of weight and
probative value. Any disputes as to the correctness or credibility of the evidence are matters to be ventilated at trial,
and do not warrant a preliminary ruling to expunge the affidavits or restrict reference to the Consent Judgments.

[107] Accordingly, D2’s prayer 5 in Enclosure 515 for an order restraining the Plaintiff and LCWP from relying on or
referring to Enclosures 113, 338, 37, 138 and 181 in the proceedings against D2 is dismissed.
NFA as an undisputed fact in favour of D2 and other defendants

[108] One of the issues raised by D2 is whether this court should make a declaration that the MACC’s decision of
NFA against the late Dato’ Zafer in respect of allegations of bribery should be accepted as an undisputed fact
binding on the Plaintiff in D2’s favour.

[109] D2 contends that since the MACC had issued an NFA letter dated 26.9.2022 to Dato’ Zafer indicating that the
criminal investigation against him could not be continued, this conclusively establishes that there was no
wrongdoing on Dato’ Zafer’s part in relation to the bribery allegations. As such, D2 argues that the NFA decision
should be recognised as an incontrovertible fact negating the Plaintiff’s claim against D2 and the co-defendants
premised on Dato’ Zafer’s alleged receipt of bribes. D2 submits that LCWP and the Plaintiff should not be permitted
to pursue the bribery claim against the defendants when the authorities have determined that no charges will be
brought against the alleged bribe recipient.

[110] The Plaintiff submits that D2’s attempt to have the MACC’s NFA decision declared as an undisputed fact in
this civil suit is untenable and misconceived. The Plaintiff argues that it had previously addressed this issue in
resisting D2’s application under Order 33 rule 2 of the Rules of Court 2012 to determine two purported questions of
law prior to the trial of this action. In dismissing that application, this court had held in its Broad Grounds of Decision
dated 19.1.2024 that the mere fact that no prosecution was pursued by the MACC does not preclude the Plaintiff
from proving the alleged bribery and conspiracy in a civil claim. The Plaintiff contends that D2 is essentially seeking
to re-agitate the same issue that has been considered and rejected by this court.

[111] Under Malaysian law, it is clear that criminal proceedings and civil suits are separate and distinct. The fact
that a person has been acquitted of a criminal charge or that no criminal charges were brought in the first place
does not operate as an estoppel against establishing his liability for a civil wrong premised on the same facts. In
Protasco Bhd v Pt Anglo Slavic Utama & Ors [2020] MLJU 1413 the High Court aligned with the principle that an
acquittal in a criminal case does not automatically create a res judicata or issue estoppel against the same facts
being litigated in a subsequent civil suit, which has to be decided based on a lower standard of proof.

[112] The different standards of proof in a criminal prosecution and civil claim mean that the failure to prove an
offence beyond reasonable doubt does not equate to a finding that those facts cannot be proved on a balance of
probabilities. The absence of a criminal charge or conviction therefore does not automatically negate the viability of
a civil action arising from the same factual matrix.

[113] This was precisely the point emphasised by this court in dismissing D2’s earlier Order 33 application. At
paragraph 123 of the Broad Grounds of Decision dated 19.1.2024, I held that “the fact that no prosecution was
initiated or that the MACC concluded NFA is not a bar to the Plaintiff’s right to pursue civil remedies”. This is
consistent with the Court of Appeal’s decision in Subramaniam a/l Muniandy v Letchumi a/p Thasan & Ors [2021]
MLJU 281 at paragraph 59 that “even when the police have instructed that the case as NFA, it means nobody will
have to face a criminal charge in court. But that does not mean in any way a civil suit is prevented from being filed.”

[114] The upshot is that the MACC’s decision not to pursue criminal charges against Dato’ Zafer is a distinct matter
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Bank Pembangunan Malaysia Bhd v Sidqi Ahmad Said bin Ahmad & Ors [2024] MLJU 3335

from the Plaintiff’s entitlement to maintain a civil claim against D2 and the co-defendants on the basis of the alleged
bribery and conspiracy. The two are not mutually exclusive. The NFA letter to Dato’ Zafer does not give rise to an
issue estoppel against the Plaintiff proceeding with its civil suit as the parties and issues are different.

[115] It is important to note that the NFA letter dated 26.9.2022 exhibited by D2 was issued after Dato’ Zafer had
passed away on 20.7.2022. The letter specifically states that the investigation against the late Dato’ Zafer “could not
be continued”. In the premises, the NFA decision appears to be more of an administrative step taken as a
consequence of Dato’ Zafer’s demise rather than a positive finding that there was no bribery. A decision not to
prosecute an individual due to his demise can hardly be equated to a full-blown determination on the merits of the
allegation after trial.

[116] Further, D2 seeks to elevate the NFA letter, which really amounts to a decision not to prosecute, to a binding
factual finding that the alleged bribery did not occur. With respect, that is a bridge too far. Regardless of the reasons
why the MACC did not pursue the matter against Dato’ Zafer, that does not by itself establish that no bribery in fact
took place. A prosecutorial decision does not carry the same weight as a judicial finding made after a trial where all
relevant parties have had the opportunity to present their case. It cannot conclusively determine the factual
outcome of a separate civil proceeding in which different issues and burdens of proof apply.

[117] Moreover, in civil proceedings, findings of fact fall within the exclusive purview of the trial court based on the
evidence adduced by the parties. An interlocutory application to have certain facts declared as ‘undisputed’ is an
impermissible attempt to pre-empt the trial process and to restrict the court’s ability to adjudicate the merits after
hearing the entirety of the evidence. The factual question of whether bribery and conspiracy occurred between the
parties is a matter to be determined by this court at the end of the trial, and an NFA letter in respect of potential
criminal liability does not bind the court’s hands in that regard.

[118] Finally, even if the NFA letter is taken at face value, it only concerns the potential criminal liability of Dato’
Zafer as the alleged recipient of the bribes. It does not speak to the separate and distinct issue of whether the other
defendants, including D2, were complicit in offering the bribes or participating in a conspiracy as contended by the
Plaintiff in this civil suit. The MACC’s decision not to prosecute Dato’ Zafer therefore cannot be extended to
exonerate the other defendants from civil liability. It does not have the legal effect of placing an undisputed halo of
innocence over the entirety of D2’s dealings. The Plaintiff’s claim against D2 and the co-defendants falls to be
assessed on the strength of the evidence adduced at trial, independently of the prosecutorial decision in respect of
Dato’ Zafer.

[119] For these reasons, D2’s application to have the NFA letter to Dato’ Zafer declared an undisputed fact in his
favour in these proceedings is plainly unsustainable. It amounts to an abuse of process as it seeks to re-litigate an
issue already rejected by this court in striking out D2’s earlier Order 33 application. The law is clear that the
absence of criminal charges does not preclude the pursuit of civil remedies arising from the same facts. This court
had unequivocally held that the MACC’s decision not to prosecute Dato’ Zafer does not bar the Plaintiff’s right to
maintain its claim against the defendants for the alleged bribery and conspiracy.

[120] In the circumstances, I dismiss prayer 6 in D2’s application in Enclosure 515. The appropriate forum to
ventilate the existence and implications of the alleged bribery and conspiracy is at the trial of this action where the
Plaintiff’s claim can be tested on a consideration of all admissible evidence. It is not for this court to make an
interlocutory ruling declaring certain facts to be conclusively determined in the defendants’ favour based on extra-
judicial developments like an NFA letter. The Plaintiff is entitled to have its day in court to prove its claim,
unshackled by the MACC’s prosecutorial decision in a different context. Justice requires that this civil dispute be
resolved on the merits at a full trial, not by way of preliminary skirmishes to whitewash the factual slate.
Whether costs to be awarded on an indemnity basis

[121] The Plaintiff has asked for costs to be awarded against the D2 and the 4th, 7th to 9th, 11th, 17th, 22nd, 24th
and 25th Defendants on an indemnity basis in respect of Enclosure 515 and 516 to disqualify LCWP. The Plaintiff
relied on the High Court case of Low Huei Ying & Anor v Andrew Gregory Sewell (practising in the name and style
of Messrs Andrew Sewell) [2023] MLJU 2084 to submit that costs on an indemnity basis should be ordered if the
court finds that the disqualification application was frivolously filed with the intention to harass and delay the
proceedings.

[122] Encik Syamsul Azhar, counsel for the 4th, 7th to 9th, 11th, 17th, 22nd, 24th and 25th Defendants, arguing for
his clients, whose arguments D2 adopted on this point, objected to costs being awarded on an indemnity basis. He
submitted that they had to file this application as the defendants felt aggrieved by the circumstances surrounding
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the Consent Judgments entered with the D13 and D14, the admissions made by D13 and D14 in their affidavits,
and the non-disclosure of the NFA letters issued to some of the Defendants. The defendants contended that they
had notified the Plaintiff of their intention to raise these issues and had no choice but to file this application when the
Plaintiff did not provide a satisfactory response.

[123] I have considered the submissions of the parties on the issue of costs. The general rule is that costs should
follow the event and that the unsuccessful party should pay the costs of the successful party. However, the court
has discretion to depart from this rule depending on the circumstances of the case. Costs on an indemnity basis
may be ordered in cases where the paying party has conducted the litigation improperly or unreasonably, such as
where the application was frivolous or vexatious.

[124] However, in the present case, while I have found that the applications to disqualify LCWP is without merit
and should be dismissed, I am not satisfied that the applications were frivolous or filed with the intention to delay
the proceedings, such that it warrants an order for indemnity costs against these defendants.

[125] Based on the chronology of events, the issues relating to the Consent Judgments with D13 and D14, their
admissions in the affidavits, and the NFA letters were relevant developments that transpired after the defendants
had entered appearance in this suit. While I have found that these issues do not justify the disqualification of LCWP,
I accept that these issues had caused concern to these defendants, such that they felt compelled to raise it to the
court through this application. The defendants had also issued letters to the Plaintiff to notify them of their intention
to raise these issues, before filing this application. This shows that the application was not filed frivolously or
recklessly by the defendants without first attempting to resolve the matter with the Plaintiff.

[126] In the circumstances, I do not find that the defendants had conducted the application unreasonably or
improperly to warrant an order for indemnity costs. As the defendants had attempted to ventilate their grievances
before the court, albeit unsuccessfully, they should not be penalised with indemnity costs.

[127] Accordingly, while I agree that the defendants shall bear the costs of this application as the unsuccessful
party, I order that such costs be paid to the Plaintiff on a standard basis rather than on an indemnity basis.
Conclusion

[128] In conclusion, I find that D2’s application to disqualify LCWP from acting as solicitors for the Plaintiff in this
proceeding must be dismissed. D2 has failed to establish any proper grounds that would warrant the drastic remedy
of depriving the Plaintiff of its chosen counsel. The allegations of LCWP’s failure to report bribery to MACC,
connection to D13 through Kuber, and conduct in relation to the Consent Judgments with D13 and D14 do not
demonstrate actual conflict or compromise of professional independence that would impair the integrity of the
judicial process. The alternative prayers sought by D2 to restrict reference to various court documents and to
declare the NFA as an undisputed fact are also unsustainable. While I accept that D2 and the other defendants had
concerns about certain developments in this case that led them to file this application, their conduct does not
warrant costs to be awarded on an indemnity basis. Accordingly, Enclosure 515 is dismissed with costs of
RM10,000.00 to be paid to the Plaintiff on a standard basis. The trial should proceed with LCWP continuing to
represent the Plaintiff, with any challenges to the credibility of D13 and D14’s evidence to be properly ventilated
through cross-examination at trial.

End of Document