The court can disqualify counsel if their prior representation creates a conflict of interest, compromising public perception of justice.

Leong Wai Hong J:

[Application to disqualify counsel and solicitors]

Introduction

[1] The right to counsel of choice is a right accorded to any litigant before our courts. However, such a right must be balanced against the broader interests of justice. The court has an inherent power to bar counsel if a well-informed, fair-minded member of the public would conclude on the facts presented that the proper administration of justice requires the removal of the counsel. The overarching philosophy underlining the removal is that the administration of justice requires an unqualified perception of its fairness in the eyes of the general public.

[2] The above principle has been applied in Ng Yee Hong v. Malaysian Institute Of Accountants 2020 MarsdenLR 2049 ; [2021] 1 MLJ 584; [2021] 1 CLJ 666 CA [" Ng Yee Hong "], Vijayalakshmi Devi Nadchatiram v. Saraswathy Devi Nadchatiram 2000 MarsdenLR 1181 ; ; [2000] 4 AMR 4243 FC [" Vijayalakshmi Devi Nadchatiram "], Black v. Taylor [1993] 3 NZLR 403 New Zealand court of Appeal [" Black v. Taylor "] and Grimwade v. Meagher, Hegland, Morgan, Lidgett, Reid & Bellheath Pty Ltd [1995] 1 VR 446 Supreme court of Victoria ["Grimwade"].

[3] The principle is now invoked by the 1st defendant in an application before me dated 24 September 2024 [Enclosure 14] by the 1st defendant ["D1"] to disqualify Mr Yuean Jin Han and following that Messrs Cheang & Ariff from acting for the plaintiff Ee Soon Guan Sdn Bhd in an Originating Summons ["OS"] [Enclosure 1] and other actions in relation to or arising out from this OS.

[4] D1 had earlier requested Mr Yuean Jin Han and Messrs Cheang & Ariff not to act but the request was rejected. [See Exhibit "LWH-8" Enclosure 15 at pp 39 to 312 for two letters from Messrs W H Kan both dated 6 June 2024 to Messrs Cheang & Ariff].

[5] The disqualification application is premised on the fact that Mr Yuean Jin Han and Messrs Cheang & Ariff had previously acted for D1 and D2 [now deceased] and also the plaintiff Ee Soon Guan Sdn Bhd and a related company Paloh Development Sdn Bhd, at a time when D1 and D2 [now deceased] were directors of both the plaintiff and Paloh Development Sdn Bhd.

[6] The letter of engagement from Messrs Cheang & Ariff dated 30 May 2022 addressed to both Ee Soon Guan Sdn Bhd and Paloh Development Sdn Bhd for the attention of D2 [now deceased] can be seen in Exhibit " CA -1" Reply affidavit (Enclosure 17) at pp 16 to 20.

[7] The matter in which Mr Yuean Jin Han and Messrs Cheang & Ariff had previously acted was to advise D1, D2 [now deceased] and the plaintiff how to respond to a Show Cause notice dated 21 May 2021 issued under s 551(1) of the Companies Act 2016 by the Companies Commission of Malaysia ("CCM") against the plaintiff to be struck off from the register.

[8] It is the contention of D1 that Mr Yuean Jin Han and Messrs Cheang & Ariff had taken instructions from D1 and D2 [now Deceased] when responding to the Show Cause notice, - at a time when D1 and D2 [now deceased] were directors of both the plaintiff and Paloh Development Sdn Bhd -, and are therefore privy to confidential facts in respect of their acts or omissions as directors of the plaintiff and Paloh Development Sdn Bhd.

[9] D1 contends that it is now improper for Mr Yuean Jin Han and Messrs Cheang & Ariff to now choose to act for the plaintiff in this OS to sue D1 and D2 [now deceased] to, inter-alia, jointly and severally indemnify the plaintiff for all penalties, fines and/or warrants levied against the plaintiff by CCM and other authorities for their failure to file the plaintiff's annual returns, financial statements and/or directors' report with a backlog from Financial Year End of 1990 to 2023. [See OS encl 1].

[10] After hearing counsel on 27 February 2025, I directed further written submissions to be filed to address some points raised during the hearing and reserved my decision to 4 April 2025.

[11] On 4 April 2025, I had allowed the application with costs of RM 10,000 to be born