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2021 MarsdenLR 561
HIGH COURT MALAYA MUAR
KARAMJIT SINGH SARUP SINGH & ORS – Appellant
Versus
KIRAT SINGH SANDHU MANCHARANJIT SINGH & ORS (ENCL 53) – Respondent
[Civil Suit No: JB-22NCVC-42-06/2018]
Disqualification of counsel due to conflict of interest is essential to maintain the integrity of judicial processes and public confidence in justice system.
Headnote:(A) Legal Profession (Practice and Etiquettes) Rules 1978 – Rule 28(a) – Disqualification of counsel – Application for disqualification of Mr. CC Quek due to conflict of interest, as he was privy to the defendants' strategies and may be called as a witness for them – Courts possess inherent power to disqualify counsel in matters where justice may be perceived as compromised – Prior decisions and rules affirm disqualification as crucial for procedural integrity – The court ruled in favor of disqualification to uphold justice principles. (Paras 10, 12, 48)
(B) Courts' Inherent Authority – The judicial system must ensure that the representation does not impair public confidence and fairness – Disqualification is a protection for all involved, not a punishment for the counsel's conduct. (Paras 12, 47).
Facts of the case: The application concerns Mr. CC Quek’s continued representation of plaintiffs and a defendant after being in contact with the adversarial party. The court had to consider the conflict of interest arising from his prior knowledge of the defendant's strategy.
Findings of Court: The court confirmed that due to the context in which Mr. Quek found himself, he must be disqualified from acting for the plaintiffs, allowing fair representation.
Issues: The primary issue was whether Mr. Quek's prior contact with a defendant compromised the integrity of the representation and the trial.
Ratio Decidendi: The court determined that attorney conduct which could compromise the integrity of representation warrants disqualification irrespective of any intent to act unethically.
Result: Application allowed; Mr. CC Quek is disqualified from representing the plaintiffs.
JUDGMENT
Introduction
[1] This is an application (encl 53) pursuant to O 92 r 4 Rules of Courts 2012 and rr 3, 5, 6, 12, 16, 17, 18, 19, 23, 26, 31, 32 and 43, Legal Profession (Practice and Etiquettes) Rules 1978 to disqualify Mr CC Quek from further acting for the Plaintiffs and the 3rd Defendant.
[2] The prayers sought for in the Notice of Application are as follows:
i. Mr CC Quek to be disqualified from further acting for the Plaintiffs and the 3rd Defendant) pursuant to O 92 r 4 Rules of Courts 2012 and r 3, 5, 6, 12, 16, 17, 18, 19, 23, 26, 31, 32 and 43 Legal Profession (Practice and Etiquettes) Rules 1978.
ii. Cost.
iii. Any other relief that the Court deems fit and just.
[3] The Cause Papers are as follows:
i. Notice of Application (Enclosure 53)
ii. Affidavit-in-support (Enclosure)
iii. Supplementary Affidavit (Enclosure)
iv. Affidavit-in-opposition (Enclosure)
v. Additional Affidavit (Enclosure)
vi. Affidavit-in-reply (Enclosure)
vii. 2nd Affidavit-in-reply (Enclosure)
viii. Notice of intention to use Affidavit (Enclosure)
[4] This Court was faced with 2 applications which are encl 41 and encl 53.
[5] Although encl 53 was filed later in time, this Court finds that the decision of encl 53 may affect the rights of parties to be represented by legal practitioner of their own choice and hence it may also affect the arguments presented by parties in encl 41, this Court decided to hear and dispose of encl 53 before hearing encl 41.
The Background Facts Of The Application
[6] On 4 August 2020, the Learned Counsel for the Plaintiffs, Mr CC Quek informed the Court that before the enforcement of the Movement Control Order ("MCO") by the Malaysian Government, he met the 3rd Defendant (Malkit Singh A/L Sarup Singh) and the 3rd Defendant said that he wish to appoint Mr Quek as his solicitor as well as counsel on record. The MCO prevented the filing of the papers for appointment of solicitor as well as application to change the status of the 3rd Defendant from being a Defendant and to include him as one of the Plaintiffs, until Court has resumed.
[7] On 21 July 2020, Mr Quek further filed an affidavit-in-support of an Application to amend the Pleadings (Enclosure 41). A few weeks later which was on 7 August 2020, Mr Quek further filed and served an affidavit which is purportedly a correctional affidavit. The purpose of the correctional affidavit was to put the correct position of the 3rd Defendant, Mr Malkit Singh as the 3rd Defendant but not as a committee member.
[8] The contention is that Mr Quek had the meeting with the 3rd Defendant and hence has the benefit of knowing the Defendants' strategies and versions for the purpose of the trial and it created the necessity of calling Mr Quek as a witness for the one or more of the Defendants. This in turn, has compromised Mr Quek's standing as a solicitor acting for the Plaintiffs.
[9] Earlier in a proceeding before this Court on 22 July 2020, Mr Quek did not inform the parties and the Court, of his meeting with the 3rd Defendant before the enforcement of the MCO. An Affidavit to the effect was affirmed on 21 July 2020 and Mr Quek was said to have known the position but yet said nothing to the Court on the 22 July 2020. This has, in the view of the 1st and 2nd Defendants, compromised the position of Mr Quek and hence the application pursuant to O 92 r 4 Rules of Courts 2012 and r 3,5, 6, 12, 16, 17, 18, 19, 23, 26, 31, 32 and 43 Legal Profession (Practice and Etiquettes) Rules 1978.
The Issue In Respect Of This Application To Disqualify A Counsel From Acting For A Party
[10] The Cambridge English Dictionary (Cambridge University Press 2021) defines "disqualify" as "to stop someone from being in a competition or doing something because they are unsuitable or they have done something wrong:"
[11] It is a verb which means "be disqualified from something /doing something"
[12] The New Zealand Court of Appeal decision of Black v. Taylor [1993] 3 NZLR 403 which held that the Cour
