A solicitor must be disqualified from representing a client if there is a conflict of interest or if they may be a witness, to uphold the integrity of the legal profession and ensure public confidence in justice.

Introduction

[1] The Plaintiff, in encl 6, seeks to recuse and/or disqualify the 1st Defendant's solicitor, Mr Siew Pak Thai and/or any other solicitors in the firm of Messrs P.T. Siew & Associates from further representing the 1st Defendant in this action.

[2] The Plaintiff and the 1st Defendant, both shareholders and directors of the 2nd Defendant, the Company, each hold an equal share.

[3] In the Originating Summons in encl 1, the Plaintiff is seeking leave to initiate derivative proceedings against the 1st Defendant on behalf of the 2nd Defendant. This legal action pertains to the alleged wrongdoing and breaches of fiduciary duties committed by the 1st Defendant against the 2nd Defendant.

The Plaintiff's Grounds For Recusal

[4] The Plaintiff's application is premised on the following grounds:

a. Mr Siew Pak Thai and/or Messrs P.T. Siew & Associates were appointed as legal advisors to the 2nd Defendant;

b. There exists a conspiracy between Mr Siew Pak Thai and the 1st Defendant;

c. If the leave application is granted, Mr Siew Pak Thai will be named as a Defendant and could potentially serve as a witness in the derivative proceedings;

d. The Plaintiff filed a complaint against Mr Siew Pak Thai with the Disciplinary Board;

e. Allowing Mr Siew Pak Thai and/or Messrs P.T. Siew & Associates to continue representing the 1st Defendant would create a conflict of interest, contravening r 28(a) and r 29 of the Legal Profession (Practice and Etiquette) Rules 1978 (LPPE Rules 1978);

f. Continuing Mr Siew Pak Thai's representation of the 1st Defendant, given the circumstances and facts of this matter, would bring disrepute to the legal profession and jeopardize the clients' interests.

Contention, Evaluation And Findings Of The Court

[5] Upon perusal of the cause papers filed herein and having considered the written and oral submissions presented by both parties, I allowed the Plaintiff's application in encl 6. My reasons are stated below.

[6] The Plaintiff contended that it would be improper and pose a conflict for Mr Siew Pak Thai and/or Messrs P.T. Siew & Associates to represent the 1st Defendant in this suit. This contention arises from their prior appointment as legal advisors for the 2nd Defendant approximately in 2018. Furthermore, Mr Siew Pak Thai and/or Messrs P.T. Siew & Associates were involved in various internal matters of the 2nd Defendant.

[7] The Plaintiff asserted that Mr Siew Pak Thai represented a company named R.N. Const & Dev JV Sanjung Cekap in an arbitration against SPP Development Sdn Bhd. In this arbitration, R.N. Const & Dev JV Sanjung Cekap, a Joint Venture Company of the 2nd Defendant, received a total Arbitration Award of RM2,642,923.72.

[8] This Arbitration Award was paid in two instalments. The first payment of RM1,480,975.23 was correctly transferred to the 2nd Defendant's account. However, the second instalment of RM1,161,948.49 was erroneously transferred to the 1st Defendant's account, constituting an unauthorised transaction.

[9] Consequently, the Plaintiff alleged that the 1st Defendant wrongfully transferred the balance of the arbitration award, totaling RM1,186,000.00, to the 1st Defendant's personal account instead of directing it to the 2nd Defendant's Company.

[10] The Plaintiff contended that this unauthorised transaction by the 1st Defendant constitutes a crucial ground and wrongdoing, leading to the initiation of the current leave application for derivative proceedings against the 1st Defendant.

[11] The Plaintiff further alleged that Mr Siew Pak Th