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2025 MarsdenLR 4590
COURT OF APPEAL PUTRAJAYA
LIM TUCK SUN – Appellant
Versus
CELCOM MALAYSIA BERHAD & ORS AND ANOTHER APPEAL – Respondent
[Civil Appeal Nos: W-02(IM)-154-01-2023 & W-02(IM)-155-01-2023]
The court ruled that a judgment lacking legal status and arising from extraneous matters can be expunged, emphasizing the need for judicial impartiality and the right of affected parties to intervene.
Headnote:(A) Courts of Judicature Act 1964 - Section 3 - Legal Profession Act 1976 - Section 99(2) - Communications and Multimedia Act 1998 - Section 233(1)(a)(i) - Appeal concerning dismissal of applications to intervene and expunge a judgment regarding a viral video clip of court proceedings - The High Court's judgment was deemed unnecessary and extraneous, lacking legal status as it did not arise from any formal application by parties to the main suits - The court emphasized the importance of judicial independence and the need for fair treatment of all legal practitioners. (Paras 29, 30, 31, 128)
(B) Judicial Recusal - The court found a real danger of bias in the High Court Judge's handling of the applications, warranting recusal - The judge's comments in the impugned judgment were deemed prejudicial to the appellant's reputation. (Paras 114, 126)
(C) Intervention Application - The court ruled that the appellant had a right to intervene due to the critical remarks made against him in the impugned judgment, which were not justified. (Paras 100, 102)
(D) Expunction Application - The court held that the impugned judgment should be expunged in its entirety as it did not constitute a valid judgment. (Paras 128)
JUDGMENT
Introduction
[1] These are 2 appeals heard together before this Court , namely Civil Appeal No W-02(IM)-154-01/2023 ("Appeal 154") and Civil Appeal No W-02(IM)-155-01/2023 ("Appeal 155").
[2] Appeal 154 is related to an application to recuse the Learned High Court Judge (Learned HCJ) from hearing and disposing of the Application to Intervene and Expunge, and is referred to as the "Recusal Application."
[3] Appeal 155 is related to an application for leave to intervene ("Intervention Application") and thereafter, to expunge ("Expunction Application") parts of the Learned HCJ's Judgment (Doctored Video Clip) dated 18 February 2022 ("Impugned Judgment"). These applications are collectively referred to as the "Application to Intervene and Expunge."
[4] The two applications are collectively referred to as the "Applications (2 NAs)". The Applications (2 NAs) were heard and disposed of by the Learned HCJ on 30 December 2022, with the grounds of judgment delivered on 20 June 2023 ("the Applications (2 NAs) Judgment").
[5] It is pertinent to note that the Learned HCJ, despite dismissing the Intervention Application, decided to hear the merits of the Application to Intervene and Expunge, and also the Recusal, and dismissed the same. Both Applications were disposed of on their respective merits.
[6] In these Appeals, the Respondents made no submissions and informed this Court that they were not involved in the Impugned Judgment written by the Learned HCJ. Meanwhile, by application, the Malaysian Bar, through its representative, stands in as amicus curiae to this Court .
[7] The appeals before us centred on a unique fact arising from a judgment written by the Learned HCJ (referred to as the Impugned Judgment, which did not pertain to the main suits, i.e., Kuala Lumpur High Court Civil Suit No: D5-22-610-2006 ("Suit 610") and Kuala Lumpur High Court Civil Suit No: D1-22-1960-2008 ("Suit 1960"). The aggrieved party in this case is none other than a counsel (the Appellant) who had represented a case in both suits that had been disposed of much earlier. Before we elaborate further, it is beneficial to review the facts that led to the filing of the appeals before us.
Background Facts
[8] The Appellant, Mr Lim Tuck Sun ("LTS"), was the co-counsel for the 4th to 9th defendants in Suit 610 and the 4th to 6th defendants in Suit 1960 at the Kuala Lumpur High Court . These defendants comprise German individuals and a German company (collectively referred to as the "German Entities"). Their lead counsel was Mr Christopher Leong Sau Foo, who was assisted by the Appellant. The Learned HCJ presided over both these suits, which were heard concurrently.
[9] On 27 September 2021, the matter was fixed for the examination of Thomas Ach ("Thomas"), one of the witnesses for the Appellant's clients, via the Zoom platform ("Continued Trial"). During the Continued Trial, there were several objections taken by counsels to questions posed to Thomas, which resulted in heated exchanges between the counsels, namely Mr Lim Kian Leong (counsel for the 1st and 2nd defendants), Mr Lim Tuck Sun, and the Learned HCJ. This was reflected in the full transcripts of the Continued Trial and subsequently was highlighted by the Learned HCJ at p 395 of the Impugned Judgment.
[10] In November 2021, there was a confidential out-of- Court settlement of the claims in Suit 610 and Suit 1960 involving the German Entities, where both suits were withdrawn against them without the liberty to file afresh and no order as to costs by virtue of a Consent Order dated 19 November 2021. The German Entities ceased to be parties and consequently, the Appellant's firm's retainer came to an end.
[11] On or around 19 January 2022, a short audio-video clip of approximately 40 seconds in length ("the Video Clip") was widely circulated on a mobile messaging application, WhatsApp. It contained a brief snippet of the heated exchanges between the Learned HCJ, the Appellant, and Mr L
