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2025 MarsdenLR 6342
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 clarified that a High Court's judgment unrelated to any formal application lacks legal standing, warranting expungement of potentially damaging remarks against non-parties to protect judicial integrity and reputation.
Headnote:(A) Rules of Court 2012 - Order 15 r 6(2)(b), Order 92 r 4; Courts of Judicature Act 1964 - Sections 3, 67; Legal Profession Act 1976 - Section 99(2) - Appeal concerning applications to intervene and expunge parts of a judgment made by a High Court judge on grounds of misconduct of counsel. Court ruled that the Impugned Judgment was authored beyond its jurisdiction as it was not related to any formal application or decision from the main suits. The court reaffirmed the essential nature of the proceedings and that remarks potentially damaging to an appellant's reputation may demand expungement. (Paras 29, 30, 68, 105-128)
(B) Judicial Independence and Administration of Justice - The High Court judge's remarks were determined not to adhere to proper judicial standards, leading to a breach of natural justice. The court emphasized the importance of equitable treatment of all counsel. (Paras 68, 105-127)
Facts of the case:
The appellant, a counsel, sought to intervene and expunge a judgment relating to his conduct during court proceedings that had been publicly criticized in a viral video. He argued that the judgment was authored in the absence of relevant parties and improperly reflected on his professional conduct, potentially damaging his reputation.
Findings of Court:
The applications to intervene and expunge were dismissed by the High Court; however, the appeals were allowed, expunging the Impugned Judgment entirely.
Issues: The court considered the legal status of the judgment, the appropriateness of the High Court judge's comments, and whether the appellant could intervene despite not being a party in the proceedings.
Ratio Decidendi: The court ruled that the Impugned Judgment lacked judicial necessity and served no purpose other than to respond to public perception. It upheld that adverse comments regarding a counsel must be appropriately justified and that the inherent jurisdiction allows for their expungement to preserve the integrity of the judicial process.
Result: The appeals were allowed, the Impugned Judgment was expunged in its entirety.
Based on the provided legal document, the key points regarding the case are as follows:
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The Impugned Judgment was issued independently of any formal application and did not arise from the main disputes in the underlying suits. It was authored to address issues related to a viral video clip and the conduct of counsel during court proceedings (!) (!) .
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The judgment was primarily aimed at clarifying the events surrounding the dissemination of the Video Clip, which was considered to scandalize the Court and undermine its authority. The judgment emphasized the importance of judicial independence and the public interest in maintaining the integrity of the judicial process (!) (!) .
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The court found that the Impugned Judgment lacked the essential characteristics of a formal judgment or decision, as it did not contain reasoning or ratio decidendi and was mainly obiter dicta. Consequently, it did not meet the criteria of a "decision" under the relevant statutory definition, and its legal status was deemed not to be that of a binding judgment (!) (!) .
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The Impugned Judgment was not issued as part of the main suits and did not dispose of any rights or interests in those suits. It was not made in the course of a trial or hearing that finally disposed of the parties' rights, and therefore, it was considered not to be appealable as a "decision" under the applicable law (!) (!) .
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The Court of Appeal recognized that the applications filed by the appellant, which sought to intervene and to expunge parts of the judgment, were properly initiated under the procedural rules and were validly brought before the court. These applications are considered orders rather than rulings, and they are therefore appealable (!) (!) .
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The court held that the applications to intervene and to expunge the judgment could have been considered under the court's inherent jurisdiction, as the specific procedural rules relied upon were not applicable in this context. The failure to invoke the inherent jurisdiction was deemed a procedural error (!) (!) .
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The court found that the High Court erred in applying the specific intervention rule and should have exercised its inherent jurisdiction to permit the appellant's intervention, especially given the nature of the statements made against him in the Impugned Judgment (!) (!) .
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The statements regarding the appellant in the Impugned Judgment were deemed to be prejudicial and not justified by the circumstances. The court recognized that such remarks could adversely affect the appellant's reputation, and therefore, they should be expunged to prevent injustice (!) (!) .
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The court identified a real danger of bias on the part of the presiding judge, primarily due to extrajudicial comments and expressions of bias during proceedings, which compromised the judge's impartiality. This raised concerns about the fairness of the proceedings and warranted recusal (!) (!) .
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The appealability of the applications was affirmed on the basis that they did not arise from any final or substantive ruling in the main suits but were orders that could be reviewed independently. The court emphasized that the procedural framework supports the appeal of such orders, especially when they are not made in the course of a trial that disposes of the parties' rights (!) (!) .
In summary, the court's decision focused on the improper issuance of the Impugned Judgment outside the formal judicial process, the procedural correctness of the applications filed, the court's jurisdiction to expunge offensive remarks, and the necessity to maintain judicial impartiality and integrity.
| Table of Content |
|---|
| 1. overview of appeals and applications (Para 1 , 2 , 3 , 4 , 5 , 6 , 8) |
| 2. context of controversial video clip (Para 14 , 15 , 17 , 18 , 19) |
| 3. details of the applications filed (Para 21 , 22 , 23 , 24 , 25) |
| 4. high court's decision and reasoning (Para 29 , 35 , 39 , 40) |
| 5. impugned judgment status and appealability (Para 42 , 43 , 44 , 45) |
| 6. validity of the recusal application (Para 87 , 100 , 101 , 102) |
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
