PUTRAJAYA (Nov 25): The auditor who signed off 1MDB's 2014 accounts, and who had disciplinary action taken against him which he is still challenging, has succeeded in blocking a law firm from representing the Malaysian Institute of Accountants (MIA) on grounds of conflict of interest.
The bid by Ng Yee Hong of Deloitte PLT to remove Steven Thiru & Sudhar Partnership (STSP) as MIA’s legal representative in Ng's judicial review proceedings was allowed by the Court of Appeal last week.
The court allowed Ng’s application because one of STSP's lawyers, T Sudhar, had appeared for MIA's investigating committee at Ng's disciplinary hearing before MIA's disciplinary committee.
The three-member bench led by Justice Datuk Lau Bee Lan, unanimously allowed Ng's appeal in directing STSP to recuse itself from representing MIA in the ongoing judicial review proceedings.
The other judges who made the decision were Justices Datuk P Ravinthran and Datuk Mohd Soffian Abdul Razak. Ng had named MIA's disciplinary committee and MIA as respondents in the judicial review application.
Sudhar had argued that Ng's appeal to recuse his law firm is academic as the High Court had on Feb 26 dismissed the auditor's first judicial review application.
However, the Deloitte partner's counsel Datuk Malik Imtiaz Sarwar said he had informed the High Court and Sudhar of his client's appeal.
In his 21-page judgment dated Nov 20 that was released yesterday, Justice Ravinthran wrote that the appellate court bench disagreed with High Court Justice Datuk Nordin Hassan (now a Court of Appeal judge) in allowing STSP to continue to represent MIA.
The judge said as the members of MIA's three committees are drawn from the MIA council, STSP could potentially liaise with any of the members of the investigating committee, the disciplinary committee or the disciplinary appeal board.
“As the investigating committee is the investigator/prosecutor, we agree with Malik that the objectivity of STSP in defending the charge at the judicial review hearing would be open to question as they represented the investigating committee at the disciplinary committee's hearing.
“In other words, STSP could very well be defending their own earlier advice to the investigating committee at the judicial review proceedings,” Ravinthran said.
Question of conflict of interest raised
The judge further said that the court must bear in mind that the impugned decision which is the subject of the judicial review proceeding is that of the disciplinary committee and not the investigating committee.
“The relevant disciplinary proceeding documents could have been made available easily to any law firm instructed to represent the MIA.
“Thus, given the apparent conflict of interest, we cannot see why the MIA must appoint STSP who represented the investigation committee at the prosecution stage before the disciplinary committee. We also disagree with the opinion of the High Court judge that any other law firm that is appointed to represent the MIA would be similarly conflicted as STSP.
“Any other law firm appointed to represent MIA would not have appeared for the investigating committee at the disciplinary committee's hearing. Thus, they would be able to represent MIA at the judicial review hearing objectively and impartially without being preoccupied with the question whether they had given the correct advice to the investigating committee in respect of Ng's charge,” said Justice Ravinthran.
In setting aside the High Court's decision on Nov 28 last year, the Court of Appeal directed MIA to pay RM15,000 costs to Ng.
Two complaints lodged against Ng
Ng is facing two different sets of charges in relation to 1MDB. The first followed an allegation made by Andrew Anand Solomon Devesahayam on March 31, 2015 and the other by Damansara MP Tony Pua Kim Wee on May 26, 2015.
A decision has been made regarding the first complaint while at the time of the first judicial review hearing last year, the second one was still pending.
However, as reported by theedgemarkets.com on Oct 19 last year, the High Court allowed Ng's inter-parte injunction, disallowing the MIA’s disciplinary committee from making public the findings on him in the first case, as he had not exhausted the appeal procedures since he had lodged an appeal to MIA's disciplinary appeal board.
Despite today’s decision, Ng's appeal over the first judicial review before the Court of Appeal is still pending and is now fixed for hearing on Jan 6, 2021.
Justice Ravinthran noted in a postscript of his written judgment that STSP wrote to court before the delivery of this decision to inform that the MIA disciplinary appeal board had dismissed Ng's appeal on Nov 9 this year with regards to the first complaint.
“However, we decided not to invite further arguments from the parties in the light of this development as it does not have any significant impact on our decision,” the judge added.