Wednesday 24 Apr 2024
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This article first appeared in The Edge Financial Daily on April 13, 2020

KUALA LUMPUR: One of the most controversial cases in Malaysia’s legal history is Ayer Molek Rubber Company vs Insas Bhd, where Datuk KC Vohrah was one of three judges who heard the appeal in the Court of Appeal in 1995.

Vohrah had sat with Datuk NH Chan (who passed away in 2016) and Tan Sri Siti Norma Yaakob (who went on to become the chief judge of Malaya).

Chan, who led the bench, had famously quoted from Shakespeare’s Hamlet, in saying “something is rotten in the state of Denmark” with regards to the purported transgressions of justice. The High Court which had earlier heard the case was housed in Wisma Denmark (also referred to as Denmark House) in Kuala Lumpur.

All three judges wrote separate judgements in the appeal over the stay granted by the High Court in the transfer of 540,000 Ayer Molek shares to Insas.

In an in-house Malaysian judiciary publication in 2014 to mark the Court of Appeal’s 20th anniversary, Vohrah revealed that former Chief Justice Tun Eusoff Chin had apparently called a High Court judge into his chambers before the appeal was heard, and when the judge entered, Eusoff pointed to a pile of files on his table.

‘He (Eusoff) said the papers were related to the Ayer Molek case and he indicated that the appeal had no merit,’ Vohrah said in the article.

The former Court of Appeal judge, who died yesterday, however did not reveal the identity of the High Court judge.

 

Background of the case

The case involved the grant of an ex parte order to compel Ayer Molek to effect the transfer of 540,000 shares of Ayer Molek to Insas in the share register of the company and to issue new certificates in Insas’ names within two working days of their receiving the share certificates.

Insas was represented by lawyer Datuk VK Lingam, while Datuk Loh Siew Cheang appeared for Ayer Molek. It has been reported that Lingam and Eusoff has been photographed together with their family in a New Zealand trip in the 1990s. Both were alleged to be involved in judicial fixing, during the Royal Commission of Inquiry into the Lingam video clip in 2008.

On April 12, 1995, Ayer Molek filed an application to set aside the ex parte order granted two days earlier. That application came up for hearing before the High Court on April 13, 1995 but the judge adjourned it to April 27, 1995 which was after the two days period he allowed for compliance of his ex parte order.

The defendants immediately applied for a stay of the exparte mandatory order pending disposal of their application to discharge it. The High Court judge refused to grant a stay of his ex parte order.

On April 14, 1995, the transfer of the shares was registered in the share register of Ayer Molek and new share certificates were issued to Insas under compliance of the ex parte order.

On April 18, 1995, Ayer Molek filed a notice of appeal against the ex parte order in the Court of Appeal. On the same day, they filed a motion for a stay of the ex parte order pending their appeal.

 

Grave injustice

It was during the Court of Appeal hearing that Chan, Siti Norma and Vohrah noticed the grave injustices perpetrated in the case at the High Court level, and granted an interim order restraining the respondents from exercising any rights (including disposing of the shares on July 26, 1995) pending the disposal of the appeal.

“Here Insas — through their legal advisers — have abused the process of the High Court by instigating the injustice through misuse of the court’s procedure by manipulating it in such a way that it becomes manifestly unfair to the defendants.

‘By doing what they did, these unethical lawyers have brought the administration of justice into disrepute. While it does not render the proceedings to be in any way invalid, it may give the impression to right thinking people that litigants can choose the judge before whom they wish to appear,’ Chan wrote in the judgement.

The Federal Court heard Insas’s appeal on Aug 1, 1995. Led by Eusoff, the panel provided the written grounds 12 days later, setting aside the Court of Appeal decision and allowed the transfer of shares to Insas.

The Malaysian Bar cried foul, claiming that the apex court bench led by Eusoff was illegally constituted.

It was only in 2006, in Lingam’s RM100 million defamation suit against Euromoney Publications PLC over an article Malaysian Justice on trial which cited the Ayer Molek case at the Federal Court, that then High Court judge Datuk Seri Mohd Hishamudin Md Yunus (who later retired as Court of Appeal judge) said the apex court judgement was not valid as the bench was illegally constituted.

This was as the third judge on the apex court bench, Datuk Pajan Singh Gill, was not legally competent to sit on that bench as a High Court judge can only hear an appeal at the High Court and Court of Appeal, but not the Federal Court.

‘Justice Hishamudin ruled that the judgement of the Court of Appeal by Chan, Siti Norma and Vohrah in the Ayer Molek case is still wholly intact and is still a valid and binding judgement and I am entitled, indeed I am duty bound, to take cognisance of the judgement in dismissing Lingam’s defamation claim in this action,’ Vohrah wrote in his 2014 article.

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