PUTRAJAYA (Sept 19): A counsel for the disciplinary committee (DC) of the Malaysian Institute of Accountants (MIA) told the Court of Appeal (COA) on Tuesday that the complaints lodged by former Damansara member of Parliament Tony Pua and Andrew Anand Solomon Devasahayam against Deloitte PLT partner Ng Yee Hong over the 1Malaysia Development Bhd (1MDB) audit were about different matters.
John Matthew, who appeared for the committee, said Pua's complaint against Ng was about his conduct during the 2013 and 2014 audits of 1MDB ending March 31, whereas the other complaint against Ng by Devasahayam on March 31, 2015, was only about the 2014 audit report.
Matthew said it involved two different proceedings and two different charges.
“For Pua’s complaint, there is a specific complaint that Ng did not do due diligence with regards to evaluating 1MDB’s cash flow.
“The DC never contended that the charges faced by Ng in Devasahayam’s complaint were the same as Pua. The charges in the second complaint by Pua are distinct,” he said.
Matthew was submitting in the DC’s appeal against the High Court's decision last year to allow Ng’s judicial review to strike out Pua’s complaint.
While Devasahayam had lodged the complaint on March 31, Pua lodged his complaint against the Deloitte partner on May 26, 2015, following which separate proceedings were held.
The DC had finished conducting its hearing over Devasahayam’s complaint, where Ng was found guilty, and was in the midst of a subsequent hearing over Pua's complaint when the High Court allowed the judicial review.
Judge Datuk Wan Ahmad Farid Wan Salleh at the High Court decided that the committee's decision to have the hearing on Pua’s complaint was “tainted with procedural impropriety" and ordered it to be quashed, with no order as to costs.
"The impugned decision is tainted with procedural impropriety which is amenable to judicial review. In making the impugned decision, DC had failed to act in a manner that is both independent and autonomous,” the High Court had ruled.
Porres Royan, acting for MIA, said Wan Ahmad Farid had decided on an issue that was not submitted in court, and hence the COA as an appellate court could exercise its jurisdiction in reversing the High Court decision.
Besides this, Porres argued that Ng should have waited and allowed the second proceeding on Pua’s complaint to conclude first, as the auditor has an opportunity to appeal the matter further with the Disciplinary Appeal Board (DAB) of MIA.
Following this, he said the High Court should not have gone ahead in granting the judicial review as there was no decision made with regards to the appeal at the DAB and hence, the appellate court could reverse its decision.
Ng shouldn't have to go through hearing again, says lawyer
Datuk Malik Imtiaz Sarwar, who appeared for Ng, told the appellate bench that his client had grounds to seek the judicial review, as there was a decision following proceedings for the first complaint, and he is now facing a second hearing that is similar to the first, which amounted to procedural impropriety.
He said with the committee continuing its proceedings, Ng has to undergo the process all over again, where in the first he was already found guilty, suspended and fined. Ng is currently appealing the decision.
Malik said there is a concern or inference that the committee may rubberstamp the decision, which is why the challenge is made.
He added that initially, the High Court refused to grant leave for Ng over Pua’s complaint, but the COA allowed leave as it recognised that it can take the step without waiting for a decision from the DAB.
He said Ng is faced with two successive disputes where the substance of complaint on his purported conduct was the same.
Malik said the principles of res judicata — a legal doctrine meant to bar the re-litigation or duplicate hearings between the same parties — should apply.
He added that Ng had been subjected to six days of cross-examination for the complaint made by Devasahayam, and the committee should not subject his client to undergo the process all over again.
“This is why we say in our application on the grounds of challenge, the judgement by the High Court allowed the relief sought including to quash the second hearing,” he said.
Malik added that the requirement by the MIA and the committee is that each complaint should be heard separately and individually, although the charge is the same.
This, he said, was not right as the second allegation made by Pua is over his client’s purported conduct, which is the same as the first allegation.
He added that the subsequent allegations covered a wide range of matters.
Mathews, in his reply, maintained that the two complaints are different in nature and the appellate court should grant the appeal
Judge Datuk Azizah Nawawi, who led the three-member bench that also included Datuk See Mee Chun and Mohamed Zaini Mazlan, reserved judgement.
Pua had accused Deloitte Malaysia of intentionally or negligently failing to conduct sufficient and necessary due diligence and audit of the cash flow and liquidity risk of 1MDB in 2013 and 2014.