KUALA LUMPUR (June 19): The High Court has allowed an application by Prime Minister Datuk Seri Anwar Ibrahim to set aside an order for him to appear as a subpoenaed witness in a RM30 million suit brought by 12 plaintiffs suing businessman Datuk Vinodh Sekhar and his wife, Winny Yeap Liew Hoh.

In allowing the application, High Court Judicial Commissioner Datuk Muhammad Adam Edward Abdullah set aside the subpoena issued on Jan 15, and held that the 12 plaintiffs had failed to demonstrate that the prime minister was a relevant witness whose attendance was necessary for the just determination of the case.

The judge said that the plaintiffs had failed to establish that the prime minister was “a relevant and material witness”.

“The issue before this court is whether the plaintiffs have shown that the applicant has relevant and material evidence on the pleaded issues and which necessitates his (Anwar’s) attendance as a witness in the trial,” Muhammad Adam said.

Muhammad Adam noted that Anwar “is not alleged to have received any of the plaintiffs’ monies”, “is not alleged to have made any representation to the plaintiffs”, “is not alleged to have entered into any contract with them”, and “is not alleged to have conspired with either defendant”.

The plaintiffs invested in what they believed were technology-driven ventures linked to Vinod and his companies between 2002 and 2006. They claim they were misled and suffered losses when the projects failed to materialise.

They further claimed that Vinod had invoked Anwar’s name to project credibility and to deflect inquiries. They relied principally on references in emails suggesting that the defendant was “aligned to Anwar” and references to lawyers supposedly “working with Anwar”.

“In my judgement, that is patently insufficient,” Muhammad Adam said.

The plaintiffs had also relied on photographs, social media postings, and public events involving Anwar and Vinod.

“At its highest, such material may show acquaintance or association. It does not show that the applicant has personal knowledge of the pleaded transactions.

“Relationship does not equate with materiality,” the judge added.

“A name appearing in an email does not by itself make the bearer of that name a material witness. Otherwise, trials will become unmanageable. Anyone mentioned in an email, photographed with a party, or referred to in a conversation, may be compelled to attend court. That is not the law.”

Muhammad Adam stressed that “a subpoena is not issued as of right without control” and that the burden rests on the party seeking the subpoena.

“The witness must be someone who has seen the facts or knows the facts,” he said.

“The court must also ensure that the subpoena is not oppressive, not an abuse of process, and not used for a collateral purpose.”

In Anwar’s affidavit to the court, he stated that he was “not involved in, privy to, or aware of, the alleged dealings, representations, or transactions” between the plaintiffs and the defendants.

Muhammad Adam noted that the counsel for the plaintiffs had accepted that position during submissions.

The judge also highlighted a key admission by a plaintiff-witness and one of the 12 plaintiffs, Graham David Bell.

“The fourth plaintiff, Graham David Bell, accepted in cross-examination that there was not a shred of evidence that the first defendant has used the applicant’s name to solicit any investment or monies from him or any of the plaintiffs.”

“I find that admission to be crucial,” Muhammad Adam said.

“The plaintiffs say the applicant (Anwar) is required, because his name was used to perpetrate fraud, but their own witness accepted that there was no evidence that [Anwar’s] name was used to solicit investments or monies.”

The judge further held that Anwar could not be compelled merely to deny allegations.

“A subpoena cannot be justified merely because something useful might emerge in cross-examination or because a denial by a potential witness may be rhetorically helpful to one party,” he said.

Muhammad Adam held that “the plaintiffs have failed to show that the applicant is a relevant and material witness”.

“No useful purpose would be served by compelling his attendance.

“To do so would be oppressive and would divert the trial from the real legal issue.”

The court then allowed Anwar’s application, set aside the subpoena issued against him, and awarded costs of RM20,000 subject to the allocator.

Datuk Seri Rajan Navaratnam appeared for Vinod, while Collin Andrew Perreira appeared for the investors, and Sanjay Mohan represented Anwar.