23 Aug Court to decide Friday on Lingam’s application, 24 others
PUTRAJAYA: Come Friday, lawyer Datuk V K Lingam and 24 others will know whether they will face contempt proceedings for alleging plagiarism in a Federal Court written judgement, or succeed in their application to set aside the leave obtained to cite them for contempt.
A five-man Federal Court panel led by Justice Tan Sri Suriyadi Halim Omar set the date to deliver the court’s decision after hearing submissions from counsel and senior federal counsel representing the parties in the matter.
The other judges presiding on the panel were Federal Court judges Tan Sri Ahmad Maarop, Datuk Hasan Lah, Datin Paduka Zaleha Zahari and Datuk Jeffrey Tan Kok Wha.
The panel heard submissions on the application brought by Lingam and 24 others to set aside the leave obtained by liquidators of Kian Joo Holdings Sdn Bhd, Ooi Woon Chee and Ng Kim Tuck, to cite them for contempt.
The court proceedings saw retired Federal Court judge Datuk Seri Gopal Sri Ram in action at the Federal Court, but on the other side of the bench, representing and submitting on behalf of his client, Lingam.
Sri Ram had argued that the leave granted by the Federal Court in April last year to cite Lingam for contempt was fatally flawed.
He said this was because there was a breach of non-compliance of Order 52 Rule 1B of the Rules of the High Court 1980.
He said that rule required a notice to be served on an alleged contemnor to show-cause why he should not be punished.
“There is no material before the court to show that such a notice was served by the liquidators on Lingam,” said Sri Ram, adding that the obvious purpose of the rule was to provide the alleged contemnor to apply to the court to purge his contempt or to provide a satisfactory response that might be taken into account by the court that was moved for leave to issue contempt proceedings.
He also submitted that the leave granted to cite his client for contempt should be set aside as the liquidators failed to consult the attorney-general with the view to his instituting the contempt proceedings or failing to add him as a party.
Sri Ram said Article 145(3) of the Federal Constitution vested in the attorney-general the power to institute, conduct or discontinue a prosecution for any offence before any court, other than a Syariah Court, Native Court or a court martial.
“Having regard to the provisions of Article 145 (3), it is only the attorney-general who may institute contempt proceedings,” he said, adding that the fact the attorney-general was served with the application and that a senior federal counsel appeared and supported the application, was insufficient.
The panel also heard submissions from Lingam who represented former Kian Joo Can Factory Bhd (KJCF) group managing director Datuk See Teow Chuan and 11 others who are the majority contributories of Kian Joo Holdings and lawyer Datuk David Gurupatham, representing another 11 persons who are of the minority contributories of Kian Joo Holdings, lawyer T Gunaseelan for A S Thisinayagam and Tan Sri Cecil Abraham representing the liquidators, and senior federal counsel Noor Hisham Ismail for the attorney-general.
Abraham argued that the liquidators had the legal standing to commence the contempt proceedings, adding that it was unnecessary for the attorney-general to intervene.
He also said it was not required to serve a notice on an alleged contemnor.
On Jan 5, last year, the Federal Court’s three-man panel ruled in favour of the liquidators of KJH to proceed with the sale of 146.13 million of Kian Joo shares held by KJH to Can-One Bhd for RM241.12 million.
In 2009, the applicants filed an application at the High Court after Can-One won the tender to purchase the 32.9 per cent stake in KJCF.
They failed to stop Can-One from acquiring the shares at the High Court but the Court of Appeal reversed the decision and the case was brought to the Federal Court which ruled in favour of the liquidators.
They filed a notice of motion through Lingam, seeking the Federal Court to review the decision by its previous panel. They sought the Federal Court to set aside the decision of the previous Federal Court panel and order a re-hearing of the appeals before a new Federal Court panel.
In the notice of motion, they gave grounds for the review, claiming that the Federal Court’s 47-page judgement was substantially a reproduction of a written submission from Ooi and Ng, without any attribution to them.
They claimed that the court did not conduct an independent and impartial review of the evidence and the law, where it did not engage on its own, an analysis or reach its own findings.
On April 3, last year, the Federal Court granted leave to the liquidators to cite them for contempt of court.
On May 22, this year, the Federal Court dismissed their review application. – Bernama