By Hafiz Yatim
Malaysiakini
Feb 27, 2015
In yet another expose of serious transgressions committed by the Malaysian judiciary, it has now now alleged that former Lord president and Chief Justice Eusoff Chin tried to influence a Court of Appeal judge who was about to hear the appeal of the controversial Ayer Molek Rubber Company vs Insas Bhd case in 1995.
The subversion has been alleged by a now retired Court of Appeal judge who made the claims in an in-house publication of the Malaysian judiciary last year to mark the Court of Appeal’s 20th anniversary.
Former Justice KC Vohrah – who sat on the panel hearing the Ayer Molek appeal – wrote in his article that one of the judges of the three-memer panel was asked to meet Eusoff.
Besides Vohrah – who was then a High Court judge co-opted to sit at the Court of Appeal – the other judges who sat for the case were Court of Appeal judges NH Chan and Siti Norma Yaakob, the latter who later rose to become the first female Chief Judge of Malaya.
Vohrah alleged in his article – titled – ‘In the Court of Appeal, during the winds of change’ that Eusoff called the judge into to his chambers before the appeal was heard and when the judge entered, the CJ pointed to a pile of files on his table.
‘He (Eusoff) said the papers were related to the Ayer Molek case and he (the CJ) indicated that the appeal had no merit,’ claimed Vohrah.
Vohrah, however, did not name who was the judge who met Eusoff. His startling article appeared in the booklet Court of Appeal, Malaysia, 1994-2014 – 20th anniversary which was published last year.
In the Ayer Molek case, Insas was represented by the well-known VK Lingam while Ayer Molek was represented Loh Siew Cheang. Lingam was later implicated over the infamous video clip case and was also caught with Eusoff holidaying together in New Zealand.
A royal commission of inquiry formed to investigate into the video clip allegations had recommended action be taken against Lingam and Eusoff and five others including former former premier Dr Mahathir Mohamad.
History of Ayer Molek vs Insas
In explaining the Ayer Molek case, Vohrah – now a consultant at Lee, Hishammuddin, Allen and Gledhill – wrote that the case involved the grant of an ex-parte order to compel Ayer Molek to effect the transfer of 540,000 ordinary 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.
On April 12, 1995, Ayer Molek filed an application to set aside the ex-parte mandatory order of April 10, 1995. 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 ex-parte 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 at the Court of Appeal. On the same day, they filed a motion for a stay of the ex-parte order pending their appeal.
At the Court of Appeal hearing, it was abundantly clear (Vohrah wrote) that grave injustices had been perpetrated in the case at the High Court level. The appellate court granted an interim order that pending the disposal of the appeal, the respondents (Ayer Molek) were restrained from exercising any rights including disposing of the shares.
Vohrah, Chan and Siti Norma wrote separate judgments where Chan wrote on the abuse of the process of the High Court while Siti Norma wrote on the fact that the proceedings were filed in the Special and Appellate Powers Division of the High Court whereas it should have been in the Commercial Division.
‘I wrote on the company law aspects of the case involving the transfer of shares,’ Vohrah said in his damning article.
`Something rotten in the state of Denmark’
Chan, Vohrah remembers, skilfully melded their three views and his judgment stated unequivocally that the case was about an injustice that had been perpetrated by a court of law.
‘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 his judgment.
The High Court case was heard when then the court was housed in Wisma Denmark or Denmark House in Kuala Lumpur and in his judgment, Chan quoted
Shakespeare’s Hamlet in saying that, ‘Something is rotten in the state of Denmark’.
The Court of Appeal granted the stay order on July 26, 1995 and written grounds were given five days later.
Vohrah wrote: ‘Swift as an arrow a stay application on appeal against that decision was filed on July 27, 1995. The application and appeal were
heard at the Federal Court on August 1, 1995 before a three-member bench comprising Eusoff, a Court of Appeal judge and a High Court judge. The written grounds was provided 12 days later which set aside the Court of Appeal decision’.
The former judge noted that the Malaysian Bar was aghast at the decision made by the Federal Court and issued a strong statement against it while
saying the panel headed by Eusoff had been illegally constituted.
Eleven years after, the retired judge noted the Bar’s views was proven right following a RM100 million defamation suit brought by Lingam against
Euro Money Publications over an article titled ‘Malaysian justice on trial’ which was published in the International Commercial Litigation
magazine.
Justice Hishamudin enters
The case came up before Justice Mohamad Hishamudin Mohd Yunus,whom Malaysiakini highlighted earlier this week for being sidelined for elevation to the Federal Court despite being the most senior judge at the Court of Appeal.
While Lingam submitted that the Court of Appeal judgment in the Ayer Molek case had been expunged, Justice Hishamudin stood his ground saying the Federal Court panel by Eusoff was not legally constituted as it comprised only ‘two legally competent judges, namely, Eusoff and a Court of
Appeal Judge. The third judge of the panel, Pajan Singh Gill, was not legally competent to sit on that bench as he was only a High Court judge then’.
‘Justice Hishamudin ruled that the judgment of the Court of Appeal by Chan, Siti Norma and Vohrah in in the Ayer Molek case is still wholly intact and is still a valid and binding judgment and I am entitled, indeed I am duty bound, to take cognisance of the judgment in deciding on Lingam’s claim in this action,’ Vohrah wrote.
Eventually, Lingam’s suit was dismissed by Justice Hishamudin.
Eusoff Chin also presided in the controversial Federal Court land case of Adorna Properties Sdn Bhd vs Boonsom Boonyanit in 2000 in Penang where his judgment created an uproar for recognising that land deals done through fraudulent means were legal.
This decision was eventually corrected by then Chief Justice Zaki Azmi in another land matter in 2010 in the case Tan Ying Hong vs Tan Sian San, Cini Timber Industries Sdn Bhd and United Malayan Banking Corporation Bhd.
The end?
As a footnote, despite the royal commission of inquiry in recommending action against Lingam and Eusoff, none has been taken till today.
Nevertheless, Lingam is facing contempt proceedings in the Kian Joo Can Company matter.