KUALA LUMPUR (April 13): The Court of Appeal (CoA) has set aside an earlier High Court decision to dismiss Senior Minister Datuk Seri Mohamed Azmin Ali's application to strike out a suit where 10 Gombak voters were suing him for alleged deceit and breach of fiduciary duty.
This comes as the CoA allowed Mohamed Azmin's appeal on the matter on Wednesday (April 13).
In a unanimous decision, a three-member panel led by Justice Datuk Yaacob Md Sam said it found that there were appealable errors by the High Court and that the respondents' claim was "bound to fail".
"We find that the respondents' claim is obviously unsustainable. The action by respondents is bound to fail," he said, adding that there was no necessity for the matter to go to full trial.
He also added that with this, the earlier High Court decision is set aside.
Justices Datuk Lee Heng Cheong and Datuk Hashim Hamzah also sat on the panel.
The panel delivered their decision on Wednesday following submissions from both parties during proceedings via Zoom.
The panel added that as this was a matter of public interest, the court made no order as to cost.
Mohamed Azmin, who is also International Trade and Industry Minister, was represented by Nizamuddin Hamid and Nurul Najwa Zainuddin. While the respondents were represented by K Shanmuga, Kee Hui Yee, N Yohendra, Zarifah Zuhayra and Surendra Ananth.
Mohamed Azmin is appealing High Court Judge Datuk Akhtar Tahir's decision to dismiss the former's application to strike out the suit.
In delivering his decision in June last year, Justice Akhtar said there were triable issues in the matter. The trial was set to take place from June 7 to June 10 this year.
The suit was filed in November 2020 by 10 registered voters from the Gombak parliamentary constituency against Mohamed Azmin for alleged deceit and breach of fiduciary duty through the "Sheraton Move" that caused the Pakatan Harapan government to collapse in February 2020.
'Representations were under the banner of PH'
Mohamed Azmin's counsel Nizamuddin on Wednesday argued that the Gombak MPs made no personal representations as per the voters' statement of claim (SOC) but rather only made representations under "the banner of" Pakatan Harapan's manifesto.
Justice Yaacob also pointed out that it has been established that a political manifesto is not binding by law.
To this, Shanmuga agreed that a manifesto is not binding. However, he said the voters were not asking for the manifesto to be enforced or were only solely concerned with the manifesto. Rather, they were looking at the "combination of actions by Azmin".
"It is a combination of actions done by Azmin. First, he said he was standing to get rid of corrupt public officials. Then, he contributed to the collapse of the government causing his expulsion from his party and formed a coalition with the very people he said were corrupt," he said, highlighting the SOC.
"The key is not [the] manifesto but what [Mohamed] Azmin said was his commitment to the manifesto," added Shanmuga.
On Feb 24, 2020, Mohamed Azmin, who was then PKR deputy president, resigned from the party after it announced that it would be sacking him and others over the 'Sheraton Move'. He later joined Parti Pribumi Bersatu Malaysia (Bersatu).
Grey area over MP's freedom of association
Nizamuddin also argued that the matter would also infringe upon Mohamed Azmin's freedom of association as per Article 10(1)(c) of the Federal Constitution.
"It is his right to be associated in PKR, to be disassociated from PKR and later [to be associated] in Bersatu," he said.
Shanmuga said the Bukit Antarabangsa assemblyman's freedom of association was not disputed, however there was a grey area surrounding his individual freedom and his fiduciary duties as an MP.
"But what is the interplay between his individual and fiduciary duties as MP is what we say ought to be considered at trial," he said, adding that this was a novel question.
He also added that the voters were seeking a declaration that Mohamed Azmin had breached his fiduciary duty, not to compel him to be removed from his parliamentary or state seat.
Nizamuddin had also submitted that it cannot be established if the voters had voted for Mohamed Azmin or if their ballots were not categorised as spoiled votes.
He contended that as per election laws, if the ballot papers have been destroyed, mere oral evidence was insufficient.
To this Shanmuga argued that oral evidence was permissible as per the Evidence Act 1950 in the event that original contents had been destroyed.
Amongst other things, he argued that it was for the trial judge to assess the voters' oral evidence if they indeed voted for Mohamed Azmin.
When contacted, counsel Yohendra said he was still awaiting instructions from his clients on whether to appeal this decision.