(An earlier version of this article wrongly identified a number of parties as participating in the application to recuse the judicial commissioner from hearing the case. The error is regretted.)
KUALA LUMPUR (March 9): The Kuala Lumpur High Court has today dismissed an application made by some of the defendants to recuse Judicial Commissioner (JC) Ong Chee Kwan from presiding over the RM19.88 million civil suit by Deleum Bhd's 60%-owned unit Deleum Primera Sdn Bhd (DPSB) against its senior executives, Petronas Carigali Sdn Bhd executives and its own sub-contractors, over an alleged scheme to swindle the company.
DPSB has claimed that the scheme was cooked up to defraud the company in relation to multiple maintenance and services contracts between the Petronas unit and DPSB.
Six of the 10 defendants named in the suit filed an application to recuse the judge on Dec 12, 2020, on grounds that Ong posed a real danger of bias by seemingly helping the plaintiff to correct the latter's applications for an ex-parte delivery up order and Mareva injunction – which freezes the assets of defendants, pending the outcome of a legal case – at a previous hearing.
The applicants further alleged that the plaintiff has dragged the judge into the arena of dispute to cover up the weakness of their case by using the JC’s name in replying to the preliminary issues raised by the defendants.
"Our application to recuse [Ong] on grounds raised in the Application and Affidavit filed thereof, was dismissed with each of the respective counsels ordered to pay costs of RM15,000 each personally to the Plaintiff," lawyer Haniff Kathri Abdulla, who represented four of the defendants, told theedgemarkets.com when contacted.
DPSB's lawyer Datuk Lim Chee Wee also confirmed the dismissal of the recusal application and said it did not satisfy the high threshold to prove real danger of bias.
"At the outset, we say that this question must be answered in the negative. There is no substantive ground or cogent evidence to suggest any real danger of bias on the part of the learned JC," his written submission read.
Lim added that the next hearing date will be on May 5 for setting aside the ex-parte delivery up order, Mareva injunction and inter partes injunction.
The applicants who filed for the recusal are:
Mazrin Ramli
Khairulazmi Mohamad Karudin
Noor Azlina Zakaria
Muhammad Hafiz Abd Aziz
Synergy Spectacular Sdn Bhd
Hydra Admiral Sdn Bhd
When filing the suit in November 2020, DPSB had also applied for an Anton Piller order, together with the Mareva injunction. The Anton Piller order will enable DPSB to seek further evidence in respect of the purported illegal scheme.
The company also lodged a report to the Malaysian Anti-Corruption Commission (MACC) over the alleged illegal scheme on Nov 25.
So far, two senior executives working for DPSB have been interviewed by MACC in its investigations into the scheme. It is understood that the MACC investigation also covers the potential involvement of Deleum's top management and executives of both DPSB and Petronas Carigali.
In a Dec 14 report, The Edge Weekly wrote, citing sources, that the MACC was following closely, the money trail from Petronas Carigali through DPSB and its sub-contractors, and into Petronas Carigali executives, to understand the modus operandi involved in the illegal scheme, as it suspects it is a wider scheme involving the Petronas subsidiary and its main contractors through their sub-contractors.
It was understood that Petronas Carigali has taken action against its staff, based on a message from Petronas president and CEO Tengku Muhammad Taufik Tengku Aziz, who noted that an internal probe is being conducted.
DPSB, however, had denied any involvement of the company's top management in the scheme. It also denied any alleged understating of profits for the company’s financial year ended Dec 31, 2019 (FY19), and any other allegations of false accounting.