(Updated)

High Court overturns MIA's decision to not strike out Tony Pua's complaint against Deloitte partner

High Court overturns MIA's decision to not strike out Tony Pua's complaint against Deloitte partner. (The Edge file photo)

High Court overturns MIA's decision to not strike out Tony Pua's complaint against Deloitte partner. (The Edge file photo)

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KUALA LUMPUR (April 5): The High Court here on Tuesday (April 5) overturned the Malaysian Institute of Accountants (MIA) Disciplinary Committee's (DC) decision to not strike out a complaint lodged by Damansara member of parliament Tony Pua against Deloitte PLT partner Ng Yee Hong.

Justice Datuk Wan Ahmad Farid Wan Salleh, during proceedings conducted via Zoom, said the DC's decision was "tainted with procedural impropriety" and ordered the decision to be quashed, with no order as to costs.

"The impugned decision is tainted with procedural impropriety which is amenable to judicial review. In making the impugned decision, DC had failed to act in a manner that is both independent and autonomous.

"The impugned decision is also invalid by reason of illegality in that the DC had failed to give effect to the law that regulates the litigation making power," he said.

Pua filed a complaint with the MIA on May 25, 2015, pertaining to the audit that Ng signed off in relation to the financial accounts of 1Malaysia Development Bhd (1MDB) between 2013 and 2014.

However, prior to Pua's complaint, a preceding complaint was lodged with the MIA by Andrew Anand Solomon Devasahayam on March 31, 2015, which the DC decided upon, while Pua's complaint is understood to be ongoing.

Ng sought the judicial review against the DC's decision for not striking out Pua's complaint based on the principle of res judicata — a legal doctrine meant to bar the relitigation or duplicate hearings between the same parties.

In delivering this decision, Justice Datuk Wan Ahmad Farid noted that the remedy for judicial reviews does not concern the merits of the decision in question, but rather primarily a review of the decision-making process.

The High Court judge said that the DC had failed to act in a manner that was both "independent and autonomous" as it sought the MIA Investigation Committee's (IC) legal opinion pertaining to the dismissal application of Pua's complaint.

In turn, he added that the DC's decision to not dismiss Pua's complaint was also invalid by reason of illegality, as the committee had failed to give effect to the law that regulates its litigation making power, namely the MIA Rules 2001.

"By referring the dismissal application to the IC, DC had failed to observe the procedural rules that are expressly laid down in the litigation instrument, expressly the MIA Rules, by which its jurisdiction is conferred.

"To begin with, the dismissal application was made to the DC, it had to make that decision independently and autonomously. There is nothing in the MIA Rules which allows DC to refer to the IC for a legal opinion or otherwise on the matter that is to be decided exclusively by the DC," he said.

After Justice Datuk Wan Ahmad Farid delivered his decision, Ng's counsel Datuk Malik Imtiaz Sarwar asked the High Court judge whether there would be a mandamus or consequential order to compel DC to strike out Pua's complaint.

The High Court judge clarified that this was a mandamus or consequential order and that DC was compelled by the court to dismiss the complaint.

The DC's counsel, John Matthews, said that the DC would appeal the High Court's decision, and would apply for a stay on the mandamus order pending the appeal.

"Bearing in mind the decision Yang Arif (YA) has made and the various grounds that YA has given just now, the DC will have to appeal because this matter has consequences beyond just this matter," he said.

In response, Malik said that he had no qualms with an interim stay to be granted for DC to apply a formal application for a stay on the mandamus order.

Justice Datuk Wan Ahmad Farid granted two weeks for the stay application to be filed and fixed case management for April 21.

Deloitte took over the audit of 1MDB's accounts from KPMG in December 2013 — after KPMG was reportedly dismissed by the company following a difference in opinion on the fair value of 1MDB's investment in Bridge Global SPC through Brazen Sky Ltd.

Deloitte verified the accounts for the 2013 and 2014 financial years with an unqualified opinion without any qualification or emphasis on the matter. It quit as 1MDB's auditor in 2016.

1MDB subsequently said the audited reports issued by Deloitte in connection with its 2013 and 2014 financial statements should no longer be relied upon.

Lam Jian Wyn