PUTRAJAYA (June 19): The second disciplinary proceeding against Deloitte auditor, Ng Yee Hong, for possible professional misconduct over his role in signing off on the 1Malaysia Development Bhd audit reports ending March 31, 2013 and March 31, 2014 will proceed.

The second proceeding follows a complaint from former Damansara Member of Parliament Tony Pua against Ng over his role in preparing the audit report.

The Federal Court on Wednesday dismissed Ng’s leave request to revisit the merits of his appeal to be heard with regards to the second disciplinary committee proceeding by the Malaysian Institute of Accountants (MIA) which had been put on hold since 2019.

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In civil proceedings, leave (permission) has to be gained first before the merits of an appeal can heard.

A three-member bench, led by Federal Court judge Datuk Zabariah Mohd Yusoff, refused to grant leave to Ng to have five questions of law to be heard on its merits.

In the unanimous decision, Zabariah said the questions posed before the apex court did not fulfil the threshold under Section 96 of the Courts of Judicature Act.

“This court directs the second (disciplinary) proceeding to proceed, and we move on from there.

“The motion is dismissed with no order as to costs,” said Zabariah, who sat with Federal Court judges Datuk Seri Hasnah Mohamed Hashim and Datuk Vazeer Alam Mydin Meera.

Ng’s counsel, Datuk Malik Imtiaz Sarwar, had argued before the bench that the second disciplinary proceeding was res judicata as the disciplinary committee (DC) had already found his client guilty in the first proceedings with regards to the 2014 1MDB audit report following a complaint lodged by Andrew Anand Solomon Devasahayam.

Ng was subsequently suspended for two years and fined RM5,000 for his action in signing or sanctioning the 2014 1MDB audit report.

Res judicata is a legal term meaning a matter that had been adjudicated by a competent court and hence may not be pursued further.

Imtiaz said the second proceeding, which had been stayed since 2019 after Pua had testified, should not be held as action had already been taken against his client.

Imtiaz further argued that the Court of Appeal decision to reinstate the second proceeding did not address the issue of res judicata.

However, MIA counsel Porres Royan replied that it was Ng who had in the first place asked for the two proceedings to be separated.

“It was the applicant (Ng) who sought to defer the second proceeding. They (Ng) had asked for the deferment, whereas both sets of charges were presented at the same time,” he added.

The DC, represented by John Matthew, argued that the second proceeding concerns a complaint lodged by Pua over the 1MDB March 31, 2013, and March 31, 2014, audit reports, which was different from the first proceeding.

Hence, he argued that the principle of res judicata did not apply as the matters before the two proceedings are on two different charges.

On Jan 12 this year, the Court of Appeal reinstated the hearing of Ng’s second proceeding after the KL High Court had allowed Ng’s judicial review to quash the second hearing.

Court of Appeal judge Datuk Azizah Nawawi said the charges levelled against Ng by Pua are not identical or the same as an earlier one lodged by Devasahayam, the first complainant.

“The present case (Pua’s complaint) is different from Devasahayam’s case, as they were proffered at the same time and would have been heard together if Ng did not object to the consolidation.

“Ng had even requested for Pua’s complaint to be deferred after the hearing of Devasahayam’s complaint. Therefore, there is no issue of the disciplinary committee raising an identical complaint...Ng himself had taken the position that Pua’s complaint is not the same as Devasahayam, that they are not identical,” she said.

Azizah said since Ng had conceded that the two complaints are not identical, the issue of res judicata raised by Ng’s lawyers did not arise.

Prior to this, the High Court had on May 11, 2022, allowed Ng’s application to strike out Pua’s complaint dated Nov 5, 2015, to bar the DC from hearing Pua’s complaint, resulting in this appeal.

Following the two complaints lodged, the investigation committee had on Sept 28, 2017, issued separate reports and proposed three distinct charges to be proffered against Ng on Devasahayam’s complaint, and another three charges following Pua’s complaint. 

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