In an unprecedented legal action, a High Court judge was sued for a total of RM24.3 million for allegedly interfering in the enforcement of a court judgment three years ago while he was on leave.

Construction companies Indah Desa Saujana Corporation Sdn Bhd and Winner Place Sdn Bhd and their director Low Eng Cheong filed the suit at the Kuala Lumpur High Court (civil division) last Saturday and named Justice James Foong and the Malaysian government as defendants.

They had claimed that Foong had interfered in the enforcement of a seizure and sales writ which was issued against Public Bank Berhad on Nov 12, 2002 after the plaintiffs successfully obtained a default judgment amounting to RM14,362,312.00 against the bank about a month earlier.

Apart from demanding for the RM14.3 million which was awarded to them in the default judgment in 2002, the three are also seeking another RM10 million for aggravated and exemplary damages.

When contacted, the plaintiffs' lawyer Darshan Singh Khaira said that he is still awaiting for the court to issue the "sealed copies" of the suit to be served on the judge and the government.

This case could be a test case whether or not judges could be sued for a direction that is claimed to be made in bad intention as stated in the statement of claim. To date, no judge has been taken to court.

The protection of judges from civil action is stated under Section 14 of the Court of Judicature Act 1964.

The first clause of the provision states: "No judge or any other person acting judicially shall liable to be sued in any civil court for any act done or order to be done by him in the discharge of his judicial duties whether or not within the limits of his jurisdiction nor shall any order for cost be made against him provided that he at that time in good faith believe himself to have jurisdiction to do or order the act complained of"

'Malicious action'

In their statement of claim, the plaintiffs stated that after obtaining the writ to execute an order for seizure and sales, the bank issued a bankers' cheque amounting to RM14,362,312.00 on the name of " penolong pendaftar kanan" (senior assistant registrar) dated Nov 15, 2002 in "purported accord and settlement" of the writ of execution.

The bank refused to comply with the plaintiffs' request for the cheque to be issued directly to them and had instead contacted Foong - in Singapore then- who then directed the registrar in charge of the case, Mohammad Nordin Abdul Rauf, to allow and accept the payment into court.

They claimed the registrar - on the direction of Foong who was on leave then- also informed bailiffs Zainudin Ismail and Mohd Yusuf Jamaludin to stop execution despite protests from the plaintiffs.

They claimed that the bank subsequently stopped payment and the cheque drawn was returned to the bank.

They claimed that Foong - who is attached with the civil division - had acted as an agent, employee and/or at the request of the officers, solicitors or employees of the bank when he called the registrar.

It was obvious, they claimed, that Foong was allowing the bank to "play for time" and delay the encashment of the cheque.

They claimed that the judge must have known that the bank had never intended to honour the cheque which in law and in fact could not be stopped or revoked.

They claimed that Foong had wrongly interfered with the process of justice and execution and wrongly induced the employees and officers and agents of the government to accept the cheque when he had no business to do so.

They claimed that the acts had breached several parts of the Judges' Code of Ethics 1994, corruption laws including the Prevention of Corruption Act 1997 and the Emergency (Essential Powers) Ordinance 22 of 1970.

"The said acts (by the judge) were also contrary to Section 20 of the Court of Judicature Act 1964 whereby the first defendant was assigned to the Civil Division of the High Court and to deal with cases only assigned thereto and there was no direction or change of direction for him to deal with cases in the Commercial Division (where the plaintiff's case was filed)."

In their statement, it was also stated that in a letter dated March 16, 2004 one of the companies lodged a formal complaint against Foong to the chief justice who replied on May 14, 2004 that the matter was being investigated.

There has been no development since then, they claimed.

Describing Foong's acts as "wilful, malicious (intentional), malfeasance and misfeasance, mala fide", they said the judge had caused loss and damages to them.