Landowner secures appeal to call four witnesses in Penang 1MDB suit on Air Itam estate

• The four are Choo Kwang Wah and Choo Kwang Bin, who are children of the late Chor Phaik Sim, the other owner of the estate, and Datuk Seri Th’ng Boon Chye and Wong Kim Fong of the Kek Lok Si temple. Tan and Chor have undivided shares in the estate.

PUTRAJAYA (May 24): The Court of Appeal on Wednesday (May 24) has allowed the appeals of 68-year-old landowner Tan Jiak Chye to subpoena four people to testify in his RM330 million suit against 1Malaysia Development Bhd (1MDB) and 1MDB’s counterclaim of RM6 million on him in relation to the Air Itam estate.

The four are Choo Kwang Wah and Choo Kwang Bin, who are children of the late Chor Phaik Sim, the other owner of the estate, and Datuk Seri Th’ng Boon Chye and Wong Kim Fong of the Kek Lok Si temple. Tan and Chor have undivided shares in the estate.

A three-member bench led by Judge Datuk Azizah Nawawi allowed Tan’s appeal to call them as Tan’s witnesses and set aside the Penang High Court decision last year.

Sitting with her were Judges Datuk Che Mohd Ruzima Ghazali and Datuk Wong Kian Kheong.

Wong, who read the broad grounds of the unanimous decision ruled the Penang High Court judicial commissioner had erred in setting aside the subpoena application on the four as the appellate court found they could be relevant to the case at hand.

“The plaintiff (Tan) is entitled to subpoena them, and it is not the court to determine how the parties would conduct its case. Following that the appeals are allowed,” Wong said.

The bench also ordered Kwang Wah, Kwang Bin, Boon Chye and Kim Fong to pay total legal costs of RM10,000 to Tan.

Tan’s counsel, M Thayalan, had told the bench that the four witnesses are vital in its case to verify the consent judgement in 2018, reached with regards to the said shares related to the land as Kwang Wah and Kwang Bin along with Boon Chye and Kim Fong are part of the judgement with regards to the said land that had seen a deed of settlement be procured.

Thayalan said it is their case that it can summon any witnesses which are in fact relevant to the issue.

“We are willing to take the risk as it was either we (Tan) or 1MDB decide to call them. They know something relevant and material to the case (regarding the land deal),” he said.

Both Datuk K Kirubakaran and Muhammad Iman Johar representing the four of them disagreed with Thayalan in telling the five letters with the landowners that were dated in 2007, were not the subject matter of the dispute and does not concern them as it was prior to Tan’s dispute with 1MDB.

Iman further submitted that the Choo brothers (Kwang Wah and Kwang Bin) were not privy to Tan’s dealings with 1MDB and hence, they should not be called as a witness.

Thayalan in reply said the trial had started in February and would resume in September, and Tan should be allowed to conduct his case and prove their claim properly as all four were signatories in the consent judgement.

Background to the suit

The Penang High Court had on April 28 last year dismissed Tan’s application to show the relevance in calling the four of them as witnesses in the civil suit.

1MDB filed the suit in 2019, seeking a return of RM6 million which it claimed for breach of agreement involving the 60 plots of 94.7ha Air Itam land.

The company made an offer to Tan to exchange various plots of land in the Air Itam estate which would see Tan and other holders to become the registered proprietors of 49 acres (19.6ha) of the Air Itam estate and 1MDB occupying the rest.

With 1MDB or its subsidiary company becoming the registered proprietor of the other land, it would then discontinue all current lawsuits faced by Tan and other holders in relation to the land and following that Tan would be paid RM6 million as fees, costs, damages that he and other holders incurred.

Based on the offer made, 1MDB and Tan agreed to a portion of the land in the Air Itam estate to the Kek Lok Si temple.

This proposal was accepted on May 3, 2013, where 1MDB paid RM6 million to Tan.

1MDB was said to have failed to comply with the agreement of being able to discontinue all current lawsuits resulting in losses and damages to have suffered by Tan and this impeded the obligation for him to fulfil the consent judgment entered in between the temple.

Hence while 1MDB is seeking a return of RM6 million, Tan is seeking damages and losses he suffered following the company’s failure to comply with the agreement.

1MDB initially filed the suit in KL, but on Tan’s application the suit is being heard in Penang with Tan’s suit there.