VK Lingam is questioning the authenticity of a video clip tendered as evidence in the disciplinary committee hearing which culminated in the Advocates and Solicitors Disciplinary Board's decision to strike the senior lawyer off the roll for misconduct.
This was relayed to the Kuala Lumpur High Court today by Lingam's counsel R Thayalan.
The clip's authenticity is being questioned since the original recording was not produced during the disciplinary committee hearing, and because the person who recorded it, former PKR MP Loh Gwo Burne, had admitted that the CD tendered to the committee hearing was not his.
"The maker of the CD, which was downloaded from the Malaysiakini website, was not called, and the transcript was not produced during the disciplinary committee hearing.
"We also sent the CD for testing with our experts and the experts found there were other files on the CD.
"The committee relied on the contents of the clip and we say there is a possibility of the video being tampered with, since the purported recording was done in 2001, and the clip only surfaced in 2007.
“Hence, there is a break in the chain of evidence when the video was submitted by (former Bar Council chairperson) Ambiga Sreenevasan to the committee," said Thayalan.
The lawyer was submitting in seeking a review of the board's decision against his client.
Lingam filed an originating motion against the Malaysian Bar on Dec 15, 2015 to challenge the Nov 6 decision by the board. He claimed that the disciplinary committee's report cannot be sustained in law and facts and hence it cannot be affirmed by the board.
He was barred from practicing following an allegation of misconduct to conspire or interfere in judicial appointments.
Thayalan argued that the burden of proof which should have been adopted by the board was “beyond reasonable doubt” and claimed that this was not adhered to.
Furthermore, the lawyer also questioned the board's decision to strike Lingam off the roll when the disciplinary committee had recommended other punishments.
He claimed that the committee had not addressed the standard of proof to be applied on the charge of misconduct, that is, to prove beyond reasonable doubt, and the committee failed to apply this standard of proof when arriving at its finding.
He further alleged that the committee made no finding of conspiracy, but when the matter was brought to the board it reasserted the finding on the charge of conspiracy.
'Looks like me, sounds like me'
The Malaysian Bar's lawyer Razlan Hadri Zulkifli reminded the court that this case was an appeal of a fact-finding mission by a tribunal.
He also said there were two witnesses – Gwo Burne and his father Loh Mui Fah (photo) – who testified that the incident took place and the person on the other line speaking to Lingam was Ahmad Fairuz Sheikh Abdul Halim who was then the Chief Judge of Malaya.
"It was what Lingam had said that caused him to be in trouble. The disciplinary committee accepted the evidence by Gwo Burne and Mui Fah as they were in Lingam's house (during the telephone conversation with Ahmad Fairuz)," he said.
Razlan said the two witnesses were also asked about the video and both verified that the recording took place at Lingam's house and the taped conversation did happen.
He pointed out that Lingam, when cross-examined, had described the person in the video as someone who "looks like him but denied it was him."
"He further said 'it looks like and sounds like me'. Lingam also admitted that the two (Gwo Burne and his father) were at his house but could not remember when (the exact date),” he added.
At one point, Justice Kamaludin Md Said, who is presiding over the case, admitted that what was cited by Lingam in the recording "is now famous."
"Gwo Burne admitted he recorded it. What happened is there was a tribunal and there was direct evidence through the video clip and its contents which had been verified," he said.
Another lawyer for the Bar, Kwan Will Sen, said the two witnesses – Gwo Burne and his father – admitted that the recording took place at Lingam's residence when they watched the video clip.
"The two also confirmed that Lingam was speaking to the then Chief Judge of Malaya," he said suggesting that this showed the corroboration of evidence.
Razlan, meanwhile, noted that the expert witness hired by Lingam had testified in the tribunal that the video clip showed no signs of being tampered.
He also said the board could differ with regard to the punishment meted out from what was recommended by the committee and there had been similar cases in the past.
Therefore, Razlan said the High Court should uphold the board's decision.
Justice Kamaludin said he would deliver his decision on April 2.
The most famous quote from the video in which the appointment of top judges deemed as friendly to BN was discussed was “correct, correct, correct”. -Mkini
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