CASE OF THE WEEK

HEADNOTES

During the case management, the trial judge, upon being informed by the defendant of the filing of an application for recusal of the judge, suggested to the defendant that an application for recusal was unnecessary and informed the defendant to instead meet with the Chief Judge of Malaya (`the CJM') or the managing judge and request for the file to be transferred to another judge. The judge then went on to fix a trial date notwithstanding that the defendant had filed an application to strike out the plaintiff's action for want of prosecution. The defendant however chose to file the application for recusal on the grounds that, inter alia: (i) the winding-up petition against Comsa Properties Sdn Bhd, which had nexus to the plaintiff, was not allowed; and (ii) the judgment concluded that the petition was oppressive and vindictive, tantamount to an abuse of process of the court and filed with the view to paralyse Comsa Properties Sdn Bhd. It was the defendant's submission that there was no need to establish actual biasness and it is sufficient if there appears to be a real danger of bias and further, expressed concern on the trial dates being fixed after the application for recusal and striking out and prior to the commencement of the case management preparations. The plaintiff on the other hand relied on the case of Mohamed Ezam Mohd Nor & Ors v. Ketua Polis Negara which laid down the "real danger of bias" test and further stated that the judge's decision in the winding-up petition was taken out of context and did not satisfy the "real danger of bias" test.

Held (dismissing the application):

(1) With regards to the fixing of the trial dates, it was not for the defendant or his advocate or counsel to dictate how a trial judge should manage the file in the administration of justice. (para 9)

(2) The application for recusal would be more appropriate if it was informally dealt with through the office of the CJM and/or the managing judge as the distribution of business among the judges of the High Court is at the discretion of the Chief Judge pursuant to s. 20 of the Courts of Judicature Act 1964. Further, under the "fast track system", the distribution of work is monitored by the managing judge at the direction of the CJM. The judge is also bound by s. 11 of the Judges' Code of Ethics 2009. (para 11)

(3) A recusal application before a judge is most inappropriate and the applicant may unnecessarily be exposed to contempt proceedings if it was found to have been made in a cavalier manner and in bad faith and/or undermine the administration of justice. (para 11)

(4) The central complaint of the defendant was in relation to words such as "oppressive", "abuse of process" etc. in the judgment relating to the winding-up petition. Although a judgment should be objective, rational and temperate in language, a judge is not restrained from critisising in his judgment, matters relevant to the conduct and merits of the case. It follows that the judge's finding made according to law in a particular suit cannot be a ground for a recusal application in other suits. To justify disqualification or recusal, the judge's biasness usually must be personal or based on some extrajudicial reason. (para 11)

(5) Further, the "real danger of bias" test imposes a high threshold for the applicant to satisfy. It would be a gross dereliction of duty for a judge to disqualify himself when there is no real danger of bias in hearing the case. Further, when the application for recusal was made with no appropriate grounds or prospect of success such an application must be treated as an attempt to interfere with the administration of justice. In such instance, where appropriate, once the suit had been disposed of the court should proceed to issue show cause letter against the relevant person or persons who attempted to place the administration of justice to disrepute and failure of the judge or the judiciary to protect the administration of justice will also stand as dereliction of duty and omission to act pursuant to art. 126 of the Federal Constitution. In the circumstances, the application was held to be mischievous and an abuse of process of the court. (para 11)

Case(s) referred to:

Charles Forte Investment Ltd v. Amanda [1963] 1 Ch D 240 (refd)

Che Minah Remeli v. Pentadbir Tanah, Pejabat Tanah Besut, Terengganu & Ors [2008] 3 CLJ 653 CA (refd)

Chip Chong Sawmill Co Sdn Bhd & Ors v. Chai Khium Fui [1978] 1 LNS 28 FC (refd)

Dato' Tan Heng Chew v. Tan Kim Hor & Another Appeal [2006] 1 CLJ 577 FC (refd)

Ismail Zakaria v. PP [2009] 9 CLJ 125 HC (refd)

Lee Kuan Yew v. Tang Liang Hong & Anor and other actions [1997] 2 SLR 233 (refd)

Locabail (UK) Ltd v. Bayfield Properties Ltd and Another; Timmins v. Gormley and Others [2000] QB 451 (refd)

Malaysian Assurance Alliance Berhad v. Comsa Properties Sdn Bhd [2010] 1 LNS 977 HC (refd)

Menteri Hal Ehwal Dalam Negeri v. Raja Petra Raja Kamarudin & Another Appeal [2009] 3 CLJ 513 FC (refd)

Metramac Corporation Sdn Bhd v. Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (Interveners) [2007] 4 CLJ 725 FC (refd)

Mohamed Ezam Mohd Nor & Ors v. Ketua Polis Negara [2001] 4 CLJ 701 FC (refd)

Mohamad Ezam Mohd Nor & Ors v. Inspector General of Police [2001] 3 CLJ 198 HC (foll)

R v. Inner West London Coroner, ex parte Dallaglio and another [1994] 4 All ER 139 (refd)

R v. Metropolitan Police Commissioner ex-parte Blackburn (No. 2) [1968] 2 QB 150 (refd)

Teh Wee Khiang & Ors v. Teh Wee Chye & Ors [2010] 2 CLJ 916 HC (refd)

Legislation referred to:

Courts of Judicature Act 1964, s. 20

Federal Constitution, art. 126

Judges' Code of Ethics 2009, s. 11

Rules of the High Court 1980, O. 34

Other source(s) referred to:

Cyrus Das and K Chandra, Universal Law Publishing, Judges and Judicial Accountability, p 83

Law of Contempt of Court and of Legislature, Justice Tek Chand, pp 3, 4

Recent Developments in Singapore Contract Law _ The Search for Principle, [2012] 2 MLJ cxix

For the plaintiff - Ambiga (Mohd Rizal with her); M/s Bahari & Bahari

For the defendant - R Vinayaga (Vijay Raj with him); M/s Skrine

Reported by S Barathi