The court established that the 'real danger of bias' is the appropriate standard for recusal applications, rejecting the lesser standard of possibility of bias.

A judge of the Federal Court, the Court of Appeal or a High Court, other than the Chief Justice of the Federal Court, or a Judicial Commissioner shall before exercising the functions of a judge take and subscribe the oath of office to solemnly swear that he or she will faithfully discharge the duties of that office to the best of his or her ability, and will bear true faith and allegiance to Malaysia, and will preserve and defend its Constitution. (arts 122AB (2), 124(2), and Sixth Schedule of the Federal Constitution )

Introduction

[1] In the midst of trial, with the plaintiff having called five witnesses and just as the plaintiff was about to close its case, the fourth defendant applied to have the learned trial Judge ("LTJ") recused ("Recusal Application"). The Recusal Application was dismissed with costs of RM 15,000.00 on 17 July 2023 and the trial continued to completion with oral closing submissions to be presented on 18 October 2023. The fourth defendant by the name of Everlasting Wealth Sdn Bhd (No. Syarikat: 489984-M) ("D4") has filed an appeal to the Court of Appeal against the dismissal of its Recusal Application, and these are the grounds for the decision made.

Background Facts

[2] This action filed on 26 June 2019 is principally for the specific performance of a sale and purchase agreement dated 9 March 2007 for a piece of property, and for damages to be assessed, interest thereon at 5% per annum from the date of the filing of the action until full realisation and costs.

[3] The crux of the defence and which is the main issue for trial, is that the full purchase price has [not] been paid.

[4] The property is a piece of vacant land described as Lot 16, Jalan Melor, The Mines Resort City-Southern Lake and held under issued document of title PN 76970 Lot 2536, Pekan Baru Sungai Besi, Daerah Petaling, Negeri Selangor ("the said Property").

[5] By a Consent Judgment made on 19 September 2019 recorded before Justice Ahmad Bin Bache, the first defendant is to remain as a nominal defendant but the second and third defendants (who are liquidators of the first defendant) ceased to be parties to the action upon their undertaking that if the plaintiff were to succeed in its action, they will so long as they remain as liquidators of the first defendant, execute whatever documents necessary to transfer the said Property under the sale and purchase agreement to the plaintiff. Thus, the main protagonists to the action are the plaintiff and D4.

[6] The action was set down for trial which commenced before the learned trial Judge ("LTJ"), Justice Su Tiang Joo on 7 April 2023 with three witnesses called. The trial was to be continued on 14 April 2023, 17 and 18 July 2023 with the plaintiff anticipating that it would be able to close its case after calling another two witnesses on 14 April 2023. Thereafter, D4 was to open its defence with two witnesses slotted to be called, one of whom was a subpoenaed witness, Tan Sri Dato' Sri Dr Oei Yang Yang @ Ng Yen Yen ("TS Ng Yen Yen").

[7] On the resumed date for trial on 14 April 2023, the plaintiff called what was to be its last two witnesses. However, learned counsel for the plaintiff informed the LTJ that he was only told in the morning of 14 April that D4 was not minded to call TS Ng Yen Yen. This caused learned counsel for the plaintiff to inform the Court that it would not close the plaintiff's case just yet. He wanted time to take instructions on whether the plaintiff will instead call TS Ng Yen Yen as its witness.

[8] The trial was then adjourned to be continued on the 17 and 18 July 2023 after both parties informed the LTJ that t