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2014 MarsdenLR 2030

HIGH COURT MALAYA KUALA LUMPUR
PEMBINAAN BLT SDN BHD – Appellant
Versus
DEBESSA DEVELOPMENT SDN BHD (ENCL 11) – Respondent
[Civil Suit No: 24C(ARB)-8-06/2014]



A judge's recusal based on bias requires a demonstrated 'real danger of bias', not mere affiliations; interests must be specifically identified.

Headnote:(A) Law on Recusal - The test for a judge's recusal based on bias in Malaysia is the 'real danger of bias' test, as outlined in R v. Gough [1993] 1 AC 646 and reiterated in Dato Tan Heng Cheow v. Tan Kim Hor [2006] 1 MLRA 89; issues of affiliation must demonstrate actual conflict. (Paras 1, 9, 17, 39)

(B) Conflict of Interest - Mere affiliation does not suffice for recusal; specific interests or conflicts must be articulated and demonstrated. (Paras 21, 36)

Facts of the case:
The Judge was asked to recuse herself due to her daughter's employment with the solicitors representing the Defendant, claiming potential bias and conflict of interest. The Plaintiff asserted that this relationship would affect the fairness of proceedings.

Findings of Court:
The application for recusal lacked sufficient grounds; the facts presented did not demonstrate a real danger of bias.

Issues: The primary issue was whether the relationship between the Judge and Defendant's counsel constituted a sufficient basis for recusal.

Ratio Decidendi: The Court found that the Plaintiffs failed to articulate any specific interests that would lead to a conflict; general affiliations do not meet the threshold for recusal.

Result: Application dismissed without costs.

Table of Content
1. application for recusal due to potential bias. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8)
2. test for bias and legal grounds for recusal. (Para 9 , 10 , 11 , 12 , 13 , 14)
3. observations on bias and legal standing. (Para 15 , 16 , 17 , 18)
4. lack of sufficient grounds for recusal. (Para 19 , 20 , 21 , 22 , 23)

[1] By encl 11, the Plaintiff is applying that I recuse myself from hearing and/or determining its application to set aside the Final Award dated 31 March 2014 and/or any related application. The grounds for the application are found in the affidavit of one Mohammed Redza bin Mohd Yusof, the Managing Director of the Plaintiff.

[2] Prior to the first case management before me on 28 August 2014, the parties were informed by my Deputy Registrar that my daughter was, at that time, a pupil in chambers of Messrs Skrine, the solicitors handling this matter on behalf of the Defendant. The parties were requested to inform me as to whether there were any objections to my hearing the matter during case management on 28 August 2014.

[3] Upon taking instructions pursuant to the disclosure, the Plaintiffs solicitors informed me on 28 August 2014 that he had instructions to request that the matter be heard before another Judge. The parties were then directed to address the Court on the issue at the next date on 4 September 2014 as the parties were not prepared to address the matter of recusal.

[4] On 4 September 2014, the Plaintiffs solicitors informed me that Messrs Skrine had disclosed in their skeletal submissions that the counsel for the Defendant, Mr Khoo Guan Huat was the pupil master of my daughter and that my daughter has now been employed by Messrs Skrine under the supervision of Mr Khoo. A formal application as seen in encl 11 was then filed.

[5] In his affidavit filed in support, Mohammed Redza bin Mohd Yusof went on to aver that "based on the circumstances, I have been advised and verily believe that there are strong and cogent grounds in support of the Plaintiffs application to recuse the Judge. This reasoning is premised on the ground that there is an affiliation and/or relationship between the Learned Judge and the Defendants solicitors. This affiliation and/or relationship is further compounded by the fact that the Defendants counsel, Mr Khoo Guan Huat, was the pupil master of the Learned Judges daughter and now her supervisor at Messrs Skrine."

[6] He also averred that "In light of the above, I verily believe that the Learned Judge is in a position of conflict of interest and/or there is a real danger of bias so as to prevent the Learned Judge from (1) hearing and/or determining this matter from the very outset; and (2) continuing to hear and/or to adjudicate the matter. He added that it was his belief that "it is in the interests of justice and to prevent allegations of breach of natural justice or misconduct being cast over the judicial system that the Learned Judge ought to recuse herself from hearing this matter"; and "...that it was imperative that for the integrity of the judicial system to be preserved that justice not only be done but also seen to be done. Hence the filing of the present application herein".

[7] Mohammed Redza bin Mohd Yusof also averred that prior to the case management on 4 September 2014; neither the Plaintiff nor its solicitors were aware of the involvement of Mr Khoo Guan Huat and of my daughters employment with Messrs Skrine. This only came to light immediately prior to the case management on 4 September 2014 when the parties appeared before me in my Chambers.

[8] For the record, the disclosure was first by the Court as part of my then standing instructions to my Deputy Registrar and Senior Assistant Registrar. The involvement of Mr Khoo however, was not known until he personally attended Court on 4 September 2014. Further, and again for the record, my daughter was and is in no way involved, at any time nor will she be involved in this case in any manner whatsoever. This is confirmed

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