Recusal applications require substantial evidence of bias and must not impede judicial independence based on dissatisfaction with a ruling.

Headnote:(A) Courts – Judicial Conduct – Judges must act impartially and without bias – Applications for recusal are serious and must be based on substantial grounds – Allegations of bias should not arise from mere dissatisfaction with a judicial ruling – Recusal applications upheld only where there is a real danger of bias. (Paras 1-3, 35-46, 88-90)
(B) Judicial Discretion – Recusal Applications – The threshold for establishing grounds for recusal is high – Unsubstantiated allegations may undermine judicial integrity and the administration of justice. (Paras 49-51)
(C) Procedural Fairness – Requirements for Ex Parte Applications – Courts may permit the use of un-affirmed affidavits provided there is an undertaking to regularize them subsequently. (Paras 61-62)

Facts of the case: The case involves recusal applications by several Defendants against a judge regarding Ex Parte Applications filed by the Plaintiff for injunctions during the Covid-19 pandemic. The Defendants claimed bias based on the judge's involvement.

Findings of Court: The judge maintained that a recusal application demands a significant burden of proof and must stem from substantial evidence. The allegations of bias presented by the Defendants were found to be frivolous and lacking merit.

Issues: Whether the judge should recuse himself based on the Defendants' claim of bias arising from exchanges during hearings and the handling of the procedural aspects of the Plaintiff's applications.

Ratio Decidendi: The court stressed the importance of judicial impartiality and the standards required to prove bias. Unjustified recusal claims, especially those that seem strategically motivated to alter judicial proceedings, threaten public confidence in the judiciary. The court also reaffirmed its procedural decisions regarding Ex Parte Applications were within bounds.

Result: Defendants' recusal applications dismissed with costs.

JUDGMENT

Ong Chee Kwan JC:

Introduction

[1] Every judge of the superior courts in Malaysia takes an oath to discharge his judicial duties honestly and impartially to the best of his ability. Judges are duty bound to make decisions according to law and uninfluenced by personal bias, conflict of interest, without fear or favour, affection or ill-will or prejudice. In fact, a judge's duty to act honestly and impartially is the defining feature of the judge's role in the administration of justice.

[2] Thus, when an application is made to recuse a judge, it touches upon a very fundamental aspect of the administration of justice and public confidence in the system of justice. Thus, any allegation of bias or reasonable apprehension of bias against a judge is a serious allegation and must be based on substantial grounds. If the application is made in a cavalier manner or based on bad faith or frivolous grounds, it may expose the applicant to possible contempt proceedings.

[3] This judgment deals with recusal applications filed by the 1st to 4th Defendants, the 8th Defendant and the 10th Defendant under encls 246, 250 and 252 respectively ('the Recusal Applications').

Background Facts

[4] On Thursday, 5 November 2020, the Plaintiff commenced this action and applied ex parte for various injunctive reliefs in the nature of an Anton Pillar and Mareva orders against the Defendants. Due to the urgency of this matter and because of the Covid-19 pandemic in the country, the ex-parte hearing was fixed on the next day by way of the e-review remote platform ('the Ex Parte Applications').

[5] On the next day, Friday 6 November 2020, learned counsel for the Plaintiff duly logged into the e-review platform for the hearing of the Plaintiff's Ex Parte Applications ('Ex-parte E-Review Hearing').

[6] During the Ex-Parte E-Review Hearing, the Court raised several issues which concerned the Court arising from the Plaintiff's written submission filed in support of the Ex Parte Applications. More specifically, I had wanted learned counsel for the Plaintiff to provide further research and submissions to assist the Court to determine whether an Anton Pillar ought to be granted in the light of the Covid-19 pandemic and whether the Plaintiff can be said to be imputed with the fraud raised against the Defendants in the Ex Parte Applications.

[7] Notwithstanding that the affidavits did disclose some fraudulent activities, I had expressed some concern on the proportionality of granting a search and seizure order during the Covid-19 pandemic whilst seeking to balance the objective of preserving the evidence as sought by the Plaintiff. On the issue of imputation of fraud, I had drawn the attention of counsel for the Plaintiff to a few English cases for his response.

[8] As a result of my queries, learned counsel for the Plaintiff needed some time and the Ex Party E-Review Hearing was adjourned to be heard the following Monday, 9 November 2020 via the Zoom remote platform as oral submissions would be required from counsel to better address the issues raised by the Court,. Following from the aforesaid, learned counsel for the Plaintiff informed the Court that the Plaintiff would file supplemental affidavits and supplemental submissions to address the Court's concerns.

[9] I allowed learned counsel for the Plaintiff's request and asked that he email the documents by the noon on Sunday, 8 November 2020 so that I could read the same prior to the Zoom hearing on Monday, 9 November 2020.

[10] Over that weekend, learned counsel for the Plaintiff duly drafted 2 supplemental affidavits, namely, that of one Jayanthi A/P Gunaratnam ('Jayanthi') and one Alexander Michael Kuan Yew Tan ('Alex Tan'). However, Jayanthi and Alex Tan could not affirm their respective affidavits as the Commissioner for Oath's office was closed during the weekend. Therefore, they merely verified the contents of their affidavits and signed the same ('the Supplemental Affidavits').

[11] The signed

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