JUDGMENT

Suraya Othman J:

[1] This notice of motion was filed by the applicant/accused in the original case for the following orders:-

(i) that the order of the presiding Sessions Court judge, Puan Khadijah Idris made on 6 February 2008 dismissing the applicant/accused's application that she recuse herself from continuing to hear and determine Arrest Case No. 62-54-99, 62-55-99, 62-56-99 and 62-57-99 be hereby set aside;

(ii) that Puan Khadijah Idris, presiding as Sessions Court judge in all the above mentioned cases do forthwith recuse herself from continuing to hear and determine all further proceedings in the said cases;

(iii) that the order calling for the defence of the applicant/accused by Puan Khadijah Idris in all the above cases be hereby set aside and the case continue before the present Sessions Court judge under s. 261 of the Criminal Procedure Code ;

(iv) alternatively that the hearing and determination of all further proceedings in the above cases continue before the present Sessions Court judge pursuant to s. 261 of the Criminal Procedure Code ; and

(v) further and other reliefs or orders as this honourable Court deems fit and proper.

Grounds Of Application

[2] The reasons or grounds of this application as stated in the said notice of motion are as follows:-

(a) that Puan Khadijah Idris at the time when she delivered this honourable Court's decision calling for the applicant/accused to enter his defence on all the four principal charges under the Banking and Financial Institution Act 1989 , is the treasury solicitor;

(b) that as treasury solicitor, Puan Khadijah Idris is required to provide legal advisory services to the Ministry of Finance and advising the said Ministry on the interpretation of laws under the Ministry's jurisdiction which include laws pertaining to the Central Bank of Malaysia ie, the Banking and Financial Institution Act 1989 ;

(c) that Puan Khadijah Idris's dual role as treasury solicitor and Sessions Court judge are incompatible and will cause embarrassment; and

(d) that the recusal of Puan Khadijah Idris from continuing to hear and determine this case, would ensure the complete impartiality of the proceedings before the Court without any danger of bias and preserve the integrity and sanctity of the proceedings against the applicant/accused.

[3] This application is supported by an affidavit filed by the applicant.

Facts Of The Case

[4] The brief facts which led to this application before me are as follows.

[5] The applicant, a Chief Executive Officer of a bank faced four charges under s. 65(1) of the Banking and Financial Institution Act 1989 (BAFIA) for acting outside the scope of the terms and conditions imposed on him by the licensed institution by giving credit facilities to Everise Capital Sdn Bhd for the purchase of shares contrary to the purpose for which the credit facility was approved by the Board of Directors of Sime Bank Bhd. The board had approved the loan towards repayment of losses incurred by a related company. He also faced four alternative charges for criminal breach of trust under s. 409 of the Penal Code (F.M.S. Cap 45).

[6] The applicant/accused was first charged at the Sessions Court of Kuala Lumpur on 30 April 1999 and the first date of hearing was on 15 February 2000 before the learned Sessions Court judge, Puan Khadijah Idris.

[7] The trial continued before the said judge until 14 September 2001 when she was transferred to the Economic Planning Unit (EPU) at the Prime Minister's Department as a Legal Advisor.

[8] Based on the application made by the accused counsel, the Chief Judge of Malaya on 17 April 2003 allowed the said judge to continue hearing the case.

[9] On 2 December 2004, the prosecution closed its case. While both parties filed their respective submissions in Court, Puan Khadijah Idris was then appointed as treasury solicitor in the Ministry of Finance on 1 June 2007.

[10] On 2 August 2007, the accused was called to enter his defence. The defence applied for a written judgm