A ruling refusing to recuse a trial judge during proceedings is an interlocutory decision and is not appealable, as it does not finally dispose of the rights of the parties involved.

Appeal

[1] This appeal lodged by the appellant ("the accused") is directed against the decision of the Kuala Lumpur High Court, given on 6 December 2010, dismissing the accused's application to recuse the learned trial judge from continuing to handle the criminal proceedings against the accused in Criminal Trial No. MTJ3-45-9-2005 ("the second recusal application").

[2] On 14 January 2010, we dismissed the accused's appeal in limine.

[3] We now provide our full judgment.

Factual Background

[4] In the Kuala Lumpur High Court, the accused was facing a charge of intentionally committing carnal intercourse against the order of nature with Mohd Saiful Bukhari bin Azlan ("the complainant") by inserting his (the accused's) penis into the complainant's anus, punishable under s 377B of the Penal Code .

[5] The trial commenced on 3 February 2010 with the calling of the complainant as PW1.

[6] After the learned trial judge had dismissed the accused's two applications viz (1) to cite Utusan Malaysia for contempt of Court; and (2) to issue a warning to Utusan Malaysia concerning reports of the trial published in the said paper on 4 and 5 February 2010 respectively, on 8 February 2010, the accused filed the first application to recuse the learned trial judge.

[7] Currently, the prosecution was at the stage where PW3 was under cross-examination by the accused's learned counsel. At that juncture, the accused made the second recusal application averring in para 5 of his affidavit in support that in the course of the trial, the learned trial judge had intimidated the accused's learned counsel with contempt proceedings.

[8] The learned trial judge considered and ruled that the second recusal application stood dismissed. Hence, the accused's appeal before us.

Preliminary Objection

[9] Learned deputy public prosecutor Mr Mohamad Hanafiah (assisted by Dato' Nordin Hassan, Mr Wong Chiang Kiat, Ms Noorin Badaruddin, Ms Naidatul Athirah Azman and Ms Mira Mirna Musa) raised a preliminary objection, on the ground that the ruling of the learned trial judge is clearly not within the purview of 'decision' in s 3 read with s 50(1) of the Courts of Judicature Act 1964 , as it was made in the course of a trial and did not finally dispose of the accused's rights under the charge. A reference hereinafter to a section is a reference to that section in the .

[10] Learned defence counsel Mr Karpal Singh (Dato' Param Cumaraswamy, Mr SN Nair and Mr Ramkarpal Singh with him) contended in essence that the order of the learned trial judge is final and appealable.

[11] In our view, the questions raised for our determination revolve around the jurisdiction of this Court to hear the appeal, and the accused's right to appeal.

[12] This Court is a creature of statute. It was established in 1994 vide art 121(1B) of the Federal Constitution. As we are considering a cause or matter arisin