Rohana Yusuf J

[1]Enclosure 45 is an application by the plaintiff, Tan Sri Abdul Khalid bin Ibrahim (‘TSKI’) in Suit No D4–22A–216 of 2007, to recuse me from further hearing the trial of this case, which involves his claim against Bank Islam Malaysia Bhd (‘BIMB’). The case is consolidated and heard together with Suit No D4–22A–227 of 2007, which is the claim by BIMB against him, in the same transaction relating to a banking facility.

[2]This application, made under O 92 of the Rules of the High Court 1980, is grounded on the basis of my alleged involvement in the case while I was serving as a deputy director at the Jabatan Perbankan Islam dan Takaful (‘JPIT’), Bank Negara Malaysia. It is premised on two grounds, namely:

GROUND ONE

[3]There was a letter which refers to a conversation between Encik Fazlur Rahman bin Ebrahim, the then chief executive officer of BIMB, and I, enclosing an unsealed copy of a writ of summons filed by TSKI against BIMB and PNB in Labuan (‘Labuan suit’) and,

GROUND TWO

[4]In allowing the O 14 application by BIMB against TSKI in Suit No D4–22A–227 of 2007 heard together with the present suit, I had made the following observations, in my written ground of judgment reported in Tan Sri Abdul Khalid bin Ibrahim v Bank Islam Malaysia Bhd and another suit

15.1The Learned Judge’s concluded that the plaintiff’s claim as to the existence of a collateral contract between the plaintiff and the defendant was highly improbable based on the conclusion that the plaintiff was an ‘experienced and astute businessman’ and it would be preposterous to expect the plaintiff to rely on oral promises which contradicted the written agreement signed. This was a conclusion of fact as to the plaintiff’s abilities and state of mind despite there being no factual foundation for the same.

15.2The Learned Judge dismissed an issue raised by the plaintiff as to alleged impropriety on the part of CIMB Investment Berhad (‘CIMB’), acting together with the defendant, in disposing/selling of the plaintiff’s pledged KGB (‘Kumpulan Guthrie Berhad’). The learned Judge’s basis was that CIMB was a reputable financial institution regulated by Bank Negara and the Securities commission. This conclusion avoided the factual issues raised and referred rather to a regulatory framework that the learned Judge was once apart of;

15.3The Learned Judge drew an analogy between the plaintiff’s raising of the issue of illegality despite his having entered the A-Bai Bithaman Ajil Facility agreement and having purportedly benefited from the same, with a Muslim refusing to pay for his meal in a restaurant after having eaten the meal, when told after inquiring, that the food was non-halal. This remark was of a very personal nature and in the context of the matters set out above suggests a prior impression of the plaintiff and the positions he has taken in the actions herein.

[5]The following three facts must at the outset be noted viz:

(a)That, the Labuan suit was withdrawn and the present suit is based on the same subject matter as in the Labuan suit.

(b)I had also informed parties that at the relevant time I was one of the three Deputy Directors of JPIT, at Bank Negara Malaysia.

(c)The trial of this case had since commenced for five days and two witnesses for TSKI completed their testimonies.

[6]On the first ground, learned counsel for TSKI, Encik Malik Imtiaz Sarwar argued that the sequence of the following letters of communication sent to the Bank Negara Malaysia would have made me appraised myself with the present case and this would lead to real danger of apparent bias on my part in hearing this case. The said letters of communication are as below:

(a)a letter from BIMB dated 5 August 2004 sent to Bank Negara Malaysia for the attention of Encik Mohammad Khairuddin Hj Arshad of JPIT seeking clarification on some audit matter and the necessity for additional provisioning relating to TSKI’s account with BIMB (exh AKI1);

(b)a Bank Negara Malaysia’s letter dated 10 August 2004 re