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FEDERAL COURT PUTRAJAYA
DATO TAN HENG CHEW – Appellant
Versus
TAN KIM HOR & ANOTHER APPEAL – Respondent
[Civil Appeals Nos: 02-6-2005(W) & 02-8-2005(W)]
[1] I associate myself with the reasonings and findings of my brother judges, Abdul Hamid Mohamad, FCJ and Steve Shim Lip Kiong, CJSS, and concur that both the appeals be dismissed with half costs to be taxed and be paid by the appellant and the deposits be paid out to the respondent to account of his taxed costs in both appeals.
[2] I agree that for the reasons stated by my noble and learned brother Abdul Hamid Mohamad FCJ, the appeal should be dismissed with half costs to the respondents. I may add that I agree entirely with His Lordship's observation that the Court of Appeal is bound by the doctrine of stare decisis to follow the "real danger of bias" test for recusal adopted by the Federal Court in Majlis Perbandaran Pulau Pinang v. Sykt Berkerjasama-sama Serbaguna Sungai Gelugor, [1999] 3 MLJ 1 and Mohamed Ezam Mohd Nor & 4 Ors v. Ketua Polis Negara, [2001] 2 MLJ 481. It is axiomatic to state that the doctrine of stare decisis has become the cornerstone of the common law system practised in this country. It is fundamental to its existence and to the rule of law. It has attained the status of immutability. In Public Prosecutor v. Datuk Tan Cheng Swee & Anor; [1980] 2 MLJ 277, Mr Justice Chang Min Tat had occasion to restate the doctrine in words which are poignantly clear when he said:
It is necessary to reaffirm the doctrine of stare decisis which the Federal Court accepts unreservedly and which it expects the High Court and other inferior courts in a common law system such as ours to follow similarly.
[3] Judicial hierarchy must be observed in the interests of finality and certainty in the law and for orderly development of legal rules as well as for the courts and lawyers to regulate their affairs. Failure to observe judicial precedents would create chaos and misapprehensions in the judicial system. This fact was certainly borne in mind by the Court of Appeal in Periasamy s/o Sinnapan & Anor v. Public Prosecutor, [1996] 2 MLJ 557 wherein Gopal Sri Ram JCA said:
We may add that it does not augur well for judicial discipline when a High Court judge treats the decision of the Supreme Court with little or no respect in disobedience to the well-entrenched doctrine of stare decisis. We trust that the occasion will never arise again when we have to remind High Court judges that they are bound by all judgments of this Court and of the Federal Court and they must, despite any misgivings a judge may entertain as to the correctness of a particular judgment of either Court, apply the law as stated therein.
[4] The observation is but a stark reminder to judges of the importance of adhering to the doctrine. That observation, although made in the context of a peculiar factual setting, is, in my view, equally applicable to the particular situation in the instant case where the Court of Appeal has refused, for insufficient reasons, to follow and apply the "real danger of bias" test for recusal enunciated by the Federal Court in Majlis Perbandaran Pulau Pinang (supra) and Mohamed Ezam (supra). Until such time when the Federal Court holds otherwise, this test must remain entrenched and binding on all inferior courts including the Court of Appeal. Certainty in the law must prevail.
[5] There are two appeals before us arising from an application by the respondent for the learned High Court Judge to recuse herself from hearing Civil SuitNo: D2-22-1179-2002. She dismissed the application but her order was reversed by the Court of Appeal on 12 January 2005.
[6] This Court, on 17 May 2005, granted the appellants leave to appeal to this Court on the following question of law:
3Whether the new test for recusal formulated by the Court of Appeal in these words:
would a right thinking member of the public armed with the facts before us come to the conclusion that the appellant would receive justice at the end of the trail before the same judge?
is the correct t
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