JUDGMENT

Mohamed Dzaiddin CJ:

This is the judgment of the court.

This is an appeal against the decision of Augustine Paul J given on 25 April 2001 dismissing the appellants' motion for the writ of habeas corpus.

The appeal is founded on several grounds. However, before us on 15 October 2001, we heard arguments on the first ground, ie, the recusal application and adjourned our decision to today.

The facts leading to the above application are these. At the commencement of the hearing before the learned trial judge, En Sivarasa, one of the counsel for the appellants, urged him to consider whether he should recuse himself from hearing this case. Counsel's application was grounded on the fact that the learned judge was the judge who heard the case involving Dato' Seri Anwar bin Ibrahim, the conviction and sentence of which was handed dawn on 14 April 1999. This is the date that was referred to as "Black 14" in the press statement of the respondent. Counsel said that the conviction and sentence was the subject matter of strong public criticism including the Bar Council. He added that although there was no assertion of actual bias there might be a perception of bias as the facts are in the public domain. In opposing the application Dato' Abdul Gani Patail, Senior Deputy Public Prosecutor, said that the press statement of the respondent did not refer to the judgment of 14 April.

In his grounds of judgment (at p. 601 Appeal Record) the learned judge held as follows:

... If I were to dismiss the applications pending hearing would a reasonable person conclude that I am anti-reformasi? There was no response to this question from learned counsel. If the answer to the test is in the affirmative it is appropriate that I recuse myself from hearing the case. Such a perception can be said to be reasonable if, in my judgment of 14 April, I had made unnecessary comments on the reformasi movement. A perusal of the judgment will reveal that there is absolutely no reference whatsoever to the movement in the judgment. In the premises I was satisfied that the application made before me was frivolous, vexatious and an abuse of the process of the Court. Just as it is improper for a judge to hear a case when there may be a reasonable perception of bias if he hears the case it is equally wrong for him to disqualify himself from hearing a case when there are no such grounds to do so. As a matter of fact it would be a gross dereliction for a judge to disqualify himself when there are no grounds. Accordingly, I dismissed the application.

Before us, Encik Malik Imtiaz submitted that the application to the judge to recuse himself was based on an 'apprehension of bias' (as opposed to actual bias). According to a press statement issued by the respondent on 11 April 2001, the appellants were detained for inter aliatheir involvement in efforts to organise demonstrations aimed at using militant means. Amongst the more significant and imminent demonstrations was (at that time) one referred to as "Black 14" which was to have taken place on 14 April 2001. "Black 14" is the expression used to refer to and commemorate the date of the delivery of the judgment in PP v. Dato' Seri Anwar Ibrahim[1999] 2 CLJ 215by the learned judge and the said judgment had been the subject matter of great criticism. In the premises, counsel contended that there was a reasonable apprehension on the part of a fair-minded person that the said judge might not bring an impartial mind to decide the case and as such justice would not be seen to be done. He stated that the court must act impartially and must also be seen to act impartially (Ebner v. Official Trustee in Bankruptcy[2000] HCA 63). In any event, there was a real danger of apparent bias.

Encik Malik Imtiaz relied on the decision of the High Court of Australia in Webb v. The Queen[1994] 68 ALJR 582 where a juror in a murder trial brought flowers to court and, on impulse, asked a bystander to give them to the murdered person's mother who