1. ) Globalmariner Offshore Services Sdn Bhd v 1. ) 1. Th Heavy Engineering Berhad (22NCC-374-11/2016)

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FLOATECH (L) LTD … DEFENDANTS (Original Action) AND BETWEEN TH HEAVY ENGINEERING BERHAD … PLAINTIFF

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DYNAC SDN BHD … DEFENDANTS 2 (Action by Counterclaim) BEFORE YA ADLIN BINTI ABDUL MAJID JUDICIAL COMMISSIONER JUDGMENT (Enclosure 358) A. Introduction [1] This is an application by the 4th Defendant in the Counterclaim, Nor Badli Munawir bin Mohamad Alias Latfi (“Datuk Nor Badli”), for an order for my recusal from continuing to hear this matter. [2] I dismissed the application, for the reasons set out below. B. Background Facts [3] This matter is presently fixed for continuation of trial. When parties first appeared before this court in May 2021, further trial dates between June to December 2021 were fixed. [4] Datuk Nor Badli filed this application prior to the continuation of the trial. The main ground for this application is my involvement in a dispute in my capacity as a partner of my former firm, Messrs. Lee Hishammuddin Allen & Gledhill (“LHAG”). Datuk Nor Badli’s lawyer Mr. Chetan Jethwani (“Mr. Jethwani”), is also the lawyer representing the opposing parties in the dispute. The dispute has been referred to 3 mediation, and the mediation is currently ongoing at the Asian International Arbitration Centre. Datuk Nor Badli raised concerns of there being a real danger of bias on my part, in my continuing to hear this matter. He was also advised by Mr. Jethwani that if the partnership dispute is not resolved, the dispute will be referred to arbitration, and there is a possibility that I may be called as a witness at the arbitration. [5] TH Heavy Engineering Berhad (“THHE”), the 1st Defendant in the Main Action and the Plaintiff in the Counterclaim, together with Floatech

(L) Ltd (“Floatech”), the 2nd Defendant in the Main Action, objected to the recusal application. The main issue raised by THHE and Floatech is that they do not have knowledge of the issues raised by Datuk Badli, as the documents related to the dispute involving LHAG have been ordered to be kept confidential. As such, they raised concerns that pertinent issues such as the nature of the dispute, whether there are any prayers sought against me, and whether there is a possibility that I would be a witness in the proceedings, are speculative and lack factual support. C. The Law on Recusals [6] The starting point on the law on recusals is R v Gough [1993] AC 646, where the test of a ‘real danger of bias’ was expounded: “… I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in 4 question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him …” (emphasis added) [7] This test has been adopted by various Malaysian cases, including Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1; Mohamed Ezam Mohd Nor & Ors v Ketua Polis Negara [2001] 4 CLJ 401; Allied Capital Sdn Bhd v Mohamed Latiff bin Shah Mohd and another application [2001] 2 MLJ 305; and PP v Tengku Adnan Tengku Mansor [2020] 9 CLJ 30. [8] In Majlis Perbandaran Pulau Pinang, the Federal Court applied the test in Gough and held that: “The conflict of judicial opinion appears to have been resolved by the House of Lords in R v Gough [1993] AC 646 when the House applied 'the real danger' of bias test in a criminal case, where a juror had recognized the accused's brother as her next door neighbour, but this was not until after the verdict and it was held that there was no real danger of bias. Lord Goff, speaking for the House, made it clear that this was the test to apply in all cases of apparent bias, whether concerned with justices or other members of inferior tribunals, or with jurors or with arbitrators. Explaining the 'real danger' of bias test, Lord Goff put it this way (at p 670 F): 5 Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard '(or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him …' Lord Goff went on to substitute 'the opinion of the Court' for Lord Denning's 'reasonable people' in Lannon. Here is what he said on this point: ... Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. The ' real danger' test favoured in Gough could be seen as a compromise between ' the reasonable suspicion' of bias test and the 'real likelihood' of bias test so as to stress that the Court is contemplating a lower standard than 'likelihood' or 'probability of bias', that is to say, a 'real possibility of bias': see Gough at pp 668C-D, 670E-F, per Lord Goff; p 671B-C, per Lord Woolf. 6 It is also important to note that the question of bias has to be answered by considering all the facts not merely by reference to the view of the hypothetical reasonable man (R v Gough per Lord Goff, at p 670D-E).” (emphasis added) [9] In Dato’ Tan Heng Chew v. Tan Kim Hor [2006] 2 MLJ 293, the Federal Court again adopted the ‘real danger of bias’ test. It is pertinent to note that the Federal Court disagreed with a new test for recusal formulated by the Court of Appeal, which was adopted by the House of Lords in Porter & Anor v Magill [2002] 1 All ER 465 as a modification of the ‘real danger of bias test’ in Gough. The question formulated by the Court of Appeal, based on the test in Porter is the possibility of bias from the point of view of a ‘fair-minded and informed observer’. The Federal Court held that the test is more in line with European jurisprudence, but is not relevant in Malaysia. [10] Nonetheless, in a recent decision, Bar Council Malaysia v Tun Dato’ Seri Arifin bin Zakaria & Ors. (Persatuan Peguam-Peguam Muslim Malaysia, intervener) and another appeal [2020] 4 MLJ 773, the Federal Court appeared to have adopted the position of the ‘fair-minded and informed observer’, as set forth in the following passages: “[35] The current test is as distilled by Lord Hope in Porter v Magill [2002] 2 AC 357 at [103]: 7 The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. [36] The test is an objective one. The knowledge and disposition of the hypothetical observer were further explained in Gillies v Secretary of State for Work and Pensions [2006] 1 All ER 731; [2006] UKHL 2 at para [17]: The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matter, not what is in the mind of the particular judge or tribunal member who is under scrutiny. It is to be assumed, as Kirby J put it in Johnson v Johnson [2000] 201 CLR, 488, 509, para 53, that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. It is to be assumed too that he is able to distinguish between what is relevant and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant.” (emphasis added) 8 [11] The burden of proof in an application for recusal lies with the applicant, as explained by the High Court in Amir Shariffuddin bin Abdul Raub v Public Prosecutor and another case [2021] MLJU 34: “[27] The burden of proof in an application for recusal rests on the applicant who filed the application. The applicants are required to prove that there is a “real danger of bias” on the part of the judge hearing the case. What amounts to a “real danger of bias” is trite law. It is inadequate to state there is speculation, suspicion or even reasonable suspicion.” [12] Further, in Dato’ Tan Heng Chew, the need to err on the side of caution in favour of recusal was highlighted, as the highest standard of public confidence in the judiciary must be maintained. [13] Taking into account the cases as assessed above, the law on recusals may be summarised in the following manner: a. The test for recusal is whether there is a ‘real danger of bias’ on the part of the judicial officer; b. The ‘real danger of bias’ test is not concerned with actual bias but rather the prospect or possibility of bias; c. The test applies in all cases, whether concerning judicial officers, inferior tribunals or arbitrators; d. The question is whether the fair-minded and informed observer, having considered the facts, would conclude 9 that there was a real possibility that a judicial officer is biased; e. The question must be determined objectively by considering all facts, and on a case-by-case basis; f. The burden of proof in an application for recusal lies with the applicant; and g. Allegations of bias should not be levelled on insufficient materials, or on suspicion or speculation; and h. When in doubt, a cautious approach in favour of recusal should be adopted. D. Considerations [14] I now consider, with the benefit of the assessment of the cases as set out above, whether there would be a real danger of bias on my part, in continuing to hear a matter where Mr. Jethwani appears before me. [15] Before answering the question, due consideration must be given to the Judge’s Code of Ethics 2009 (“Code”). The Code sets out the basic standards governing the conduct of judges and provides guidance on the standards of personal and judicial conduct. The relevant paragraphs are as follows: a. Paragraph 5, on upholding the integrity and independence of the judiciary, which provides that: 10 “A judge shall exercise his judicial function independently on the basis of his assessment of the facts and in accordance with his understanding of the law, free from any extraneous influence, inducement, pressure, threat or interference, direct or indirect from any quarter or for any reason.” b. Paragraph 6, on avoiding impropriety and appearance of impropriety in all judicial activities. The relevant parts of paragraph 6 provide that: “(1) A judge shall act at all times in a manner that promotes integrity and impartiality of the judiciary.

A judge shall not:

allow any relationship to influence his judicial conduct or judgment…” c. Paragraph 7, on performing judicial duties fairly and impartially. The relevant parts provide that: “(3) A judge shall perform his judicial duties without bias or prejudice. 11

A judge shall dispose of all his judicial duties fairly, efficiently, diligently and promptly.” [16] The Code imposes obligations on judges to perform duties without bias or prejudice, and to avoid impropriety and appearance of impropriety. An application for recusal must therefore be assessed with due account given to the Code and the oath of office taken by judges to administer justice without fear or favour. An assessment of a recusal application must also be viewed with the judge’s ability to carry out the oath vis-a-vis their training and experience (see Bumicrystal Technology v Rowstead Systems Sdn Bhd [2004] 6 CLJ 85). [17] I am also guided by the following findings of the Court of Appeal in Che Minah bt Remeli v Pentadbir Tanah, Pejabat Tanah Besut, Terengganu & Ors [2008] 5 MLJ 206: “That public confidence in our judicial system is rooted in the fundamental belief that those judges, irrespective of race or religion or gender, who adjudicate the manifold cases must always do so without bias or prejudice and they must be perceived as such. It is an acceptable proposition to say that a judge's impartiality is presumed and any party seeking for a disqualification must establish the circumstances and situations to justify the disqualification of the judge…” (emphasis added) 12 E. Findings and Decision [18] As Mr. Jethwani pointed out quite correctly during the hearing of this application, this is not a case where a concern of actual bias is raised, or where I would have a direct or indirect interest in the outcome of the proceedings before this court. This case falls within the category of cases involving the apprehension of bias arising from the involvement of Mr. Jethwani and myself in the dispute related to LHAG. [19] On this, I find that there is no real danger of bias in my continuing to hear the matter before this court. The reasons for this finding are as follows: a. Mr. Jethwani is the counsel acting for the opposing parties in the dispute. He is not a party to the dispute. I do not think that his professional conduct in advising and acting for his clients would influence my decision in this matter. Nor should there be any inference of my decision being so influenced, arising merely from his professional role in the dispute. b. Any financial implications arising from the dispute that may affect me, would have no bearing on Mr. Jethwani, as the lawyer advising his clients on that matter. The dispute involves his clients, not him personally. c. Finally, the issue of my being called as a witness if the parties do proceed to arbitration is premature, and 13 speculation at best, considering that the dispute is now at the stage of mediation. [20] Taking into account my finding above, I dismissed Enclosure 358. Dated 30 August 2021 -sgd-Adlin binti Abdul Majid Judicial Commissioner High Court of Malaya Commercial Division (NCC6) Kuala Lumpur Counsel: Plaintiff (Main Action) and 1st, 3rd, 5th and 6th Defendants (Counterclaim) : David Mathews (together with Malarvily Perumal) of Messrs. Mathews Hun Lachimanan Defendant (Main Action) and Plaintiff (Counterclaim) : Mohd Izral Khairy (together with Joycelyn Goh) of Messrs. Izral Partnership) 2nd Defendant (Counterclaim) : Alan Wong of Messrs. Zain Megat & Murad 4th Defendant (Counterclaim) : Chetan Jethwani (together with Ivy Shu) of Messrs. Chetan Jethwani & Company 14 Legislation referred to: Judge’s Code of Ethics 2009 Cases referred to: Allied Capital Sdn Bhd v Mohamed Latiff bin Shah Mohd and another application [2001] 2 MLJ 305 Amir Shariffuddin bin Abdul Raub v Public Prosecutor and another case [2021] MLJU 34 Bar Council Malaysia v Tun Dato’ Seri Arifin bin Zakaria & Ors. (Persatuan Peguam-Peguam Muslim Malaysia, intervener) and another appeal [2020] 4 MLJ 773 Bumicrystal Technology v Rowstead Systems Sdn Bhd [2004] 6 CLJ 85 Che Minah bt Remeli v Pentadbir Tanah, Pejabat Tanah Besut, Terengganu & Ors [2008] 5 MLJ 206 Dato’ Tan Heng Chew v. Tan Kim Hor [2006] 2 MLJ 293 Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1 Mohamed Ezam Mohd Nor & Ors v Ketua Polis Negara [2001] 4 CLJ 401 Porter & Anor v Magill [2002] 1 All ER 465 PP v Tengku Adnan Tengku Mansor [2020] 9 CLJ 30 R v Gough [1993] AC 646