Niveetha A/P Ravikumar v Farhan Bin Zul Bahari (WA-22NCvC-224-05/2023)

NIVEETHA A/P RAVIKUMAR (Identity Card No.: 050304-01-1338)

THAMILARASI A/P RAMAKRISHNAN (Identity Card No.: 760824-08-6014)

MALISAH BINTI ANGGALI (Identity Card No.: 880229-12-5134)

NORATASYAH BADRIA BINTI ARSAD (Identity Card No.: 010710-12-1544)

NORANIJAH BINTI ARSAD (Identity Card No.: 890608-12-5790) ...PLAINTIFFS

FARHAN BIN ZUL BAHARI (Identity Card No.: 930602-07-5773) [menjalankan perniagaan dibawah nama dan gaya THE MEE SYNDICATE CAFE (No. Pendaftaran: 003165560-M)]

MAJLIS BANDARAYA PETALING JAYA ...RESPONDENTS

This is an application by the Plaintiffs to recuse the judge from further hearing and or managing the case on ground of bias and or apparent bias (Encl. 133).

The cause papers filled are as follows: No.Encl.Notes1.Encl.133Notice of application by Plaintiff for recusal of the Judge.2.Encl.134Affidavit in support by Plaintiff3.Encl.1362ndDefendant's affidavit in reply4.Encl.1371stDefendant's affidavit in reply5.Encl.1383rdDefendant's affidavit in reply6.Encl.139Plaintiff's affidavit in reply to Encl.1377.Encl.140Plaintiff's affidavit in reply to Encl.1368.Encl.141Plaintiff's affidavit in reply to Encl.1389.Encl.149Plaintiff's written submission10.Encl.148Plaintiff's bundle of authorities11.Encl.1461stDefendant's written submission12.Encl.1471stDefendant's bundle of authorities

13.Encl.144$2^{nd}$ Defendant's written submission14.Encl.145$2^{nd}$ Defendant's bundle of authorities15.Encl.142$3^{rd}$ Defendant's written submission16.Encl.143$3^{rd}$ Defendant's bundle of authorities

The brief facts of the case are as follows: i. On 29.12.2020, an incident occurred involving a gas explosion inside a food truck parked by the roadside at Lot Tempat Letak Kenderaan Food Truck (Petak No.3) Jalan 14/19 Petaling Jaya, 46000 Petaling Jaya, Selangor. Consequently, the Plaintiffs suffered physical injuries. The $ 3 ^{rd} $ and $ 4 ^{th} $ Plaintiffs were employed as workers inside the food truck while $ 1^{st} $ $ 2^{nd} $ and $ 5^{th} $ Plaintiffs were the customers. ii. The Plaintiffs claim liabilities against the $ 1^{\mathrm{st}} $ Defendants as tenant and operator, the $ 2^{\mathrm{nd}} $ defendant as owner of the food truck and the $ 3^{\mathrm{rd}} $ Defendant as local authority responsible for the licensing and regulatory approval of the food truck. iii. The Plaintiffs' claims are based on Negligence against all 3 Defendants for failure to ensure the safety in the operation and handling of the food truck. iv. Naturally, all 3 Defendants denied any liability.

By the time the Plaintiffs filed their application Encl. 133 on 19.3.2026, the trial had started on 15.12.2025 with cross examination of the $ 5^{th} $ Plaintiff in the witness box.

The Plaintiffs' application Encl. 133 is based on 2 grounds namely: a. The statements made by the Judge in Chambers before commencement of trial on $ 1 5^{th} $ of December 2025 regarding the liability of the $ 2^{nd} $ and $ 3^{rd} $ Defendants and in particular "floodgate of litigation" involving $ 3^{rd} $ Defendant and $ 3^{rd} $ Defendant counsel showing of Bar Council Personal Injury Compendium 2018 had demonstrated bias and lack of impartiality towards the $ 3^{rd} $ Defendant; and b. The Judge had expunged portions of PW5's witness statement on grounds of hearsay and had made certain rulings during the course of the trial on 15.12.2025.

An application to recuse a judge is a serious matter that strikes at the core of the judicial process. It affects the administration of justice and public confidence in the legal system. Hence any allegation of bias must be based on substantial grounds. There is a strong presumption of judicial impartiality, rooted in the oath every judge takes upon ascending the bench. See the case of Wong Kie Chie v Kathryn Ma Wai Fong & Anor and Other Appeal [2017] 5 CLJ 207 (CA) where the learned judge opined as follow: [12] Upon ascending the Bench, every judge of the superior courts in Malaysia takes an oath to discharge his judicial duties honestly and impartially to the best of his ability. As such, judges are duty bound to make decisions according to law, uninfluenced by personal bias, conflict of interest, without fear or favour, affection or ill-will or prejudice. Accordingly, a judge's duty to act honestly and impartially is a defining feature of, and one of the most fundamental principles which is naturally intrinsic to the judge's role in the administration of justice."

Consequently, to rebut this presumption, there must be real danger of bias and not actual bias. This has been established in the case of Dato Tan Heng Chew v Tan Kim Hor [2006] 2 MLJ 293 (FC) where the 3 members of the Federal Court wrote concurring judgment that the test for recusal as shown below: "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 received justice at the end of the trial before the same judge". The respondent did not take the stand that the new test was the correct test that should be applied in place of the "real danger of bias" test. Both parties in their submission had confirmed that the applicable test was the "real danger of bias" test."

The definition of "bias" as set out in the case of Residence Hotel and Resort Sdn Bhd v Seri Pacific Corp Sdn Bhd [2014] 10 MLJ 413 where the learned judge opined: [22] "Bias" is commonly described as leaning, inclination, bent or predisposition towards one side or another or a particular result. It represents a predisposition to decide an issue or course in a certain way in its application to legal proceeding which does not leave the judicial mind perfectly open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case. Bias generally refers to the mental attitude or disposition of the judge towards a party-litigant, rather than any views that he or she may entertain regarding the actual subject matter of the dispute (R v Bertham [1989] OJ No 2123 (QL), R v S (RD) 1997 3 SCR 484 at para 106)."

An allegation of bias is a serious allegation that calls into question the personal integrity of the judge and the integrity of the institution of justice. The onus of proving "bias" is on the party alleging it. See Marchand (Litigation guardian of) v Public general Hospital Society of Chatham (2001) 51 OR 97 (CA).

When the action was filed on 11.5.2023, the case was initially managed by the Learned Judge Nik Hasmat binti Nik Mohamed. The suit was subsequently managed by the Learned Judge Aliza binti Sulaiman and Avinder Singh Gill A/L Ranjit Singh.

During the final case management on 27.8.2025, the Learned Judge Avinder Singh scheduled the trial to proceed from 15.12.2025 to 19.12.2025. However, following the transfer of the Learned Judge, I was assigned to replace him.

Since I was not involved with the earlier case management of this suit and had not met with the respective counsels prior to the start of the trial, I requested the counsels for the respective parties to attend a meeting in my chambers on the morning of 15.12.2025. This was done to get a clearer understanding of each party's position and effectively manage the trial scheduled later that morning.

Prior to the meeting in my chambers, I had read the pleadings and documents filed by the respective parties in accordance with the earlier case management directions. The purpose of the meeting was to clarify the issues and to ascertain each party's position on those issues so as to facilitate effective management of the trial.

Furthermore O.34 r.1 (b) of the Rules of Court 2012 provides inter alia that the court may at any time after the commencement of proceeding of its own motion make such order or direction as it thinks fit as to the future course of the action. This is to ensure the just, expeditious and economical disposal of the case and to clarify each party's position on the issues to facilitate effective trial management.

During the meeting, the Plaintiff counsel alleged that I had made the following observations: i. that the $ 2^{\mathrm{nd}} $ Defendant has no liability and questioned the basis of the action against the $ 3^{\mathrm{rd}} $ Defendant; ii. Expressed concern regarding the principle of "floodgate of litigation" against local authorities and directing the plaintiffs to "be nice" to the $ 3^{rd} $ Defendant on the grounds that the $ 1^{st} $ defendants might not be able to pay damages, while the $ 3^{rd} $ Defendants has "pockets"; iii. labeling the Plaintiffs' pleading and evidence as weak and stating that the court would only award nominal damages of RM1.00 due to the absence of certain expert reports, without considering existing medical reports. iv. considering the figure of RM 45,000.00 from the "Bar Council Personal Injury Compendium 2018" (Bar Council Compendium) presented by the $ 3^{\mathrm{rd}} $ Defendant as a limit on damages before the details of injuries were proven in open court. (The above allegations are contained in paragraph 10 of the Plaintiffs' submission in Encl. 149)

These allegations have been taken out of context. The meeting was intended as a brief case management discussion during which issues were identified and the respective counsels gave their views. In fact, a perusal of the allegations showed that I actively engaged with counsels by raising questions concerning the evidence and legal issues. Any comments and observations made during the course of the meeting were necessarily preliminary. It was meant to help the courts to understand and clarify the parties' respective positions.

An example of this was when counsel for Plaintiff informed me that no expert witnesses would be called, I enquired how the court is to be assisted in assessing the compensation should liability ultimately be established in Plaintiffs' favour. In response, the counsel for the $ 3^{rd} $ Defendant produced the Bar Council Compendium. In fact, such an inquiry could also be interpreted by the counsel for the $ 3^{rd} $ defendant that I am biased in favour of the Plaintiffs. This demonstrates the danger of isolating individual remarks from their context and the need to interpret them within the context they were made.

Furthermore, since the meeting in the chamber was informal and conducted without the presence of the parties themselves, the observation must necessarily be private and confidential. This is to facilitate a candid and meaningful exchange between the parties and judges in a non-restrictive environment subject to appropriate procedural limits and boundaries.

Any such observations during the meeting were preliminary in nature and are neither final nor conclusive of the issues in dispute. They remain subject to the evidence subsequently adduced, assessment of witnesses and submission of counsel at the conclusion of the trial. Judicial engagement including the expression of preliminary views and observation during discussions in chambers is an integral part of the judicial process and, without more, cannot reasonably give rise to any inference of bias.

Ultimately, counsels are officers of the Court and as such they are accorded respect and trust by the judges. Any challenge to the integrity or impartiality of a judge based on comments and views expressed in the chamber, risks undermining that relationship of trust and confidence. Such allegations have the potential to erode the mutual respect between the Bench and the Bar. If left unchecked, it may adversely affect the orderly and effective administration of justice.

To avoid any such allegations of bias, in future all discussions concerning the proceedings would need to be conducted formally in open court where they can be captured by the recording voice to text (RVT) system. In these circumstances, the question that needs to be asked by the stakeholders is whether the interests of justice are best served by departing from that established practice.

See the case of Deleum Primera Sdn Bhd v Mazrin bin Ramli & Ors [2021] MLJU 484 where Justice Ong Chee Kwan JC (as he was then) after he had canvassed the prevailing authorities had observed as follows: "[75] A passage on this practice cited in Ang Sue Khoon v Majlis Bandaraya Pulau Pinang & Anor [2016] MLJU 1342 is instructive. At paragraph 84 of the judgment, this was what is stated: [84.8] ... In modern legal proceedings, a judge or adjudicator does not sit silently through a hearing, keeping his views and thoughts to himself; and expressing them, for the first time and with finality, only in his judgment. The opposite is, indeed, encouraged. Most counsels appreciate being alerted to the matters, of fact or law, which may be troubling a judge during a proceeding; because they can then do their best to address the judge's concerns. If a judge sits silently throughout a hearing, counsels will only discover for the first time what has been troubling him, when the judge's views emerge as final conclusions in his judgment; by which time it will be too late for a counsel to address the same. [84.9] ... The apex court of Australia, in Johnson v Johnson (2000) 74 ALJR 1380 @ 1382, para [13]; describes the modern practice to which I have just referred, and highlights the need to take a practical view of matters in the context of ordinary judicial practice: Whilst the fictional observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgement, as inscrutable as the Sphinx Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them."

The dicta of Justice Ong Chee Kuan in the Deleum (Supra) case is in accordance with the best practice approach as justice is best served when counsels are able to help to address the Judges' concerns as expressed in chambers. This approach has also found favour in the case of Mcgirvanmedia (Asia) Sdn Bhd v HSS Integrated Sdn Bhd [2024] 9 MLJ 13 where Justice Su Tiang Joo JC (as he was then) opined as follows: [39] Comments made on the nature of the cases that come before the courts during case managements are not unusual. I agree with the assertion of learned counsel for the defendant that the plaintiff's contention if accepted, would mean that a judge can no longer discuss any issues in a case with the parties' counsel until the day of the decision (even though the discussion is so that the parties can focus on the material issues as identified by the judge) — 'this is dangerous, farcical and will be detrimental to the smooth administration of justice' (see encl 57 para 3.11). [40] Justice Vernon Ong JCA (later FCJ) in Wong Kie Chie & Ors v Kathryn Ma Wai Fong (as the personal representative, executrix and trustee of the estate of the late Wong Kie Nai) & Anor and other appeals [2017] 3 MLJ 350; [2017] 5 CLJ 707 succinctly said at p 367 (MLJ), para 37 as follows: "Preconceived opinion by a judge did not constitute such a real bias so as to justify the recusal of the judge as the decision of the court in a pending matter would still be based and decided on the evidence and material before the court." [41] The above statement was adopted and applied by Justice Ong Chee Kwan J in Dato Sri Andrew Kam Tai Yeow v Hoong Bee Yook [2019] MLJU 943; [2019] 1 LNS 1298 (HC) who said at para [34] that it is not unusual for judges to make judicial comments or express preliminary views to counsel for the parties on the issues before them during case management, and that 'such comments and or preliminary views can by no means suggest that the judge has "prejudged" the issues'."

Expression of preliminary views does not mean a judge has already made up their mind. If a judge could be disqualified merely for sharing preliminary views, no judge will ever feel to question or critique a party's case in the matter before him for fear that the findings or observation may be used as a ground of recuse from further hearing related matters. Judges would constantly worry that their feedback would be used to recuse them which would ultimately interfere with their independence. See the case of Residence Hotel (Supra) where at paragraph 30 and 32; [30] If the nature of the complaint as raised by the defendant is permitted or freely accepted as a ground to recuse a judge, as in the case before this court, no court will ever be able to safely make any findings, observation or tangible criticism against a party's case in the matter before the court in his or her grounds of judgement for fear that the findings or observation may be used as a ground to recuse the judge from further hearing related matters in the case on the 'filmiest pretext of bias' and that no doubt will interfere with the judicial independence conferred on the judge. [32] This court would even go to the extent of saying that 'a judge's impatience, annoyance, anger, sarcasm, decision, rudeness and sharp remarks' are also insufficient to meet the test for establishing bias (Confectionately Yours Inc (Re) (2002) 219 DLR (4th) 72 (Ont CA), R v Grandaur [2007] BCJ No 647 (SC)). Unless the judge is seen to descend into the adversaries arena or demonstrates animosity or antipathy towards a party or a party's lawyer (Ayerst Makenna & Harrison Inc v Apotex Inc (1983) 41 OR (2d) 366 (CA) Blanchette v CIS Ltd (1973) 36 DLR (3d) 561 (SCC): To enable our justice system to function effectively, litigant and the public must have confidence that judges will be true to their oath of office and act impartially, without bias, for or against any party. In short, that judges must act judicially (R v Gaudaur (2007) BCSC 434). ... public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so (Wewaykum Indian Band v Canada, [2003] 2 SCR 259; 2003 SCC 45 at para 57) A system of justice, if it is to have the respect and confidence of its society, must ensure that trials are fair and that they appear to be fair to the informed and reasonable observer. This is a fundamental goal of the justice system in any free and democratic society (R v RDS (1999) 3 SCR 484). It is right and proper that judges be held to the highest standards of impartiality since they will have to determine the most fundamentally important rights of the parties appearing before them. This is true whether the legal dispute arises between citizen and citizen or between the citizen and the state. Every comment that a judge makes from the bench is weighed and evaluated by the community as well as the parties. Judges must be conscious of this constant weighing and make every effort to achieve neutrality and fairness in carrying out their duties. This must be a cardinal rule of judicial conduct (R v RDS (1999) 3 SCR 484, Wewaykum Indian Band v Canada [2003] 2 SCR 259; 2003 SCC 45, at para 57).”

Hence, given the fact that such preliminary views are neither final nor conclusive, any allegations of biases regarding my decision-making process are groundless. My final decision at the end of the trial will be based strictly on the evidence and the applicable law.

The crux of the Plaintiffs' allegation of bias during the proceedings on 15.12.2025 in open court can be summarised as follows: i. Several parts of PW5's evidence in her witness statement were struck out on the basis that they were hearsay evidence as it was not within the personal knowledge of the witness. ii. objections from Plaintiffs about the opposing party's questions or procedures were dismissed without providing any explanation.

The law on hearsay evidence is trite and the law reports are replete with cases on the admissibility of hearsay evidence. The court is under a duty to stop it from being adduced once the court is aware of it. See the case of Alcontara A/L Ambross Anthony V Public Prosecutor, [1996] 1 MLJ 209; "Now, this statement by ASP Abdul Wahab was clearly based on hearsay, was prejudicial to the appellant and therefore, inadmissible. Although no objection had been raised to the admission of this inadmissible evidence, the judge was nevertheless under an automatic duty to stop it from being adduced for inadmissible evidence does not become admissible by reason of failure to object."

See Capital Insurance Bhd V Cheong Heng Loong Goldsmiths (KL) Sdn Bhd [2005] 6MLJ 593 (FC) where Abdul Hamid Mohamad (FCJ) delivering judgement; [67] Failure to object at the time the document was marked does not affect the admissibility of the content. As the Supreme Court has said it in Malaysia National Insurance Sdn Bhd, even though objection should have been taken to the evidence of DW1 (in that case), hearsay evidence which ought to have been rejected does not become admissible merely because no objection was taken earlier. Admissibility is a question of law."

Since objections were raised regarding the admissibility of certain paragraphs of PW 5's witness statement on ground of hearsay, I made the necessary rulings on it. I did so after hearing the submission from counsel for Defendants and Plaintiff. In fact, there were paragraphs which in spite of the objection from Defendant's counsel, I had allowed those particular paragraphs to remain.

See the case of Caley Ototo Worldwide Sdn Bhd v Sun Wen Long [2010] 1 CLJ 725 wherein the Abdul Malik Ishak JCA (as his Lordship was) held that witnesses in court must testify only as to matters within their first-hand knowledge; "It is trite that witnesses must give their testimony orally in court and must testify only as to matters within their own first-hand knowledge. In Regina v. Sharp (Colin) [1998] 1 W.L.R.7, Lord Havers stated that an assertion other than one made by a person while testifying in the proceedings is generally inadmissible as evidence of any fact asserted. Where a witness, like PW1, seeks to reassert or rely upon information which others have told him that would be hearsay and inadmissible. When the evidence tendered is for the purpose of establishing the truth of what was said then it becomes hearsay and inadmissble (Subramaniam v. Public Prosecutor (supra); R. v. Willis [1960] 1 All E.R. 331; Regina v. Chapman [1969] 2 Q.B. 436; and Mawaz Khan and Amanat Khan v. The Queen [1967] A.C. 454). As I see it, the hearsay rule is a rule against the use of second-hand evidence. And that was the kind of evidence which PW1 advanced before this court. They are hearsay and inadmissible."

In respect of the dismissal of the objections from the Plaintiffs' counsel during the cross examination of Plaintiff's witness PW5 by Defendants' counsel, I overruled those objections on the basis that it was either relevant or falls within the witness's personal knowledge to answer. These rulings were made in the exercise of the Court's judicial discretion and in accordance with established principles governing admissibility of evidence.

Since the trial has already started, any attempt to recuse the judge should not be allowed without cogent reasons. Allowing recusal without such justification involves the risk of disrupting proceedings and causing unnecessary delay. After all, any such dissatisfaction with the evidential rulings can be addressed upon appeal.

See the case of Residence Hotel (Supra) at para 27; "[27] ... If the application for recusal is allowed too freely, it would encourage tactical applications by litigants seeking another judge to hear their case and it ought not to be entertained. A judge's decision which did not favour a litigant cannot be used as an instrument to recuse the judge or to remove the case to another court as the opposing party's right is to file an appeal to the Court of Appeal to have the decision corrected if the losing party is not satisfied with the decision. Under the circumstances, a party who is not satisfied with the decision should not as a matter of right apply to recuse the judge in hearing other pending or related matters by raising allegation of bias or 'reasonable apprehension of bias' which is a serious allegation as it will have far reaching effect on the decision of judges and calls into question the 'personal integrity' of the judge and the integrity of entire administration of justice,“

Such rulings are an ordinary and integral part of the judicial process. The mere fact that the plaintiff is unhappy with an interlocutory ruling made in the course of a trial does not, without more, justify an allegation of serious bias.

The appropriate recourse for the Plaintiff is to appeal, rather than in making unfounded allegations impugning the impartiality of the Court. The Plaintiffs' allegation of bias is misconceived and unsupported by any objective factual foundation.

The application Encl. 133 and affidavit Encl. 134 was filed on 19.3.2026. Whereas the alleged incidents happened on 15.12.2025. It is very telling that a lapse of 3 months between the alleged incidents and filing of Encl. 133, shows that the Plaintiffs did not think the alleged bias was serious enough to file their application on a more timely basis. No explanation was offered for the delay.

Having considered the grounds advanced by the Plaintiffs to support their application to recuse the Judge which not only failed to cross the threshold of "real danger of bias", it is frivolous and is an abuse of the process of the court.

The salutary reminder of Justice Sri Ram in the case of Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin & Ors [1995] 2 MLJ 213 should be in the forefront of counsel's mind when considering any application of recusal. His lordship Sri Ram at page 220 opined as follows: "In my judgment, a judge may, after expressing a view in the course of an interlocutory proceeding, quite properly hear the main action and come to a conclusion diametrically opposite to that expressed at the interlocutory level. Translated to a case such as the present, a judge may grant an interlocutory injunction because he finds a particular line of defence taken to be untenable and yet, after hearing all the evidence and detailed argument at the trial, reach the opposite conclusion and dismiss the suit. I cannot help but think that such an occurrence is commonplace in our courts as it is indeed in other jurisdictions."

This observation had also been repeated by his lordship Justice Ong Chee Kwan in the Deleum (Supra) case where he opined as follows: [2] Thus, when an application is made to recuse a judge, it touches upon a very fundamental aspect of the administration of justice and public confidence in the system of justice. Thus, any allegation of bias or reasonable apprehension of bias against a judge is a serious allegation and must be based on substantial grounds. If the application is made in a cavalier manner or based on bad faith or frivolous grounds, it may expose the applicant to possible contempt proceedings."

I find that the Plaintiffs' recusal application is entirely devoid of merit, as there is no real danger of bias. Consequently, Encl. 133 is dismissed with costs of RM10,000.00 to be paid to each Defendant. Furthermore, the Plaintiff's oral application for stay pending appeal is denied. The case shall proceed to trial as scheduled on 5.5.2026 and 6.5.2026. Dated:

7.2026 JUDGE HIGH COURT OF MALAYA, Counsel for Plaintiffs: Mr. Vigneswaran Raju together with Miss Roshini Ramasamy and Miss Lee An Chi Messrs. The Chambers of Waran (Kajang) Counsel for Respondents:

Farhan Bin Zul Bahari Miss Nurmunirah Bt Abu Bakar Messrs. Munirah Bakar & Co. (Bayan Lepas)

Ireman Automative Sdn Bhd Miss Nur Dalila Zulkarnain together with Miss Nurqamarina Bt Ruslan Messrs. Malis & Khoo (Kuala Lumpur)

Majlis Bandaraya Petaling Jaya Mr Lee Guo Wen together with Mr Gavrie Ang Messrs. Gan Ho & Razlan Hadri (Kuala Lumpur)