Datuk Kasi a/l Palaniappan v Menara Embun Sdn Bhd & 4 Lagi (WA-24NCC-410-09/2017)

MENARA EMBUN SDN. BHD. (Company No.: 428618-M)

TAN SRI DATUK HAJI MUSTAPHA KAMAL BIN HAJI ABU BAKAR (I/C No.: 490318-08-5599)

FELINA BINTI TAN SRI DATUK HAJI MUSTAPHA KAMAL (I/C No.: 701201-10-6138)

MKN HOLDINGS SDN. BHD. (Company No.: 91625-P)

SETIA HARUMAN SDN. BHD. (Company No.: 425145-U) …DEFENDANTS [Heard together with the following Originating Summons pursuant to the Order dated 3.12.2019] 2 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR (COMMERCIAL DIVISION) ORIGINATING SUMMONS NO.: WA-24NCC-411-09/2017 In the matter of Modern Eden Sdn Bhd. (Company No.: 623037-H) And In the matter of Section 346 of the Companies Act 2016 And In the matter of Orders 7 and 88 of the Rules of Court 2012 BETWEEN DATUK KASI A/LKL PALANIAPPAN (I/C No.: 581025-10-6855) …PLAINTIFF

MODERN EDEN SDN BHD. (Company No.: 623037-H)

TAN SRI DATUK HAJI MUSTAPHA KAMAL BIN HAJI ABU BAKAR (I/C No.: 490318-08-5599)

FELINA BINTI TAN SRI DATUK HAJI MUSTAPHA KAMAL (I/C No.: 701201-10-6138)

MKN HOLDINGS SDN. BHD. (Company No.: 91625-P)

SETIA HARUMAN SDN. BHD. (Company No.: 425145-U) …DEFENDANTS 3 GROUNDS OF JUDGMENT Introduction [1] Enclosure (“Enc.”) 284 in Originating Summons WA-24NCC-410- 09/2017 (“Menara Embun OS”) and Enc. 267 in Originating Summons WA-24NCC-411-09/2017 (“Modern Eden OS”) are recusal applications filed to recuse me from hearing the Menara Embun OS and Modern Eden OS. [2] I had dismissed both applications on 26.10.2021. These are the reasons for my decisions. As the matters were related, it is convenient to deal with both decisions in one judgment. Background [3] The Menara Embun OS and Modern Eden OS were filed by the Plaintiff, Datuk Kasi a/l Palaniappan (“DK”) pursuant to Section 346 of the Companies Act, 2016 (“CA 2016”) complaining of minority oppression in respect of the affairs of Menara Embun Sdn Bhd and Modern Eden Sdn Bhd respectively. [4] DK together with one Impresive Circuit Sdn Bhd also commenced another minority oppression claim in respect of Setia Haruman Sdn Bhd vide Originating Summons No. WA-24NCC-290-07/2017 (“Setia Haruman OS”). In the Setia Haruman OS, DK was struck out as a Plaintiff on 25.4.2018 as he was not a shareholder of Setia Haruman. DK however owns 50% of the shares in Impresive Circuit. 4 [5] In each of the 3 OS Actions, Tan Sri Mustapha Kamal (“TSMK”) was named as the 2nd Defendant. The Plaintiff’s complaints in the 3 Actions are that alleged oppressive acts were carried out in breach of an alleged Understanding, New Board Understanding that the DK allegedly had with TSMK and DK’s legitimate expectation to participate in the management of Setia Haruman, Menara Embun and Modern Eden. [6] In Enc. 15 of both the Menara Embun OS and Modern Eden OS, DK made an application dated 15.11.2017 for the Menara Embun OS and Modern Eden OS to be transferred from KLHC NCC 5 to KLHC NCC 6 (“transfer applications”), the court hearing the Setia Haruman OS on inter alia the grounds that:

the underlying issues arising in the Menara Embun and Modern Eden OS are closely connected to the issues in OS 290;

the transfer will ensure that all issues in dispute arising from all the claims in the Menara Embun and Modern Eden OS are before the same forum for an effectual and complete determination by the court and to avoid inconsistent decisions;

two out of the 5 Defendants named in the Menara Embun and Modern Eden OS (TS MK and Setia Haruman) are also

the Plaintiff’s transfer applications merely seek to transfer the OS to a different court which is of coordinate jurisdiction 5 and the transfer will not cause any prejudice or any inconvenience. [7] The transfer applications were dismissed. [8] Meanwhile, on 26.10. 2018, the Menara Embun OS and Modern Eden OS were converted into writ actions known as Kuala Lumpur High Court Civil Suit No. WA-22NCC-500-11/2018 and Kuala Lumpur High Court Civil Suit No. WA-22NCC-497- 11/2018 (Menara Embun and Modern Eden Actions). [9] In or about November 2018, the Setia Haruman OS was administratively transferred to NCC5. [10] Vide Enc. 108 dated 28.1.2019 in the Setia Haruman OS, Impresive Circuit applied for the Setia Haruman OS and the Menara Embun and Modern Eden Actions to be heard together pursuant to Order 4 of the Rules of Court 2012 and/or the inherent jurisdiction of the Court on the grounds that:

the Setia Haruman OS and the Menara Embun and Modern Eden Actions are premised on the same and/or similar set of acts or transactions;

the underlying issues in the Setia Haruman OS are closely connected to the issues arising in the Menara Embun and

to ensure that all issues and/or facts in dispute between all the relevant parties are before the same 6 forum for a “complete and effective determination and to avoid inconsistent decisions”; and

to save time and costs. [11] On 03.12.2019, Wong Chee Lin J, dismissed Impresive Circuit’s application to have the 3 Actions heard together. Her Ladyship held in her judgment reported as Impresive Circuit Sdn Bhd v Setia Haruman Sdn Bhd & Ors [2019] MLJU 1862: “[37] It is true that the High Court had previously dismissed an application by the Plaintiff to transfer the Menara Embun OS and the Modern Eden OS to be heard together with the SH OS. However, the complaint in the Menara Embun Suit and the Modern Eden Suit also concern the alleged breach of the Understanding and the New Board Understanding so there are definitely common issues of law and fact as far as the three matters are concerned. However, the three matters are all fixed before the same Court and I have previously informed the parties that the three matters will be heard one after the other immediately so the decision in all three matters will be consistent. The possibility of two different courts coming to different and inconsistent decisions on the same or a similar matter or issue does not arise. My concern if I were to order the two writ actions to be heard together with the SH OS is that, administratively, it will be complicated and problematic as the SH OS is supposed to be disposed of by way of affidavit evidence, (albeit I have allowed cross examination of the deponents) whereas there will be witness statements for the two writ actions and it is conceivable that some of the witnesses for the writ actions may not have affirmed any affidavits in the SH OS. The evidence of those witnesses cannot be considered in the determination of the SH OS whereas it is relevant for the determination of the two writ actions. There will be confusion if the three matters are heard together. Also, some of the Defendants in the SH OS are not parties to the Menara Embun Suit and the Modern Eden Suit and the Plaintiff in the SH OS (Impressive Circuit) is not a 7 plaintiff in the Menara Embun Suit and the Modern Eden Suit. Accordingly, whilst I will make an order for the two writ actions to be heard as one matter, I will not order the SH OS to be heard together with the Menara Embun Suit and the Modern Eden Suit.”(own emphasis) [12] Impresive Circuit did not appeal against the dismissal of the application to have the 3 Actions heard together. [13] This Court at case management on 19.8.2020, following Wong Chee Lin J’s earlier intention or direction to have the Setia Haruman OS and the Menara Embun and Modern Eden Actions heard one after the other, fixed cross-examination of the Defendants’ deponents in the Setia Haruman OS to proceed on 17.3.2021 to 19.3.2021 with the Menara Embun and Modern Eden Actions fixed for trial from 5th to 8th April and 12th to 15th April 2021. [14] During case management of the Setia Haruman OS and the Menara Embun and Modern Eden Actions on 5.3.2021, Datuk Sri Gopal Sri Ram, learned Counsel for the 2nd to 6th Defendants informed that TMSK was admitted to IJN. This Court then fixed 16.3.2021 for case management to ascertain if TMSK was out of hospital and well enough for cross examination on 17.3.2021. On 16.3.21, during case management, Dato’ Pathmanathan, learned Counsel for the 2nd to 6th Defendants informed that TMSK will be ready for cross-examination from the hospital as he was scheduled for surgery due to organ failure but informed that the trial dates for the Menara Embun and Modern Eden Actions will have to be vacated and further, the 3rd Defendant, TMSK’s daughter also had surgery and was on 3 month’s medical leave. 8 [15] In the event, the cross-examination of deponents in the Setia Haruman OS proceeded from 17th March to 19th March 2021; the parties having agreed that the cross-examination be conducted virtually online by using the Zoom video conferencing platform. [16] After cross-examination of the deponents and re-examination had concluded, this Court directed that the cross examination notes be transcribed and fixed dates for filing of written submissions and a date for decision/clarification on 04.06.2021. The Plaintiff’s solicitors requested for decision to be deferred until the disposal of the Menara Embun and Modern Eden Actions which was objected to by the Defendants. After hearing the parties, this Court informed the need to render decision after conclusion of a hearing promptly. [17] The Menara Embun and Modern Eden Actions did not proceed in April 2021 as fixed for reasons stated at paragraph 14. During case management on 31.3.2021, Mr. Owee, learned counsel for the Plaintiff informed that the appeals in the Court of Appeal were adjourned to 25.6.2021. Trial dates were then fixed for the Menara Embun and Modern Eden Actions on 2nd to 4th August and 22nd to 24th September 2021. [18] By letter dated 31.5.2021, the Defendants in both the Menara Embun and Modern Eden Actions applied for the August dates to be vacated as both their counsel had a continued hearing to attend to at the Federal Court. This Court then fixed the matter for case management on 4.6.2021 to allot replacement dates for trial. On 4.6.2021, during case management, the dates of 10.9.21 and 30.9.21 were fixed to replace the August dates. As Mr Owee acting for the Plaintiff in both the Menara Embun and Modern Eden Actions did not have counsel’s free dates with 9 him, a further case management was fixed for 25.6.21 for him to inform if the replacement dates were suitable. The Setia Haruman OS originally fixed for clarification/decision on 4.6.2021 was adjourned to the same date of 25.6.21for decision. [19] On 25.6.2021, this Court handed down its decision and dismissed the Setia Haruman OS. On the same day, Mr. Owee for the Plantiff in the Menara Embun and Modern Eden Actions informed that 10.9.21 was not suitable for counsel and a replacement date for trial was fixed for 9.11.21. [20] At the time the recusal applications were made on 3.9.2021, the Menara Embun and Modern Eden Actions were reverted back to the Menara Embun OS and Modern Eden OS after the Court of Appeal allowed on 26.08.2021 the 2 nd to 4th Defendants’ appeals against the conversion. Plaintiff’s case for recusal in enc.284 in the Menara Embun OS & Enc.267 in the Modern Eden OS [21] The recusal applications were grounded on:

the 3 Suits being inter-related;

my findings in the Setia Haruman OS will give rise to a perception of bias on my part when hearing the Menara Embun OS and Modern Eden OS as the evidence to be adduced and legal points to be raised in the Menara Embun OS and Modern Eden OS are similar to the evidence adduced and legal points raised in the Setia Haruman OS; and 10

there is present therefore a “real danger of bias” if I proceed to hear the Menara Embun OS and Modern Eden OS. [22] Counsel for the Plaintiff contended that:

from the circumstances of the case including the fact that the cross-examination/trial dates of the 3 Suits were fixed consecutively without enough time for submissions and a decision in between, it necessarily followed that the 3 Suits will all be heard before any decision is made;

(ii) upon the completion of the cross-examination in the Setia Haruman OS on 19.3.2021, I had departed from the above “previous rulings” and “made a new ruling” that I will decide the Setia Haruman OS before hearing the Menara Embun and Modern Eden suits;

(iii) having already determined the live issues in the Setia Haruman OS which are also live issues to be determined in the Menara Embun OS and Modern Eden OS, there is a perception of bias on my part in hearing the Menara Embun OS and Modern Eden OS as I will be bound by my findings in the Setia Haruman OS. There is in effect a form of pre-judgment by me; and

(iv) as a result, there is a real danger of bias if I proceed to hear the Menara Embun OS and Modern Eden OS. Hence I ought to recuse myself. 11 Defendants’ objections to recusal [23] For the Defendants, in essence it was argued that:

the application that the same Judge should hear the 3 Actions was at DK and Impressive Circuit’s behest, a deliberate, conscious and informed decision taken with the benefit of professional legal advice. After the Setia Haruman OS was dismissed, DK cannot approbate and reprobate; having so elected, the applicants are bound. The administration of justice will be brought into odium and contempt if the Courts can be embarrassed by the applicants flip flopping;

(ii) Impressive Circuit did not appeal against the Court’s directions or apply for a stay of the decision in the Setia Haruman OS pending the hearing of the Menara Embun and Modern Eden Actions;

(iii) DK has failed and/or neglected to satisfy the high threshold of “real danger of bias”, i.e. that the bias must be personal or based on extrajudicial reason and not merely a “perception of bias”; the court is to be cautious to ensure there is no "judge-shopping", citing R v Gough [1993] 3 All ER 724; Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 CLJ 65; Ding Huong Mieng v Lau Cheng Kiong & Anor 2020] 1 LNS 405; Masyitah Md Hassan v Sakinah Sulong & Anor [2021] 1 LNS 638; 12

(iv) what was said by Wong Chee Lin J and this court was that the 3 Suits would be heard one after the after to ensure that they were heard by the same Judge to ensure consistent decisions in the 3 Suits, which is still the case here; neither Wong Chee Lin J nor this Court said decision will be reserved in any of the suits until and after all 3 Suits had been heard;

a judge is not precluded from hearing a case against a person when he had in the past heard another case against the person if the facts were different and 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 - PP v Tengku Adnan Tengku Mansor [2020] 9 CLJ 30; Menteri Hal Ehwal Dalam Negeri v Raja Petra Raja Kamarudin & Another Appeal [2009] 3 CLJ 513; Comsa Farms Bhd v Malaysian Assurance Alliance [2012] 3 CLJ 724; Wong Kie Chie & Ors v Kathryn Ma Wai Fong [2017] 4 CLJ 70;

(vi) it would be a gross dereliction of the JC’s duty as a judge to disqualify herself when there is obviously no real danger of bias for learned JC;

(vii) the unwarranted, unfounded and scurrilous allegations of bias against the said JC by the 13 Plaintiff is a serious matter which erodes public confidence in the judicial arm of the State and should be avoided at all costs, if necessary, by having resort to the power to punish for contempt. (Hock Hua Bank (Sabah) Berhad v Yong Liuk Thin & 7 Ors [1995] 2 CLJ 900 @ 904 CA);

(viii) Judges enjoy a presumption of impartiality in the performance of their judicial functions and the legal burden, therefore, is on the applicant to prove that there was a real danger of bias, which warranted the recusal of the Judicial Commissioner-lecture on “Judicial recusal” given by YA Tan Sri Idrus Harun, FCJ with excerpts as produced in Ding Huong Mieng v Lau Cheng Kiong & Anor (supra) and Masyitah Md Hassan (supra). The Law [24] The Federal Court in Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasamasama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 MLJ 1 at pp 69-70 adopted the concept of ‘real danger of bias’ test as explained by Lord Goff in R v Gough [1993] AC 646 at pg 670 as follows: “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.” 14 [25] The Federal Court went on to say that 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), and that having given careful consideration to the matter, it preferred the test of apparent bias given in R v Gough ('the real danger of bias' test) as this will avoid setting aside of judgment upon some “insubstantial grounds and the flimsiest pretexts of bias”. [26] The same tests were applied by the Federal Court subsequently in Allied Capital Sdn Bhd v Mohamed Latiff bin Shah Mohd and Another Application [2001] 2 MLJ 305 and Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara [2002] 1 MLJ 321; [2001] 4 CLJ 701. [27] Due to developments in English law after R v Gough, particularly in the House of Lords decision in Porter and another v Magill [2002] 1 All ER 465, the question of whether the ‘real danger of bias’ test established in R v Gough was still applicable was put to rest by the Federal Court in Dato’ Tan Heng Chew v Tan Kim Hor [2006] 2 MLJ 293; [2006] 1 CLJ 577 where it said: “[22] It has been brought to our attention that, in England, the R v Gough test has been modified by the House of Lords in Porter & Anor v Magill [2002)] 1 All ER 465. With the modification, the 'question is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.' This modification was made to bring it more closely with Strasbourg jurisprudence which, since 2 October 2000, the English courts were required to take into account. The House of Lords had a reason for modifying the test. But, that reason is not relevant in 15 Malaysia. I do not think that the 'old test' would lead to an injustice or that 'the new' test would lead to more justice. What is more important is the integrity and honesty of the judges themselves.” [28] To avoid recusal applications of judges based on "quite insubstantial grounds and the flimsiest pretexts of bias", there being a presumption of impartiality in the performance of their judicial functions, it is axiomatic that the applicant bears the high legal burden of satisfying the Court by convincing evidence of the apprehension of bias. In this regard, support is found in the case of Che Minah bt Remeli v Pentadbir Tanah, Pejabat Tanah Besut, Terengganu & Ors [2008] 5 MLJ 206 where Abdul Malik Ishak JCA succinctly stated: “In the common law world over the past decade there is rooted in our legal system the fundamental belief that judges who adjudicate must always do so without bias or prejudice and it must be perceived to be so. It is a correct assertion to say and I so say that a judge must be impartial and it is his impartiality that forms the core attribute of the judiciary. The presumption of impartiality of a judge must be upheld. It is the cornerstone of the judiciary. No one should carelessly argue that a particular judge is bias because the credibility of the judge depends on the presumption of his impartiality. And that presumption is deeply rooted in our legal system. That being the case, the burden is on the party arguing for a disqualification to establish that the circumstances justify the finding that the judge must be disqualified. Put in another way, the onus of demonstrating bias lies with the person who is alleging that it is so. In R v Smith & Whiteway Fisheries Ltd (1994) 133 NSR

50 CA, at pp 60–61, the court observed that the reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.” 16 [29] Earlier in the same judgment, His Lordship’s misgivings that recusal applications may be abused to shop for judges is worded thus: “..That reasonable person must understand that as the King's judges, the judge's impartiality is presumed and there are no circumstances and situations to justify the disqualification of members of this panel from hearing the appeal. No litigant can shop for judges of their own choice in this country…” [30] His Lordship continued: “Speaking for myself, I must say that I have always been fair minded and my concern is to ensure that justice is not only done but must be seen to be done. I have always been fair to all litigants and I will continue to do so until I relinquish my cherished position upon retirement. I have this to say. That judges dispense justice according to the law. If the application to disqualify members of this panel is allowed for the reasons as advanced orally by learned counsel for the appellant, this would open the floodgates to other legal practitioners to choose judges in the Court of Appeal to hear their cases in the near future. That should not happen and this panel will not allow it to happen and will not condone it.” [31] Che Minah was cited with approval by Idrus Harun, FCJ (as he then was) in his lecture on “Judicial Recusal” conducted by the Judicial Academy: “It is a fundamental principle that a judge should resist the temptation to yield to the pressure to recuse himself if there is no valid or sufficient ground for recusal. In law, any party seeking disqualification must establish the circumstances and situations to justify the disqualification of the judge (Che Minah bt Remeli v 17 Pentadbir Tanah, Pejabat Tanah Besut, Terengganu & Ors [2008] 3 CLJ 653; [2008] 5 MLJ 206]. Judges enjoy a presumption of impartiality in the performance of their judicial functions. However, such presumption is rebuttable, but only with cogent evidence and in appropriate cases that he may recuse himself. This proposition has found favour with local cases which in summary show that the law will not support a possibility of bias in a judge who is sworn to administer impartial justice and whose authority greatly depend on that presumption and idea (Hock Hua Bank (Sabah) Berhad v Yong Liuk Thin & 7 Ors [1995] 2 CLJ 900; Dato' See Teow Chuan & Ors v Ooi Woon Chee & Ors and other applications [2013] 4 CLJ 901; [2013] 4 MLJ 351 ). Section 5 of the Judges' Code of Ethics 2009 admonishes judges, in the exercise of their judicial functions, to act independently on the basis of his assessment of the facts and in accordance with his understanding of the law, free from extraneous influence, inducement, pressure, threats or inference direct or indirect from any quarters or for any reasons.” [32] A recusal application as such is not to be made lightly. There is dicta in a wealth of cases on this, to name a few:

in Residence Hotel and Resorts Sdn Bhd v Seri Pacific Corp Sdn Bhd [2014] 10 MLJ 413, the court observed: [24] … A judge swears on oath that he or she will be impartial, and there is a strong presumption that judges honour the oath and do dispense justice without bias (R v RDS [1997] 3 SCR 484 at para 117, R v Smith & Whiteway Fisheries Ltd (NSCA) (1994) 133 NSR

50 (CA)). An allegation of bias or reasonable apprehension of bias is a serious allegation that calls into question the personal 18 integrity of the judge and the integrity of the entire institution of justice. The grounds of apprehension of bias must be substantial, but however, each case must be evaluated in its own particular circumstances and in light of the whole proceedings. The party alleging bias has the onus of proving it (Marchand (Litigation guardian of) v Public General Hospital Society of Chatham (2001) 51 OR 97 (CA) at para 131, (leave to appeal SCC refused (2001) SCCA No 66,)). … [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, (Marchand (Litigation guardian of) v Public General Hospital Society of Chatham (2001) 51 OR 97 (CA) at para 131, (leave to appeal SCC refused, (2001) SCCA No 66), cause delay in the disposal of cases filed in court as the file has to be transferred to another judge who will have to reschedule the cases fixed in his or her court and it may cause a revolution.” (own emphasis)

(ii) in Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin & Ors [1995] 2 MLJ 213 (CA), Gopal Sri Ram JCA (as His Lordship then was) pronounced at p 220 of the judgment: 19 “In my judgment, it is a most serious matter to allege bias against a judge whose sole function is to decide a case according to the evidence before him. I notice an unhealthy trend of late to allege bias too readily against a judicial arbiter on insufficient material. Nothing is capable of eroding public confidence in the judicial arm of the state than unwarranted and unfounded allegations of bias. It is therefore to be avoided at all costs, if necessary, by having resort to the power to punish for contempt.” NH Chan JCA said at p 223 of the same judgment: “Other than an interest which is pecuniary or proprietary in subject matter of the proceeding, the law does not assume bias so as to disqualify a judge from acting in his judicial capacity. Bias with regard to anyone acting in a judicial capacity means anything which tends or may be regarded as tending to cause such person to decide a case otherwise than on the evidence (R v East Kerrier Justices [1952] 2 QB 719; [1952] 2 All ER 144); 1 Jowitt's Dictionary of English Law (2nd Ed), under 'Bias' at p 210.”

(iii) in Wong Kie Chie & Ors v Katheryn Ma Wai Fong & Anor and other appeals [2017] 3 MLJ 350 (CA) Vernon Ong JCA (now FCJ) warned against judge - shopping: “[41] Accordingly, judges should balance properly their competing duties as judges when recusal applications fall to be decided by them. Settled principles dictate that judges have a duty to sit and adjudicate on cases allotted to them, displaced only when there are objectively justifiable grounds for recusal, that litigants cannot judge-shop and judges cannot case-shop and that the administration of justice is served as much by a fearless and confident Judiciary as by a fair Judiciary (Inappropriate Recusals).” 20

(iv) in Comsa Farms Bhd v Malaysian Assurance Alliance Bhd (no. 1) [2012] 10 MLJ 526; [2012] 3 CLJ 724, the Court stated that recusal applications made in a cavalier manner may attract the jurisprudence relating to contempt. The Court also stated: “[11] …….

Generally, judge's finding made according to law in a particular suit cannot be a ground for a recusal application in other suits. I am in total agreement with submission of learned counsel for the plaintiff, Chevalier Ambiga Sreenevasan, that to justify disqualification or recusal, the judge's bias usually must be personal or based on some extrajudicial reason. Support for the proposition is found in a number of cases. To name a few are as follows:

in Locabail and Another v Timmins Gormley and Others [2000] QB 451, the English Court of Appeal had this to say: It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided We cannot however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means of sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge's social or educational or service or employment background or history nor that of any member of the judge's family, or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports 21 or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitors or advocates engaged in a case before him; or membership of the same Inn, circuit. Local law society or chambers (KFTCIC v Jcori Estero Sp A (Court of Appeal of Paris, 28 June 1991, International Arbitration Report Vol 6M 8/91).

(ii) The Locabail test has to be qualified by what was said by Justice Augustine Paul in the case of Mohamad Ezam Mohd Nor & Ors v Inspector General of Police [2001] 2 ML J 481. The learned judge had this to say: 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 of duty for a judge to disqualify himself when there are no grounds.”(own emphasis) [33] Before delivering the above scorching reminder of a judge’s duty, Augustine Paul J (as His Lordship then was) in Mohamad Ezam Mohd Nor & Ors v Inspector General of Police [2001] 2 ML J 481 explained at pp 499, 500: “..A judge in deciding a case, is merely carrying out a constitutional function entrusted upon him by the Yang di-Pertuan Agong. The decision made is based on admissible evidence and the arguments advanced by the parties. A judge has no interest in the outcome of his judgment. Any attempt made to hold a judgment against the decider whether directly or indirectly, explicitly or implicitly or even dressed and fashioned as a perception will strike at the very core of the administration of justice and lead to the destruction of the independence of the judiciary. As lyer's Law of Contempt of Courts says at p 683: 22 By the very nature of his work a Judge has to decide matters against one or other of the parties. If the fact that he renders a decision which is resented by a litigant or his lawyer were to expose him to such risk, it will sound the death knell of the institution. As observed by Wilmot J in R v Almon (1765) Wilm 243 at p 255: The arraignment of the justice of the judges, is arraigning the King's justice; it is an impeachment of his wisdom and goodness in his choice of his judges and, excites in the mind of his people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them; and whenever men's allegiance to the law is so fundamentally shaken, it is the most fatal an most dangerous obstruction of justice... In fact, questioning the competence of a judge to hear a particular case on account of his standing in the judicial hierarchy amounts to casting an aspersion on the appointing authority (see Devi & Ors v State (1963) 1 Cri LJ 543). It is the bounden duty of all concerned, including the Bar Council to protect the judiciary from such onslaughts. Be that as it may, fair criticism of a judgment is a part of the judicial process. A court cannot claim to be always right and must accept criticisms. As Hidayatullah CJ said in RC Cooper v Union of India (1970) 2 SCC 298 at p 301: There is no doubt that the court like any other institution does not enjoy immunity from fair criticism. This court does not claim to be always right although it does not spare any effort to be right according to the best of the ability, knowledge and judgment of the judges. They do not think themselves in possession of all truth or hold that wherever others differ from them it is so far error. No one is more conscious of his limitations and fallibility than a judge but because of his training and the assistance he gets from learned counsel, he is apt to avoid mistakes more than others. We are constrained to say also that while fair and temperate criticism of this court or any other court even if strong, may not be actionable, attributing improper motives, or tending to bring judges or courts into hatred and contempt or obstructing directly or indirectly with the functioning of courts, is serious contempt of which notice must and will be taken. Respect is expected not only from those 23 to whom the judgment of the court is acceptable but also from those to whom it is repugnant. Those who err in their criticism by indulging in vilification of the institution of courts, administration of justice and the instruments through which the administration acts, should take heed for they will act at their own peril. A criticism can be said to be fair, even if wrong, if it is based on a legal analysis of the issues decided in a case, it is superfluous to state that this necessitates a perusal of the judgment. Sadly, criticisms of judgments are not fair in all cases. In some cases, they may be done without a perusal of the judgment and may even be made for an improper motive. A criticism cannot be fair when it is built upon facts which are not truly stated (see CS Appa v MP Maricar AIR 1918 LB 36 (2)). It will also be so when it is based mostly on surmises or unauthorized versions furnished by interested parties….” Decision [34] Having regard to the breadth of the law encapsulated in the above cases in mind, whilst I accept that it is unfortunate that such application for recusal has been made, I must examine the grounds for recusal objectively as each application turns on the facts and circumstances of each particular case. The critical question here is, considering all the circumstances, do reasonable grounds exist for my recusal? [35] The Plaintiff’s complaint really boils down to the 3 Actions being inter-related; my findings in the Setia Haruman OS will give rise to a perception of bias on my part, when hearing the Menara Embun OS and Modern Eden OS as the evidence to be adduced, and legal points to be raised in the Menara Embun OS and Modern Eden OS, are similar to the evidence adduced and legal points raised in the Setia Haruman OS; there is present therefore a “real danger of bias”. In short, I ought not to have handed down a decision in the Setia Haruman OS before hearing the 24 Menara Embun and Modern Eden Actions. The Defendants however submitted that based on the facts and authorities, it is clear that this argument does not constitute a real danger of bias. [36] In tandem with Wong Chee Lin J’s intention or direction to have trial of the Menara Embun and Modern Eden Actions after the cross-examination in the Setia Haruman OS, this Court did fix cross-examination dates for 17th to 19th March 2021 and the Menara Embun and Modern Eden Actions for trial together from 5th to 8th April and 12th to 15th April

It has to be borne at the forefront of the mind that during case management on 16.3.21, a day prior cross examination proceeded in the Setia Haruman OS, parties were all already aware that the trial of the Menara Embun and Modern Eden Actions will not proceed for the reasons stated at paragraph 14 of this judgment. This Court stated that trial dates for the Menara Embun and Modern Eden Actions will be given at the end of the week after completion of the cross-examination. [37] Of significant importance, the Plaintiff did not apply for a stay of the cross-examination which, in the event, proceeded on 17.3.21 and concluded on 19.3.21. [38] In my respectful view, on conclusion of any proceedings, handing down a decision is a pragmatic matter of course. [39] In this particular case, whilst the intention was to have the Menara Embun and Modern Eden Actions tried after the Setia Haruman OS, it was not to be and went off the rails - due to no one’s fault (TMSK as 2nd Defendant was already hospitalised due to organ failure and scheduled for surgery; 3rd Defendant who had surgery and was on 3 month’s medical leave). 25 [40] I was fully cognizant of the fact that the Setia Haruman OS had been in the court’s docket since 2017. That is not all. Taking into account:

the uncertainty as to when the Menara Embun and Modern Eden Actions can be concluded;

(ii) that Wong Chee Lin J, did not categorically state that decision in all 3 suits will be rendered together;

(iii) the requirement of a judge to comply with the Judges’ Code of Ethics 2009 at pain of disciplinary proceedings in which paragraphs 7 (4) and 7(7) with regard to the efficient administration of justice, mandates that a judge shall “dispose of all his judicial duties fairly, efficiently, diligently and promptly” and “endeavour to diligently and efficiently hear and complete the cases in his court and promptly write his judgments”; and

(iv) Section 23 (3) of the Judicial Appointments Commission Act 2009 relating to “a serving judge or judicial commissioner must not be appointed if he has three or more pending judgments or unwritten grounds of judgments that are overdue by sixty days or more from the date they are deemed to be due”; I had directed parties to sort out the transcript of the cross-examination proceedings, file their submissions and fixed 4.6.2021 for clarification/decision. 26 [42] As I needed more time to consider before handing down a decision, the decision was adjourned from 4.6.2021 to 25.6.21. In the meanwhile, since there was no application for stay of the decision in the Setia Haruman OS pending the hearing of the Menara Embun and Modern Eden Actions, these Actions were case managed for suitable dates for trial, as alluded to in paragraphs 17 to 19 of this judgment. [43] In the instant case, to recapitulate, the Plaintiff wanted all 3 Actions heard by the same Court to avoid inconsistent decisions by two different courts of co-ordinate jurisdiction. Although the Plaintiff did not succeed in his transfer application, the Setia Haruman OS was administratively transferred to this Court. The Defendants postulated that the Plaintiff’s contention that Wong Chee Lin J ruled that the “3 Suits be heard one after the other before any decision is made” is erroneous, misconceived and that there was no such ruling. On this point, I share the Defendants’ view. The passage on what Wong Chee Lin J said as produced in paragraph 11 of this judgment in my respectful view was overstretched. From my reading of the passage, the Setia Haruman OS was to be heard separately from the Menara Embun and Modern Eden Actions but that the matters would be heard one after the other to ensure that they are heard by the same Judge so the decision in all 3 Actions will be consistent [44] Whilst there is a common issue of the “Understanding” and “New Board Understanding” between the Plaintiff and TMSK in all 3 Actions, Impresive Circuit as the plaintiff in the Setia Haruman OS is not a party in the Menara Embun and Modern Eden Actions, UEM Land Berhad and 27 Virtual Path Sdn Bhd who are the shareholders of Setia Haruman and the four (4) Directors of Setia Haruman all named as defendants in the Setia Haruman OS are not parties in the Menara Embun and Modern Eden Actions. In my utmost humble and respectful view, the complaint of oppression in the Menara Embun and Modern Eden Actions can be heard and decided separately on their respective pleadings, own facts and evidence. Whether or not there was oppression in the Menara Embun and Modern Eden Actions was for the Plaintiff to prove; and any decision thereafter must be based strictly on the evidence presented by the Plaintiff and the defence if any put up by the Defendants. In regard to this, I have no doubt whatsoever that I will abide by my constitutional oath and duty to adjudge the issues in the Menara Embun and Modern Eden Actions impartially. [45] It is also well established that a Judge’s decision which does not favour a litigant cannot be used as a reason to recuse the Judge as a matter of right or to move the case to another Court. In Residence Hotel and Resorts Sdn Bhd v Seri Pacific Corp Sdn Bhd (supra), the High Court held as follows: “(4) A judge’s decision which does 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 loosing party is not satisfied with the decision. 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.

Preconceived opinion by a judge do 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 will still be based and decided on the evidence and 28 material produced or presented before the court and not on conjecture or speculation. There must be a strong foundation or ground for supposing that the judge or judicial officer had so acted in such unjudicial fashion that he cannot be expected fairly to discharge his judicial function and duty.” [46] In Menteri Hal Ehwal Dalam Negeri v Raja Petra Raja Kamarudin & Another Appeal [2009] 4 MLJ 484; [2009] 3 CLJ 513 at pg 49, the Court stated as follows: “...a judge is not precluded from hearing a case against a person when he had in the past heard another case against the person if the facts in the cases are different.” [47] In Wong Kie Chie & Ors v Kathryn Ma Wai Fong (supra), the Court of Appeal stated that: “[37] … 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…” [48] In the Comsa Farms case, it was stated: “[11] ……………

Generally, judge's finding made according to law in a particular suit cannot be a ground for a recusal application in other suits. I am in total agreement with submission of learned counsel for the plaintiff, Chevalier Ambiga Sreenevasan, that to justify disqualification or recusal, the judge's bias usually must be personal or based on some extrajudicial reason. 29 [49] I have no direct pecuniary or proprietary interest in the subject matter of the Menara Embun and Modern Eden Actions. The imputation of apparent bias on my part on the facts as obtained here, are not sufficient to merit a recusal. I am sworn and bound solemnly to administer impartial justice. It cannot be gainsaid that a judge should maintain an even and impartial hand between all litigants whose interests are tied up in the case before him/her and he/she should have no leaning for or against any individual whatsoever. As said by the philosopher William Penn, “Justice is justly represented blind, because she sees no difference in the parties concerned. She has but one scale and weight, for rich and poor, great and small." [50] I had considered, nay, agonised over the fact that my presiding over the Menara Embun and Modern Eden Actions should at all cause disquiet, distress and discomfit to any of the litigants, but, based on the facts of this case, I am respectfully of the opinion that there is no evidence to suggest that I cannot be expected to discharge my judicial functions and duties fairly. Indeed in the Hock Hua Bank case, the Court of Appeal in directing the learned High Court Judge to hear the matter, held it was wrong for him to recuse himself when the grounds for recusal have not been satisfied. In that case, the learned High Court Judge acceded to the defendants’ request to recuse as His Lordship “do not wish to be saddled with those allegations while hearing the case at the trial”. I also find support in Comsa Farm case (supra) - “To justify disqualification or recusal, the judge’s biasness usually must be personal or based on some extrajudicial reason.” [51] In my utmost respectful view, to readily on the totality of the facts here, grant the recusal application when there are no grounds to do so, 30 will in the fiery words of Augustine Paul J, in the case of Mohamad Ezam Mohd Nor & Ors v Inspector General of Police (supra) be “wrong” and a “gross dereliction of duty” to disqualify myself. [52] It has weighed on me and given me food for thought whether the Plaintiff’s application smacks of an afterthought. Knowing on 16.3.2021 that the Menara Embun and Modern Eden Actions would not proceed, the Plaintiff, if in fact serious about his misgivings, yet through the same counsel and solicitors participated in the cross examination from 17.3.2021 to 19.3.2021 and filed submissions in the Setia Haruman OS, as well as attended the subsequent case managements to fix new trial dates for the Menara Embun and Modern Eden Actions. The situation would have been clearly different if the Plaintiff and/or Impresive Circuit had applied for a stay of proceedings of the Setia Haruman OS or applied to stay the decision. By not doing so, enfeebled and abdicated the right to now complain. On hindsight, it forced the burning question whether the recusal application would be filed if the decision in the Setia Haruman OS was in Impresive Circuit’s favour? I tend to think, NO! [53] The Court has to be vigilant of judge-shopping pure and simple by a sidewind. Suffice it for me to say respectfully that on the totality of facts and circumstances of this case, there is no substantive basis to support the Plaintiff’s claim of a real danger of bias to merit my recusal. [54] I do not think that public confidence in the judiciary will be better served by my withdrawing from the case. In a situation such as the present, the law says I owe my allegiance to a higher cause - to protect the integrity of the judicial process. 31 [55] I have considered all the arguments of the parties before coming to my decision. I have not specifically dealt with each of them here to avoid a lengthy judgment. [56] For the reasons given, I am impelled to conclude that there is no real danger of bias. As such, I decline to recuse myself. The applications in Enc. 284 in the Menara Embun OS and Enc. 267 in the Modern Eden OS are dismissed with costs. Dated: 14th December 2021 -sgd- ……………………….. Liza Chan Sow Keng Judicial Commissioner High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiff : Datuk Ambiga Sreenevasan, Owee Chia Ming, Ranjit Singh, Shermaljit Singh, Shereen Selvaratnam & Anisha Sundramurthy Messrs Owee & Ho For the 1st & 5th : Eric Clement Defendants Messrs Abd Halim Ushah & Associates For the 2nd, 3rd & 4th : Datuk Sri Gopal Sri Ram Defendants Dato’ Pathmanathan & Shirin Pathmanathan Messrs M Pathmanathan & Co 32 CASES REFERRED: Impresive Circuit Sdn Bhd v Setia Haruman Sdn Bhd & Ors [2019] MLJU 1862 R v Gough [1993] 3 All ER 724 Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1; [1999] 3 CLJ 65 Ding Huong Mieng v Lau Cheng Kiong & Anor [2020] 1 LNS 405 Masyitah Md Hassan v Sakinah Sulong & Anor [2021] 1 LNS 638 PP v Tengku Adnan Tengku Mansor [2020] 9 CLJ 30 Menteri Hal Ehwal Dalam Negeri v Raja Petra Raja Kamarudin & Another Appeal [2009] 4 MLJ 484; [2009] 3 CLJ 513 Comsa Farms Bhd v Malaysian Assurance Alliance Bhd (no. 1) [2012] 10 MLJ 526; [2012] 3 CLJ 724 Wong Kie Chie & Ors v Kathryn Ma Wai Fong [2017] 3 MLJ 350; [2017] 4 CLJ 70 Hock Hua Bank (Sabah) Berhad v Yong Liuk Thin & 7 Ors [1995] 2 CLJ 900 Allied Capital Sdn Bhd v Mohamed Latiff bin Shah Mohd and Another Application [2001] 2 MLJ 305 Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara [2002] 1 MLJ 321; [2001] 4 CLJ 701 Porter and another v Magill [2002] 1 All ER 465 Dato’ Tan Heng Chew v Tan Kim Hor [2006] 2 MLJ 293; [2006] 1 CLJ 577 Che Minah bt Remeli v Pentadbir Tanah, Pejabat Tanah Besut, Terengganu & Ors [2008] 5 MLJ 206 33 Residence Hotel and Resorts Sdn Bhd v Seri Pacific Corp Sdn Bhd [2014] 10 MLJ 413 Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin & Ors [1995] 2 MLJ 213 Mohamad Ezam Mohd Nor & Ors v Inspector General of Police [2001] 2 MLJ 481 STATUTE/LEGISLATION REFERRED: Section 346, Companies Act 2016 Order 4, Rules of Court 2012