KAMARUDDIN BIN ABD RAHIM v Pendakwa Raya (AA-44-68-12/2021)

The Applicant was charged with the murder of Ng Yeong Chian on 20 11 September 2017 under section 302 Penal Code in the High Court at Ipoh AA-45B-5-04/2018. In the course of his trial (“Criminal Trial”), on 19 January 2022, the Court dismissed the application by the Applicant to inter alia recuse the trial judge (“19 January Recusal Decision”). More than four months later, on 31 May 2022 the Applicant filed his notice of appeal seeking to 25 appeal against the 19 January 2022 Recusal Decision. This is the grounds for the decision made. In this grounds of judgment, the Applicant is both referred to as the Applicant as well as the accused. 30

The Criminal Trial on the murder charge commenced on 13 May 2019 35 before Mohd Radzi Harun JC (now J). After 12 witnesses had been called by the prosecution, Su Tiang Joo JC (or referred to as “this Court” as the case may be) continued with the trial on 21 September 2020 until the prosecution closed its case on 7 October 2020. 40 [3] From 21 September 2020 until the close of the prosecution case, six further prosecution witnesses gave evidence. Thereafter, closing written submissions were filed by the both the prosecution and the defence and it was for this Court to carry out a maximum evaluation of the evidence to ascertain whether the prosecution had made out a prima facie case, see 45 subsection 180 (1) Criminal Procedure Code (“CPC”). In Looi Kow Chai & Anor v PP [2003] 1 CLJ 734 the Court of Appeal held that: “[3] Under s. 180 of the Criminal Procedure Code (Revised 1999), the duty of a judge, sitting alone, at the close of the case for the prosecution, is to determine, 50 as a trier of fact, whether the prosecution has made out a prima facie case against the accused. The judge has only one exercise to undertake; he must subject the evidence of the prosecution to a maximum evaluation and then ask himself this question: If I decide to call upon the accused to enter on his defence, and he elects to remain silent, am I prepared to convict him on the 55 totality of the evidence contained in the prosecution's case? If the answer is in the negative, then no prima facie case has been made out, and the accused is entitled to an acquittal.”

In the course of subjecting the evidence to maximum evaluation, this 60 Court wanted to recall four witnesses namely Keng Meng Soon (SP7), as 3 well as Zahari Bin Hashim (SP9), Nur Akma Binti Kamal (SP10) and Siti Khalijah Binti Abd Shukor (SP11) who had given evidence before 21 September 2020, and whom this Court did not have the audio visual advantage of seeing them testify in person. 65

It has long been held that “the credibility of a witness is primarily an issue within the domain of the trial judge who has the audio visual advantage in assessing the witness”, see Zaifull Muhammad & Anor v. PP [2012] 1 LNS 1430 at para [18] with reference made to the Federal Court cases of 70 Lai Kim Hon & Ors v. PP [1980] 1 LNS 197; [1981] 1 MLJ 84 and Herchun Singh & Ors v. PP [1969] 1 LNS 52; [1969] 2 MLJ 209).

Section 425 CPC which is reproduced below provides that any Court may at any stage of any trial recall and re-examine any person already 75 examined: “425 Any Court may at any stage of any inquiry, trial or other proceeding under this Code summon any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re- 80 examine any person already examined, and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.” (emphasis added) 85 [7] It cannot be gainsaid that it is settled law that each case must be decided in the light of its own facts and circumstances. If at all an authority is to be cited for this trite proposition, see Public Prosecutor v Dato Yap Peng [1987] 2 MLJ 311 where Abdoolcader SCJ had quoted with approval 4 from the speech of Lord Pearce given in Liyanage & Others v The Queen 90 [1967] 1 AC 259 (PC).

The Applicant took up a preliminary point that whilst conceding that 95 normally a case for recusal is made before the same Judge and that this Court has the right to hear the application, learned counsel for the Applicant nevertheless prayed for the application to be heard before another Judge premised upon the principle that justice must be seen to be done. The prosecution took the position that this Court could hear the application but 100 left it to the Court to decide.

It behoves every judge to be conscious of his constitutional oath of office, see Glomac Resources Sdn Bhd v Majlis Agama Islam Wilayah Persekutuan & Anor [2016] 9 MLJ 584; [2016] 5 CLJ 590 (HC), and the 105 Court should be vigilant not to allow parties to do judge shopping by recusal of judges, see Comptroller of State Sales Tax, Sarawak v Petroliam Nasional Bhd (Petronas) [2020] 8 MLJ 141 (HC) para [24]. Mindful of the same, this Court had rejected the preliminary point and proceeded to hear the application on its merits. 110

The defence in his written submissions (Enclosure 8 at para 8) asserted that: “….there is no doubt, knowing Your Lordship’s style that Your Lordship 115 would have read and familiarized yourself with the Prosecution’s case 5 and therefore would have read the whole of the evidence of each of the four (4) witnesses which are SP7, SP9, SP10 and SP11”

Continuing from there, in summary, the Applicant asserted that this 120 Court should not recall the four witnesses because to his mind, with this Court having read the evidence, he was of the view that this Court would have known of the prosecution’s infirmities and the recall and re-examination of these four witnesses may result in these alleged infirmities being made good. 125

Learned counsel for the defence then cited this Court’s decision in the case of Mohd Zaharani bin Harun v Public Prosecutor where the accused who worked in the planning department of Majlis Perbandaran Manjung, Perak had been found guilty after a trial in the Sessions Court of two charges 130 of cheating and dishonestly inducing delivery of a sum of RM44,949.15 and sentenced to two terms of five years of imprisonment to run concurrently and one stroke of whipping. Upon appeal to this Court, the appeal was dismissed with the full grounds of judgment published as Mohd Zaharani bin Harun v Public Prosecutor [2021] 1 LNS 840; [2021] MLJU 940. Dissatisfied, upon 135 appeal to the Court of Appeal, his appeal to the Court of Appeal was allowed on 1 December 2021 and learned counsel for the Applicant lamented that it is most unfortunate that the CA has not handed down its grounds of judgment. 140 [13] The accused (Enclosure 8 para 11 and 20) then urged this Court to reconsider this Court’s intention to recall the four witnesses, SP7, SP9, SP10 and SP11. And, in the event this Court does not wish to reconsider, the defence sought for Su Tiang Joo JC to recuse himself from continuing to 6 hear the Criminal Trial or if the four witnesses are to be recalled, that Su 145 Tiang Joo JC, consider on his own motion to: “ …. let the matter be heard by another judge either as continued hearing or denovo (sic) as the new Judge would wish.” 150 Prosecution’s Position

The prosecution opposed the application and through the learned deputy public prosecutor, Mohd Fitri Bin Sadarudin, filed an affidavit in opposition (Enclosure 4). He averred that: 155 i) the four witnesses sought to be called are important witnesses; ii) these four witnesses had given evidence before the previous trial Judge, Mohd Radzi Bin Harun JC (now J) and therefore this Court did not have the opportunity to see them give evidence; 160 iii) the application to recuse this Court is pre-mature because the four witnesses have yet to be re-examined and therefore how could the defence know whether the further evidence would assist the prosecution or otherwise; iv) the defence’s assertion that he might not obtain justice from this 165 Court is wholly baseless as the decision to recall the four witnesses is premised upon the law; and v) justice is not only for the Applicant but also for the deceased in the Criminal trial or in other words, for the public or the nation, whom the prosecution is bound to serve. 170

In his oral submissions, the learned deputy public prosecutor submitted that the provisions of the law in section 425 CPC are clear. In this section, it is clearly provided that if it appears to the Court that it is essential to the just decision of the case, the Court may at any stage of the trial recall 175 any witness. The discretion vests upon the Court.

The law on recusal has, with respect, been comprehensively dealt with 180 by the Federal Court in PP v Tengku Adnan Tengku Mansor [2020] 9 CLJ 30 with the test being the real danger of bias and Nallini Pathmanathan FCJ, said at paras [14] to [17] that: “[14] What does 'real danger of bias' mean? In explaining this Lord Goff 185 stated inter alia: ... In my opinion, if, in the circumstances of the case (as ascertained by the court) it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or 190 other member of an inferior tribunal, justice requires that the decision should not be allowed to stand. ... Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter 195 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 not necessarily be available to an observer in court at the relevant time Finally for the 200 avoidance of doubt, I prefer to state the test in terms of real danger 8 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, 205 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... (emphasis added) 210

In Sungai Gelugor* Edgar Joseph Jr FCJ explained that with this test, the opinion of the court substituted that of the reasonable man. Secondly, the real danger test he said, was a reasonable compromise between the 'reasonable suspicion' and 'real likelihood' of bias test meaning that the court 215 was contemplating a lower standard than that a likelihood or probability of bias. It required a 'real possibility of bias'. It is important to comprehend that this court did not state that it was imposing a 'very low' threshold.

Equally importantly the judge went on to state that this was the preferred 220 test as it would avoid the setting aside of judgments upon "quite insubstantial grounds and the flimsiest pretexts of bias.”

And in Tan Heng Chew** the Federal Court speaking through Hamid Mohamed FCJ (later CJ) held that even though R v. Gough had been refined 225 in the UK in Porter v. Magill [2002] 1 All ER 465, this was to ensure the law was in line with European jurisprudence, which was not applicable in Malaysia. More significantly, the court held that it was incumbent upon the court to be vigilant not to allow parties to engage in 'judge-shopping' under the guise of recusal applications. More significantly, the court held that it 230 was incumbent upon the court to be vigilant not to allow parties to engage in 'judge-shopping' under the guise of recusal applications.” (emphasis added) * Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1 FC. 235 ** Dato’ Tan Heng Chew v Tan Kim Hor & Another Appeal [2006] 1 CLJ 577 FC.

See also the comprehensive judgment of Evrol Mariette Peters JC (now J) in Masyitah Md Hassan v Sakinah Sulong (Defendant) and 240 Imelda Nasreen Nasruddin @ Balchin (Putative Contemnor) [2021] 1 LNS 638 (HC).

In this recusal application, the Applicant had in summary postulated three disjunctive reliefs sought (Enclosure 8 para 20) viz.,: 245 i) that this Court reconsider its decision to recall the four witnesses; ii) that Su Tiang Joo JC consider recusing himself; or iii) that Su Tiang Joo JC recuses himself if the four witnesses are 250 recalled.

Over the years, the quality of the audio visual recordings which used 255 to be grainy and blur has improved tremendously with the advent of digital technology.

There has been great technological advances in how cases are heard and evidence taken and the judiciary has kept pace, see Liziz Plantation v. 260 Liew Ah Yong [2020] 10 CLJ 94 where this Court said at paras [43] to [47]: “[43] In any event, with the experience gained in using remote communication technology in dealing with the movement control order, conditional movement control order and the recovery movement control order that is extant and which were necessitated by the COVID-19 265 pandemic, the physical location of any one litigant or witness and the issue of having to physically travel to any court has become very much less important.

The need for counsel, litigants and witnesses to physically travel to the 270 court for the hearing of their matters is getting less and less. Hearings and meetings can now be done and are, by reason of the COVID-19 pandemic, encouraged to be done electronically via a variety of internet platforms such as "Zoom" or "Skype" not to mention that there are other platforms as well such as "Google Duo", "Google Hangouts", "MS Teams" and "Adobe 275 Connect".

In fact, with the aid of video conferencing and given the restrictions in air travel caused by the COVID-19 pandemic, you can, for example, have a court sitting in the British Virgin Islands ("BVI") conducting a trial with 280 participation by counsel from the United Kingdom, solicitors from Singapore and Hong Kong and witnesses from Hong Kong, Australia and Malaysia all from the comfort of their respective offices or homes without having to fly out to the court in the BVI. If this can be done across countries, what more is to be said about the importance and necessity, if any, of litigants and witnesses 285 residing in Malaysia having to be physically present in a particular branch of the High Court in Malaya.

The Malaysian courts have kept up with the march of technology. Case management of cases by way of e-reviews is widely used and paperless 290 hearings with the aid of technology in the Federal Court has commenced this year.

The first virtual hearing with the parties being not physically present in court was conducted by the Court of Appeal via tele-conferencing on 23 April 295 2020 and live-streamed to the public with the three learned judges comprising the panel of the Court of Appeal hearing the matter seated separately in each of their chambers/homes and learned counsel for the parties seated in their own respective office/home.” 300 [21] In the speech by The Right Honourable The Chief Justice of Malaysia, Tun Tengku Maimun Binti Tuan Mat, on the occasion of the Opening of the Legal Year 2022 ‘Access To Justice And The New Normal” on 14 January 2022, Her Ladyship said inter alia that while the pandemic brought about by COVID-19 has largely been debilitating, the reforms that judiciary has 305 introduced has played a significant role in accelerating modern technological advancements and innovation at an unprecedented level with virtual Courts having now becoming an indelible aspect of our system of advocacy and in terms of access to justice, the Judiciary has invested a greater amount in technology in terms of hardware and software with the Recording & Voice to 310 Text (‘RVT’) System replacing the old Court Recording Transcription (CRT’).

The evidence of all the four witnesses have been recorded. The advantage of an audio visual recording is that it can be played and replayed umpteen times. 315

Besides reading the cold print of the evidence of the four witnesses sought to be recalled, this Court had on more than one occasion played the audio visual recording of them giving evidence and having satisfied itself as to the quality of the audio visual recording and having duly reconsidered its 320 position on recalling the four prosecution witnesses as prayed by the defence, this Court decided not to recall any of them. This turned out to be 12 in accord with the defence’s primary position in his submissions (Enclosure 8 para 20). 325 [24] That would have been sufficient for disposing of the Application.

Nevertheless, for the sake of completeness, this Court would also deal with the application for recusal. 330 Recusal

This Court bears in mind the sound advice given by The Right Honourable Chief Justice of Malaysia Tun Tengku Maimun Binti Tuan Mat given during the Opening Of The Legal Year 2002 where Her Ladyship said: 335 “To judges, I would say this. The work of a judge is daunting. Instead of brooding over what others think and say of you, you should rather channel your time and energy to strive and work hard – to dispose of cases and write grounds of judgment on time.” 340

As for lawyers, it would not be out of place to remind them that courtesy and candour is the cornerstone of the honourable legal profession.

In the considered view of this Court, the reliance by the Applicant upon 345 the authority of Mohd Zaharani bin Harun v Public Prosecutor (supra) is with respect, wholly misplaced. In Mohd Zaharani bin Harun(supra), the appellant was an Assistant Engineer at Majlis Perbandaran Manjung, Perak. At the conclusion of his trial in the Sessions Court, he was convicted of both 13 charges and sentenced to five years imprisonment for each charge with both 350 sentences of imprisonment to run concurrently. He was also sentenced to one stroke of whipping. In summary, the charges were for inducing an individual to hand over to him RM44,949.15 and giving a planning payment receipt which turned out to be false. During the hearing of his appeal this Court sat and deliberated without any witnesses called or recalled and 355 references were made to the evidence led as contained in the appeal record. A speaking judgment contained in the grounds of judgment was put up and since published (supra). On the other hand, in this case, at the time of the application for recusal, the trial has yet to be concluded. Instead, this Court was in the process of giving a maximum evaluation of the evidence and in 360 undertaking the task, this Court had felt that it might be helpful to have the audio visual benefit of seeing these four witnesses.

The reliance by the Applicant on the case of Zainur Zakaria v PP (supra) suffers from the same malady in that the witnesses been examined 365 and it was the manner of the examination that was in issue. In this case, the four witnesses have not even been re-examined and therefore, there is no issue at all to be taken on the manner of re-examination.

The Applicant’s supposition that by recalling the four witnesses will 370 prejudice him having a fair and independent trial when such a power is expressly provided by law is wholly groundless and his recusal application fails in limine. 375

Wherefore, the Applicant’s application was dismissed with a date 380 suitable to both the prosecution and the defence to be fixed for the oral presentation of closing submissions at the close of the prosecution’s case and the ruling to have the four witnesses, SP7, SP9, SP10 and SP11 recalled revoked. 385 Epilogue

Immediately after the decision dismissing the application for recusal, learned counsel for the defence proceeded to pray for a date for the continued trial of the murder charge against the accused in AA-45B-5- 390 04/2018. The date of 27 January 2022 which was suitable for both the accused and the prosecution was fixed with the hearing scheduled to commence at 2:15 PM at the request of learned counsel for the defence.

On 27 January 2022, both the prosecution and the defence were 395 content to rely upon their respective written submissions, and the case was stood down for decision.

There was not a peep that the accused was dissatisfied with the 19 January 2022 Recusal Decision, let alone, wanting to appeal against it. 400

After having had subjected all the evidence led to maximum evaluation including invoking the aid of audio visual recordings, this Court found that a prima facie case had been made out by the prosecution.

The accused was duly informed of his rights, and with the Court 405 satisfied that his learned counsel had ensured that the accused understood and appreciated the three options available to him, the accused after conferring with his counsel, elected to give sworn testimony.

Upon a request made by Mr. Gurbachan Singh a/l Bagawan Singh for 410 assistance to facilitate his access to the accused who is being detained in prison pending trial to take instructions to prepare for his defence, this Court called upon the learned deputy public prosecutor to render assistance and to cooperate with the learned counsel for the accused. The learned deputy public prosecutor graciously agreed. 415

On the 27 January 2022 itself after delivering this Court’s decision at the end of the prosecution’s case, common dates suitable for both the defence and the prosecution, namely, 30 March 2022 and 31 March 2022 were then fixed for the accused to enter on his defence. 420

Both the learned deputy public prosecutor and learned counsel for the defence duly attended together with the accused on 30 March 2022 for continued trial. 425 [40] However, due to a personal emergency involving the learned deputy public prosecutor, the latter sought an adjournment of the hearing scheduled for 30 March 2022. To this, the defence had no objections, but learned counsel for the defence also sought for following trial date of 31 March 2022 to be vacated as well as he would be involved as a witness in a Civil Suit 430 involving his family in the High Court in Kuala Lumpur.

To be fair to both parties, this Court acceded to the request by both the learned deputy public prosecutor and counsel for the defence. 435 [42] Again, there was nary a word about the accused being dissatisfied with the 19 January Recusal Decision.

Conscious that this is a 2018 matter and despite efforts to have earlier trial dates fixed, the next earliest available common dates that could be found 440 suitable for both the learned counsel for the accused and the learned deputy public prosecutor, were on 31 May 2022, 17 June 2022 and 21 June 2022.

On 31 May 2022, when the case for the continued trial was called up for continued trial, the Court was informed by Mr Gurbachan Singh a/l 445 Bagawan Singh, who is an assigned counsel (i.e. one assigned by the Courts on a rotational basis and remunerated with public funds) that the Applicant was desirous of appealing against the 19 January Recusal Decision. He sought for a short postponement of the trial to the next hearing date of 17 June 2022. 450

Learned counsel informed the Court that that the accused wanted to appeal the 19 January Recusal Decision and that only when he walked into Court on the morning of 31 May 2022, he was handed a letter in manuscript dated 26 May 2022 signed by the accused wherein the accused say he 455 intends to appeal to the Court of Appeal against the 19 January Recusal Decision. Apparently, learned counsel had been informed that the accused had wanted to appeal the 19 January Recusal Decision and he had advised the accused to do it through the prison authority because he would be 17 embarrassed to do it but why this was not brought up earlier on 27 January 460 2022 and 30 March 2022 is a mystery.

Learned counsel further informed the Court that he would be embarrassed in acting for the accused in the appeal and he would have no part in the proposed appeal. He asserted that because the prison authority 465 apparently did not assist the accused to file the Notice of Appeal and with the accused being still his client, he had filed a Notice of Appeal in the morning of 31 May 2022 through his law firm. He ended by saying it is for the accused to seek the services of another solicitor to prosecute his appeal. The adjournment sought was supported by the learned deputy public 470 prosecutor who said that a right to appeal is a Constitutional right and the accused who is charged with a capital offence is entitled to [resort] to every means in his defence. Whilst the defence and the prosecution may strive without fear and favour, candour is the other side of the same coin that goes hand in hand to form the cornerstone of the honourable legal profession 475 which is a major stakeholder in the administration of justice.

The hearing of the [2018] murder case against the accused was, in the circumstances, yet again adjourned and this time to enable the accused to prosecute his grievance against the 19 January Recusal Decision to the 480 Court of Appeal and on the part of the judiciary, to facilitate due process, this Court has settled this grounds of judgment expeditiously conscious that the accused remains incarcerated without bail pending the disposal of the criminal trial. 485 [48] It would not be out of place to remind all counsel and those from the prosecution that given the limited judicial time available, each unplanned 18 adjournment is at the expense of another accused or litigant waiting in line for their cases to be heard. 490 Dated: 13 June 2022 SuTiangJoo ( SU TIANG JOO ) 495 Judicial Commissioner High Court in Malaya Ipoh, Perak 500 For Applicant : Gurbachan Singh s/o Bagawan Singh [Messrs Bachan & Kartar] For Respondent : Mohd Fitri bin Sadaruddin [Prosecution Unit, Perak State Legal Advisor Offices] 505 510 [Notice: This Grounds of Decision is subject to official editorial revision] Headnotes 515 Whether with the advent of digital technology would the requirement to recall witnesses to be re-examined pursuant to section 425 Criminal Procedure Code by succeeding trial judges be diminished. 520