Suruhanjaya Sekuriti Malaysia v Tey Por Yee (WA-22NCC-625-11/2022)

TEY POR YEE (NRIC No.: 760202-14-5147)

LIM CHYE GUAN (NRIC No.: 650812-08-5391)

SEE POH YEE (NRIC No.: 761102-14-5777)

FRANCIS TAN HOCK LEONG (NRIC No.: 660425-10-7289)

FAIZATUL IKMI BINTI ABD RAZAK (NRIC No.: 800612-14-5864) … DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] Enclosure (“Enc.”) 101 is a recusal application filed by the 1st, 2nd, 3rd and 5th Defendants (respectively, “D1”, “D2”, “D3” and “D5”) to recuse me from hearing and deciding the proceedings herein on the basis that I am the trial judge of another action, Kuala Lumpur High Court Civil Suit no.: 22NCC-362-09/2014 (“Protasco Suit”) wherein D1 herein, Tey Por Yee (“Tey”), is the second defendant. [2] I had dismissed the application on 20.4.2023 and given broad grounds for my decision. This judgment contains the full reasons for my decision. Background [3] The Plaintiff (interchangeably, “the SC”) commenced the action herein in the public interest pursuant to sections 200 and 360 of CMSA against the Defendants for contravening sections 179(a) and/or 179(b) and/or 317A and/or 370(b) and/or 370(c) of the Capital Markets and Services Act 2007 (“CMSA”). [4] The SC’s claim is premised upon the Defendants’ conduct in perpetrating fraudulent schemes of similar pattern and/or features against 4 public listed companies (“PLC”), namely Nexgram Holdings Berhad (formerly known as Nextnation Communication Berhad) (“Nexgram”), R&A Telecommunication Group Berhad (“R&A”), Asdion Berhad (“Asdion”), and Ire-Tex Corporation Berhad (“Ire-Tex”) (collectively referred to as “Schemes”; and respectively, as “Nexgram Scheme”, “R&A Scheme”, “Asdion Scheme” and “Ire-Tex Scheme” in relation to the relevant PLC). [5] It was pleaded in the Statement of Claim (“SOC”) that as a result of the Schemes perpetrated upon the 4 PLCs, a total sum of RM120,600,000.00 was siphoned out of the 4 PLCs: -

5.1 In respect of Nexgram: - a. D1, D2 and D3 being directors and/or officers of Nexgram, undertook acts with the intention of causing wrongful loss to Nexgram and/or its related corporation, namely Nexgram Land, by siphoning out a total sum of RM84,900,000.00, consisting of RM43,500,000.00 from the proceeds of the Nexgram Term Loan (as defined in the SOC) and RM41,400,000.00 from the proceeds of the Nexgram Rights Issue (as defined below), in contravention of section 317A of the CMSA; b. Further and/or in the alternative, D1, D2 and D3 caused and/or facilitated the scheme to defraud and/or deceive Nexgram through the implementation of the Nexgram Rights Issue (as defined in the SOC) and/or the remittance and/or siphoning out of the proceeds therefrom in the sum of RM41,400,000.00 from Nexgram, in contravention of section 179 of the CMSA; c. D5 undertook acts in furtherance and/or in abetment of the scheme to defraud and/or deceive Nexgram and/or with the intention of causing wrongful loss to Nexgram through the Nexgram Term Loan and the implementation of the Nexgram Rights Issue and/or the remittance and/or siphoning out of RM43,500,000.00 from the proceeds of the Nexgram Term Loan and RM41,400,000.00 from the proceeds of the Nexgram Rights Issue, in contravention of section 370 of the CMSA read together with sections 179 and/or 317A of the CMSA; and d. As a result of (b) and (c), D1, D2, D3 and/or D5 directly and/or indirectly obtained pecuniary gain in various manners and/or forms from the RM41,400,000.00 being the proceeds of the Nexgram Rights Issue remitted or siphoned out.

5.2 In respect of R&A: -

D1, D2 and D4 caused and/or facilitated the scheme to defraud and/or deceive R&A through the implementation of the R&A Private Placement (as defined in the SOC) and/or the remittance and/or siphoning out of the proceeds therefrom in the sum of RM4,200,000.00 from R&A, in contravention of section 179 of the CMSA;

D5 undertook acts in furtherance and/or in abetment of the scheme to defraud and/or deceive R&A and/or with the intention of causing wrongful loss to R&A through the implementation of the R&A Private Placement and/or the remittance and/or siphoning out of the proceeds therefrom in the sum of RM4,200,000.00 from R&A, in contravention of section 370 of the CMSA read together with sections 179 and/or 317A of the CMSA;

As a result of (a) and (b), D1, D2, D4 and/or D5 directly and/or indirectly obtained pecuniary gain in various manners and/or forms from the RM4,200,000.00 remitted or siphoned out; and

Further and/or in the alternative, D2 and D4, being directors and/or officers of R&A, undertook acts and/or caused TPY’s Assistants (as defined in the SOC ) to undertake acts with the intention of causing wrongful loss to R&A through the implementation of the R&A Private Placement and/or the remittance and/or siphoning out of the proceeds therefrom in the sum of RM4,200,000.00 from R&A, in contravention of section 317A of the CMSA.

5.3 In respect of Asdion: -

D1 and D2 caused and/or facilitated the scheme to defraud and/or deceive Asdion through the implementation of the Asdion Private Placement (as defined in the SOC) and/or the remittance and/or siphoning out of the proceeds therefrom in the sum of RM15,000,000.00 from Asdion, in contravention of section 179 of the CMSA;

D5 undertook acts in furtherance and/or in abetment of the scheme to defraud and/or deceive Asdion and/or with the intention of causing wrongful loss to Asdion through the implementation of the Asdion Private Placement and/or the remittance and/or siphoning out of the proceeds therefrom in the sum of RM15,000,000.00 from Asdion, in contravention of section 370 of the CMSA read together with sections 179 and/or 317A of the CMSA;

As a result of (a) and (b), D1, D2 and/or D5 directly and/or indirectly obtained pecuniary gain in various manners and/or forms, including the benefit and/or use of the said monies, from the RM15,000,000.00 remitted or siphoned out; and

Further and/or in the alternative, D2, being an officer of Asdion, undertook acts and/or caused TPY’s Assistants to undertake acts with the intention of causing wrongful loss to Asdion through the implementation of the Asdion Private Placement and/or the remittance and/or siphoning out of the proceeds therefrom in the sum of RM15,000,000.00 from Asdion, in contravention of section 317A of the CMSA.

5.4 In respect of Ire-Tex: -

D1 and D2 caused and/or facilitated the scheme to defraud and/or deceive Ire-Tex through the implementation of the Ire-Tex ICULS Exercise (as defined in the SOC) and/or the remittance and/or siphoning out of the proceeds therefrom in the sum of RM16,500,000.00 from Ire-Tex, in contravention of section 179 of the CMSA;

D5 undertook acts in furtherance and/or in abetment of the scheme to defraud and/or deceive Ire-Tex and/or with the intention of causing wrongful loss to Ire-Tex through the implementation of the Ire-Tex ICULS Exercise and/or the remittance and/or siphoning out of the proceeds therefrom in the sum of RM16,500,000.00 from Ire-Tex, in contravention of section 370 of the CMSA read together with section 179 and/or 317A of the CMSA;

As a result of (a) and (b), D1, D2 and/or D5 directly and/or indirectly obtained pecuniary gain in various manners and/or forms, including the benefit and/or use of the said monies, from the RM16,500,000.00 remitted or siphoned out; and

Further and/or in the alternative, D1, being a director of Ire-Tex, undertook acts and/or caused TPY’s Assistants to undertake acts with the intention of causing wrongful loss to Ire-Tex through the implementation of the Ire-Tex ICULS Exercise and/or the remittance and/or siphoning out of the proceeds therefrom in the sum of RM16,500,000.00 from Ire-Tex, in contravention of section 317A of the CMSA. Common Patterns of the Schemes [6] SC claimed that the Schemes perpetrated upon the PLCs had the following common patterns and/or features: -

6.1 Acquisition or obtaining control of substantial shareholding in the PLC (except for Nexgram);

6.2 Procuring and/or obtaining appointment of representatives or nominees onto the board of directors and/or management of the PLC (except for Nexgram);

6.3 Obtaining control of bank accounts of the PLC, and/or causing new bank accounts to be set up as designated bank accounts to receive proceeds from fund-raising exercise(s) undertaken by the PLC (except for Nexgram);

6.4 Introducing, initiating and/or causing the PLC to undertake fund-raising exercise(s);

6.5 Siphoning out of the proceeds from such fund-raising exercise(s) of the PLC from the designated bank accounts not for use and/or benefit of the PLC and/or was inconsistent with the stated purposes of the fund-raising exercise(s);

6.6 Siphoning out of the proceeds from such fund-raising exercise(s) of the PLC to various Connected Companies (defined in the SOC), that are, connected to D1, D2 and/or D5. These Connected Companies are either set up or caused to be set up by and/or used or caused to be used by D1, D2 and/or D5.

6.7 Covering up of the siphoning out of the said proceeds from the fund-raising exercise(s) with sham and/or back-dated agreements, contracts and/or documents in the case of R&A, Asdion and Ire-Tex. [7] It was alleged that at all material times, D1, D2 and D5 are common to and feature in the perpetration of the Schemes in respect of all the PLCs. [8] It was further alleged that at all material times, as part of the perpetration of the Schemes in respect of the PLCs, a group of individuals who were either former or current employees of Nexgram and/or who knew D1, D2 and/or D5 personally would be involved in one or more of the following aspects/roles (“TPY’s Assistants”): -

8.1 Acting as representative or nominee director on the board of directors of the PLCs;

8.2 Undertaking roles with respect to initiating, formulating and/or facilitating the fund-raising exercises for the PLCs;

8.3 Acting as an authorised bank account signatory of the designated bank accounts of the PLCs; and/or

8.4 Setting up and/or facilitating the setting up of the Connected Companies, including acting as directors/shareholders of the Connected Companies and/or sourcing for individuals to act as directors, shareholders and/or authorised bank account signatories of the Connected Companies in receiving and/or onward remittance of monies from the PLCs. [9] It was alleged that:

9.1 D3, D4 and D5 are amongst the TPY’s Assistants. D5’s role in the Schemes was to look for and secure individuals to act as directors, shareholders and/or bank account signatories of the Connected Companies. D5 was also appointed as the bank account signatory for 2 of the Connected Companies used in the Schemes.

9.2 In consequence of the Schemes actuated upon the PLCs by the Defendants, D1, D2, D3, D4 and/or D5 directly and/or indirectly obtained pecuniary gain in respect of the monies siphoned out of the PLCs in the following manner:

9.2.1 D1, D2 and/or D3 were authorised bank account signatories of the bank accounts of one or more of the PLCs and/or its related corporations;

9.2.2 The proceeds from the various fund-raising exercises undertaken by the respective PLCs and/or monies of the PLCs were remitted or siphoned out from the bank accounts of one or more of the PLCs and/or its related corporations by D1, D2 and/or D3 as the authorised bank account signatories;

9.2.3 The proceeds from the various fund-raising exercises undertaken by the respective PLCs and/or monies of the PLCs were remitted or siphoned out to companies which were: -

Set up and/or procured to be set up by D1, D2 and/or D5;

Comprised of shareholders, directors and/or authorised bank account signatories who were: -

personally connected and/or related to D1, D2 and/or D5;

(ii) employees and/or former employees of Nexgram and/or its related corporations;

(iii) requested, procured and/or approved by D1, D2 and/or D5 to act as shareholders, directors or bank account signatories of these companies;

(iv) instructed to execute and/or perform the receipt and/or onward remittance of monies from the said companies at the instructions of D1, D2 and/or D5 and/or other individuals acting on behalf of D1, D2 and/or D5; and/or

9.2.4 Save for the sham agreements, not related to and/or had no dealings with the PLCs and/or its related corporations, (collectively referred to as “Connected

9.3 The proceeds from the various fund-raising exercises undertaken by the respective PLCs and/or monies of the PLCs were remitted or siphoned out to the Connected Companies without justification, not for use and/or benefit of the PLCs and/or which were inconsistent with the stated purposes of the fund-raising exercises;

9.4 In respect of the Scheme perpetrated against R&A, D1 and D4 entered into an agreement where the proceeds from the fund-raising exercise undertaken by R&A will be shared amongst them; and/or

9.5 In respect of the Schemes perpetrated against R&A and Ire-Tex, substantial portion of the said monies remitted and/or siphoned out of R&A and Ire-Tex to the Connected Companies were transferred to Bidang Lagenda Sdn Bhd (“Bidang Lagenda S/B”), a company which sold a building to Nexgram (the “Nexgram Building”). D1, D2, D3 and D5’s case for recusal [10] The recusal application was grounded on:

That a real danger of apparent bias arises by reason of subconscious influence of information received by me, and the impressions created in my mind, as the trial judge in the Protasco Suit to which D1 is a party (he is the 2nd defendant in the Protasco Suit);

Secondly, it is the Defendants’ position that the reverse would also be true. Information received by me as the presiding judge in the underlying claim, in interlocutory proceedings or otherwise, would have a subconscious influence and potentially impact the fair determination of the Protasco Suit. This, they allege, equally gives rise to a real danger of apparent bias. [11] Counsel for D1, D2, D3 and D5 contended that:

11.1 In the Protasco Suit, Protasco claims that:

11.1.1 D1 (Tey) had defrauded and deceived Protasco when serving as Protasco’s director (paragraphs 45 to 48, and 50 to 59, of the statement of claim);

11.1.2 D1 had done so when he was a substantial shareholder of “Nexgram Holdings Corporation Berhad” (paragraph 54(b) of the statement of claim);

11.1.3 D3 (See Poh Yee) had assisted D1 in the alleged fraud and deception (paragraph 58 of the statement of claim);

11.1.4 Augustone Cheong had also assisted D1 in the alleged fraud and deception (paragraphs 12 and 67(a) of the statement of claim); and

11.1.5 D1 was at all material times the effective beneficial owner of Acclaim Investment Limited (“Acclaim”) (paragraphs 51(e) and 59(c) of the statement of claim). This was integral to the alleged fraud and deception.

11.2 D1 denies the matters stated above. These are live issues.

11.3 As at date of the recusal application, the Protasco Suit trial was nearing completion. In the course of the trial, Protasco had called witnesses, namely Dato’ Sri Ir Choong Ket Pen (“CKP”) and Tjoe Yudhis Gathrie (“Tjoe”), who led evidence alleging:

11.3.1 D2 (Lim Chye Guan), D3 (See Poh Yee), D5 (Faizatul Ikmi binti Abd Razak) and Augustone Cheong had assisted D1 in the alleged fraud and deception; and

11.3.2 D1 had used Telecity Investments Limited (“Telecity”), Fast Global Investments Limited (“Fast Global”) and PT Nusantara Rising Rich (“PT Nusantara”) as conduits for the syphoning of monies derived from Protasco.

11.4 After closing its case, Protasco had filed a bundle of documents including, amongst others, annual reports of Asdion, and a Bursa announcement regarding the voluntary take-over offer by Nexgram for the securities of Ire-Tax.

11.5 The Defendants deny the underlying claim herein, interalia disputed that:

11.5.1 D2, D3 and D5, and Augustone Cheong, had assisted D1 in the manner alleged by the Plaintiff;

11.5.2 Acclaim, Telecity, Fast Global and PT Nusantara, are connected to the D1 in the manner alleged.

11.6 Whilst D1,D2, D3 and D5 accept that both the Protasco Suit and the underlying claim are concerned with different subject matters, there is a significant overlap in the factual assertions made by Protasco and the Plaintiff here respectively, evidential matters which I as trial judge is exposed to in the trial of the Protasco Suit have a bearing on the issues arising in the underlying claim due to serious allegations made against them of fraudulent or dishonest conduct, in one form or the other;

11.7 There is a subconscious influence of evidence in the

11.7.1 I have presided over the trial for 39 days (as of the date of filing of Enclosure 101) and during that substantial period of time, I would have been directed to and considered evidence that would have undeniably influenced me subconsciously and given rise to impressions;

11.7.2 The response of D1 in cross-examination for 8 days (as of the date of filing of Enclosure 101), when confronted with questions on fraud against him and the 3rd Defendant in that suit would have created some impression on my mind, including his credibility;

11.7.3 Such impressions are critical to the determination of a claim for fraud, which to a large extent turn on inferences and findings of credibility, citing Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 2 CLJ 321, where the Court of Appeal cited with approval the following passage in Satish Chandra v Satish Kantha Roy AIR [1923] PC 73, at p.336: “Charges of fraud and collusion like those contained in the plaint in this case must, no doubt, be proved by those who make them – proved by established facts or inferences legitimately drawn from those facts taken together as a whole …”;

11.8 The potential impact of such subconscious influence cannot be brushed aside as I have been moved by the Plaintiff to hear Enclosure 3, an application for a Mareva injunction where the Plaintiff has to rely on the allegedly fraudulent or deceptive acts on the part of the Defendants to found its contention that there is a real possibility of dissipation and I would have to draw inferences on want of probity and previous conduct of the Defendants, see S & F International Limited v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62; Menk Sdn Bhd v Joerg Hugo Schmidt [2009] 3 MLJ 205 CA;

11.9 Citing in support GetSwift Ltd v Webb (2021) 388 ALR 75, there is as such an apprehension of bias:

11.9.1 a fair-minded lay observer might reasonably apprehend that I, consciously or subconsciously, might be influenced by extraneous information from the Protasco Suit proceedings (‘extraneous information ground’);

11.9.2 a fair-minded lay observer might reasonably apprehend that, in hearing, considering, and forming views about the material in the Protasco Suit, I might have prejudged the resolution of issues common to both proceedings (‘prejudgment ground’).

11.10 Subconscious influence is a ground for recusal - Stubbs v The Queen [2018] 3 WLR 1638; GetSwift Ltd v Webb(supra) and the Defendants need only show my mind might be affected, it is not necessary to show that my mind, as a matter of fact, influenced - Lord Steyn’s observation in Lawal v Northern Spirit Ltd [2004] 1 All ER 187 (UKHL), at [14] which was cited with approval by the Federal Court in Bar Council Malaysia v Tun Dato’ Seri Arifin Zakaria & Ors And Another Reference; Persatuan Peguam-peguam Muslim Malaysia (Intervener) [2018] 10 CLJ 129, at [37] which set the context for the following observation of the court, at p.142: “[46] … Both due process and natural justice guarantee an impartial court to protect a party's right to a fair hearing. Since that right belongs to the litigants (the applicants in this case), the litigants can waive it. But rules mandating a judge’s removal for an appearance of bias do not protect the parties but instead serve to promote public confidence in judicial impartiality. In this, when a judge who possesses actual bias hears a case, the litigants sustain the injury. But when a judge suffers from only an appearance of bias, the injury is not to the parties but to the judicial system (United States v. Balistrieri, 779 F2d 1191, 1204).”

11.11 On the subject of subconscious influence, human frailty and human nature are recognised aspects of apparent bias in GetSwift Ltd v Webb at [44] and [45], judges are not passionless thinking machines or robot just assessing information at [46]; a judge might be unable to keep the evidence compartmentalised so as to not influence his decision, at [55] and the judicial oath does not avert the risk of an apparent bias at [60].

11.12 Conversely, the potential of my being subconsciously influenced when determining Enclsoure 3 might create impressions that would have a bearing on a determination of the Protasco Suit which is yet to be determined. There is a real danger that I would not be able to decide the Protasco Suit with the requisite level of impartiality if I were to have determined Enclosure 3 or any other aspect of the underlying claim before rendering my decision in the Protasco Suit.

11.13 As a result, due to extraneous matters / information received from the Protasco Suit, I ought to recuse myself as there is a ‘real danger of apparent bias’, I would not be able to determine, nor be seen to determine, Enclosure 3 with the necessary level of impartiality and this would undermine public confidence in the due administration of justice. Plaintiff’s objections to recusal [12] For the Plaintiff, in essence it was argued that: a. D1,D2,D3 and D5’s posit that there is a ‘real danger of bias’ on my part due to extraneous matters/ information received from the Protasco Suit, which would subconsciously influence me, is clearly misplaced because the Protasco Suit is a separate suit altogether from the present action involving different parties and a different set of facts and circumstances; the fact that there is an overlap as regards the factual assertions by the parties in both the Protasco Suit and the present action, particularly the assertion on fraud or collusion or dishonest conduct on the part of D1, Tey, does not in any way give rise to a ‘real danger of bias’ as both suits are matters to be determined by me based on the evidence to be adduced in the respective cases, in accordance with law, and in accord with my judicial functions; this regard, any inferences drawn must be taken only in respect of the subject matter in the particular suit; b. D1,D2,D3 and D5 are seeking to introduce a new test to be applied in the recusal application before this Court which is not the test of ‘real danger of bias’ that is recognised by our apex court as applicable and relevant in Malaysia as most recently affirmed in the case of Dato’ Sri Mohd Najib Hj Abd Razak v PP & Other Appeals [2023] 3 MLJ 40; [2022] 8 CLJ 387 and PP v Tengku Adnan Tengku Mansor [2020] 5 MLJ 220 ; [2020] 9 CLJ 30; c. The cases cited by the Defendants are premised on completely different facts; d. The case of Stubbs v The Queen [2018] 3 WLR 1638 (Privy Council from the Bahamas) is not applicable to the present case as the decision was founded on apparent bias as the test used was whether “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” and not the test of ‘real danger of bias’; e. the decision of the UK House of Lords in Lawal v Northern Spirit Ltd [2004] 1 All ER 187 is also not applicable to the present case as it relied on the test propounded in Porter and another v Magill [2001] UKHL 67 and held that the fair-minded and informed observer, having considered the given facts, would conclude that there was a real possibility that the lay member would be subconsciously biased but the Federal Court had in Dato’ Tan Heng Chew v Tan Kim Hor [2006] 2 MLJ 293 held that the developments in English law subsequent to the decision in R v Gough, including the modified test in Porter and another v Magill are not relevant in Malaysia and saw no reason to change or modify the existing test of ‘real danger of bias’; f. Similarly, the test used in GetSwift Ltd v Webb is that of the ‘fair-minded observer’ and not the test of ‘real danger of bias’ that is applicable in Malaysia; the Defendants in relying on “extraneous” circumstances have quoted from the dissenting judgment where the facts are different and even on the premise of the ‘fair-minded observer’ test; the Australian High Court in that case dismissed the allegation of any apprehension of bias on the part of the juror who presented flowers to the mother of the victim (whose murder the appellants stood trial for) and would have given a fair-minded and informed observer a reasonable apprehension that there was a lack of impartiality on the part of the said juror; g. Relied on R v Gough [1993] AC 646 (UK House of Lords); Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 MLJ 1 FC; Dato’ Tan Heng Chew v Tan Kim Hor [2006] 2 MLJ 293; [2001] 4 CLJ 701 FC on the test of ‘real danger of bias’ as being the test which would avoid setting aside of judgments upon “quite unsubstantial grounds and the flimsiest pretext of bias”; Wong Kie Chie v Kathryn Ma Wai Fong & Anor and Other Appeals [2017] 3 MLJ 350; [2017] 5 CLJ 707 CA on judges to be vigilant in preventing any attempt to shop for judges; Menteri Hal Ehwal Dalam Negeri v Raja Petra Raja Kamarudin & another appeal [2009] 3 CLJ 513 FC, Comsa Farms Bhd v Malaysian Assurance Alliance Bhd (no.1) [2012] 10 MLJ 526; [2012] 3 CLJ 724 HC, Residence Hotel and Resorts Sdn Bhd v Seri Pacific Corp Sdn Bhd [2014] 10 MLJ 413 HC and Datuk Kasi a/l K L Palaniappan v Menara Embun Sdn Bhd & Ors and another case [2021] MLJU 2632 that it is no ground to recuse a judge merely because the said judge had in the past heard another case against the applicant which does not favour the applicant if the facts in the cases are different; it was strenuously postulated that the Defendants had not demonstrated that there is a ‘real danger of bias’ on my part. The Law [13] 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 supra 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] 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 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”. [15] The same test was 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. [16] Due to developments in English law after R v Gough, particularly in the House of Lords decision in Porter and another v Magill, 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 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 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.” [17] 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 CA 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.” [18] 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…” [19] 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.” [20] 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 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.” (Emphasis added) [21] 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 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.” (Emphasis added)

(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: “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 supra Vernon Ong JCA (later FCJ) also 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).”

(iv) in Comsa Farms Bhd v Malaysian Assurance Alliance Bhd supra, 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 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.” (Emphasis added) [22] 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: 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 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….” (Emphasis added) [23] In PP v Tengku Adnan Tengku Mansor supra Nallini Pathmanathan FCJ in delivering judgment of the Federal Court reiterated the “real danger of bias” test and explained the established responsibilities of the function of the judiciary as follows: - “[12] The governing law in this country applies the test laid down in Regina v Gough [1993] AC 646 and is summarily stated to be a ‘real danger of bias’. The test was first adopted in Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor dengan tanggungan [1999] 3 MLJ 1 by Edgar Joseph J in a judicial review case, reiterated in Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara [2002] 1 MLJ 321, the only criminal case dealing with bias in the context of a habeas corpus application and Dato’ Tan Heng Chew v Tan Kim Hor [2006] 2 MLJ 293, another civil matter relating to striking out under O 18 r 19 RHC. [13] In all these cases, the question before the court, as it is in this case is whether, having regard to the facts and circumstances, there was a real danger of bias on the part of the learned trial judge when he heard the case involving the respondent? [14] What does ‘real danger of bias’ mean? In explaining this Lord Goff 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 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 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 avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in 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 … ……… [22] …

(ii) … is that when there is a joint trial and one co-accused pleads guilty and is then convicted and sentenced, the other accused would still receive a fair trial because all the facts pertaining to the charge would have to be adduced and proven afresh against the remaining accused person/s. The accused person/s who did not plead guilty would be accorded a full opportunity to defend themselves via the subsisting criminal justice system, which places primary importance on the continuing impartiality of a trial judge. If a real possibility of bias remained for the other accused, such a procedure would not have been approved and set down in respect of joint trials, a practice which is followed in the criminal courts to this day.

(iii) The Court of Appeal also failed to consider that the guilty plea of the co-accused was not evidence against the respondent. A judge is required to consider separately and independently, the evidence against the respondent. One such example is the confessions, which are admitted at trial. A confession might have details of the involvement of co-accused, which are not admissible against the co-accused, but can be utilised against one accused. The judge will hear the details but does not recuse himself purely on the basis that he heard the confession which implicated the co-accused; … [30] The Court of Appeal erred in concluding that any presiding judge who hears the facts of a case in the course of recording a plea of guilt on the part of a co-accused in relation to the offering of a bribe, effectively results in a non-erasable bias on the part of the presiding judge, such that he is automatically predisposed against the remaining accused. Such a conclusion is not warranted in view of the following matters, some of which have been referred to above:

A judge is a profession who undertakes the job of determining the guilt or otherwise of an accused such as the respondent, on the basis of evidence which has been the subject of the due process of law…

(ii) A judge takes the judicial oath of office which requires adherence to the Federal Constitution… encompasses the right to a fair trial …” (Emphasis added) [24] The Federal Court in Dato’ Sri Mohd Najib bin Hj Abdul Razak v Public Prosecutor supra in the latest pronouncement on the subject of recusal, in a majority decision delivered by Vernon Ong FCJ expressly at [160] stated that the applicable test on whether a judge should be recused is ‘a real danger of bias’ test not perception of bias and affirmed the principle of law reiterated in Public Prosecutor v Tengku Adnan bin Tengku Mansor. Decision [25] 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? [26] D1, D2, D3 and D5’s complaint really boils down to a ‘real danger of bias’ on my part due to the extraneous matters/information received from the Protasco Suit, which would subconsciously influence me in hearing the present action. [27] D1, D2, D3 and D5 as the applicants, bear the legal burden of proof that there is a real danger of bias, which warranted my recusal to continue hearing this action. [28] In arguing that the threshold is lower, it was submitted that the “real possibility of bias”, contemplates a lower standard than a “likelihood” or “probability”, and the case of Stubbs v The Queen was referred. In my view, Stubbs v The Queen is not applicable to the present case before this Court as the test used in that case is that of the ‘fair-minded observer’ and not the test of ‘real danger of bias’. The lower test in whether the relevant circumstances, as ascertained by the court, would lead a ‘fair-minded and informed observer to conclude that there was a real possibility that the tribunal had been biased was the test applied by the House of Lords in the case of Porter and another v Magill. [29] I am of the respectful view that the misconception that the threshold is low has long been resolved by our Federal Court in several cases beginning from Dato’ Tan Heng Chew v Tan Kim Hor which held that the developments in English law subsequent to the decision in R v Gough, including the modified test in Porter and another v Magill are not relevant in Malaysia and the Federal Court saw no reason to change or modify the existing test of ‘real danger of bias’. So too the Federal Court cases that came after Dato’ Tan Heng Chew v Tan Kim Hor e.g. Metramac Corporation Sdn Bhd v. Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (Interveners) [2007] 4 CLJ 725; Public Prosecutor v Tengku Adnan bin Tengku Mansor; and most recently, Dato’ Sri Mohd Najib Hj Abd Razak v PP & Other Appeals. [30] D1, D2, D3 and D5 have also referred to paragraph 29 of Public Prosecutor v Tengku Adnan bin Tengku Mansor but with utmost respect, paragraph 29 must be read together with paragraphs 27 and 28 of the judgment to avoid any confusion. [31] In Public Prosecutor v Tengku Adnan bin Tengku Mansor, Nallini Pathmanathan FCJ held: “[27] This statement discloses that the Court of Appeal applied a test of whether there was a danger of real bias on the part of the trial judge. However, the test prescribed in R v. Gough as adopted in this jurisdiction is 'a real danger of bias'. [28] There is a difference between a danger of real bias and a real danger of bias. So, the Court of Appeal conflated the tests somewhat, by requiring any possibility of real bias, while the correct test requires a real possibility of bias. In so conflating the test, the Court of Appeal applied a very low threshold, thereby committing an error of law. [29] The real danger of bias does not prescribe a very low threshold of bias. What it does is to apply a lower threshold than that of an apprehension of bias or likelihood of bias, as stated by Edgar Joseph Jr J in Sungai Gelugor. But such a threshold does not automatically translate to an extremely low threshold.” [32] The concept of 'real danger of bias' was explained by Lord Goff in R v. Gough, in the passage set out at paragraph 14 of the judgment of Public Prosecutor v Tengku Adnan bin Tengku Mansor and alluded to earlier at paragraph 23 of this judgment. [33] I find the UK House of Lords case of Lawal v Northern Spirit Ltd inapplicable as it relied on the test propounded in Porter and another v Magill decided by the same court. So too the Australian cases of GetSwift Ltd v Webb which applied the fair-minded and informed observer test i.e. whether fair-minded and informed observer will have a reasonable apprehension that there was a lack of impartiality on the part of the tribunal. [34] There is a presumption of impartiality of judges in the performance of their judicial functions, and such presumption may be rebutted only with cogent and convincing evidence. I am not persuaded by D1, D2, D3 and D5’s assertions that: a. there is a real danger of apparent bias on my part if I continue to hear the present action due to “subconscious influence of extraneous information” received by me in the Protasco Suit, and the “impressions created” in my mind; and b. the information received by me in the present action would “subconsciously influence” me when determining the Protasco Suit, are cogent reasons to pivot their claim that there is a ‘real danger of bias’ to merit my recusal from hearing the present action. [35] There is nothing cogent or convincing on record that shows I might unfairly regard with favour or disfavour the case of either party to the issues under consideration, or had acted or might act in an unjudicial fashion, such that I cannot be expected to discharge my judicial functions in an impartial manner. [36] There is also no evidence let alone allegation of any personal or such extrajudicial reason shown by D1, D2, D3 and D5 to prove that there is a “real danger of bias" on my part. [37] In my utmost respectful view, the Protasco Suit is a separate suit from the present action involving different parties and a different set of facts and circumstances although D1, Tey is a common defendant. The Protasco Suit and the present action are each to be determined by this Court based on the its own facts and evidence to be adduced, and in accordance with the law. The fact that both the Protasco Suit and the present action involve allegations of fraud and dishonest conduct in my opinion do not justify a recusal application. Whether or not the complaints in both suits have merits is for the respective Plaintiffs 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 respective suits impartially. Added to that a judge is not precluded from adjudicating cases involving similar parties where the facts are different, although the questions of law might be the same or similar. [38] That is not all, in Wong Kie Chie & Ors v Kathryn Ma Wai Fong, 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...” [39] The question of bias raised by D1, D2, D3 and D5 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 to E). It is, therefore, apt to remind myself of what was stated by Abdul Hamid Mohamad FCJ in Dato Tan Heng Chew v. Tan Kim Hor in the following words: "I am being cautious in order to maintain the highest standard of public confidence in the judiciary. But, I would like to add that each case is to be decided on its own facts and the court should be vigilant not to allow parties to do "judge-shopping" by recusal of judges" [40] In similar vein, the Court of Appeal in the case of Wong Kie Chie v. Kathryn Ma Wai Fong at [33] besides holding that the decision to recuse from the case will depend fundamentally on the particular facts and circumstances of each case, also warned that the court should be vigilant not to allow parties to do judge-shopping by recusal of judges. The Court added that whilst it is important that justice must be seen to be done, it is equally important that judges discharge their duties to sit, do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. [41] Even if I had wanted to take the easy way out, and allay D1, D2, D3 and D5’s fears of any apparent bias as alleged, I have to bear in mind that the Court of Appeal in Wong Kie Chie v. Kathryn Ma Wai Fong had also cautioned that appeasement is not an appropriate ground for recusal. 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”. [42] It is trite that a judge by his/her oath of office is bound to administer justice impartially and having regard to the evidence in each case and ought not to be asked to be recused willy nilly on a whim and fancy. A judge’s finding made according to law in a particular suit cannot be a ground for recusal in other suits. Here, I have not even made any finding yet in the Protasco Suit. [43] Further, judges have a duty to sit and adjudicate on cases allotted to them and not allowed to case shop. It would be “wrong” and a “gross dereliction” of my duty as a judge to disqualify myself when there is obviously no real danger of bias for me to continue the hearing in this action. In this regard, in Mohamad Ezam Mohd Nor & Ors v. Inspector General of Police (affirmed by the Federal Court in Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara [2002] 1 MLJ 321; [2001] 4 CLJ 701), Augustine Paul J said: "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." [44] I also have no direct pecuniary or proprietary interest in the subject matter of both suits. The imputation of apparent bias on my part on the totality of the facts here, are not sufficient to merit a recusal. I do not even think that any fair-minded and informed observer, the reasonable man (the court in cases such as these personifies the reasonable man according to Lord Goff in R v Gough), having considered the facts, would conclude that there was a real possibility that I would be biased. [45] On the facts and circumstances here, even if the ‘real danger of apparent bias’ test is applied, I would still arrive at the same conclusion. [46] 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. [47] For the reasons given, I am impelled to conclude D1, D2, D3 and D5 have not discharged the legal burden of proof that there is a real danger of bias, which warrants my recusal to continue hearing this action. [48] As such, I decline to recuse myself. The application in Enclosure 101 is dismissed with costs subject to allocator. Dated: 18th June 2023 - sgd - ……………………….. Liza Chan Sow Keng Judge High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiff : Christopher Leong (together with him, Ng Chian Huey, Aaron Chelliah, Annarina Jacob, Alycia Chuah, Janet Chai and Wong Wai Haoi (Calvin)) Messrs Chooi & Company For the 1st, 2nd, 3rd & 5th Defendants : Malik Imtiaz Sarwar (together with him, Surenda Ananth, R Jayasingam, Lim Yvonne, Khoo Suk Chyi and Ng Keng Yang) Messrs B H Lawrence & Co. CASES REFERRED: Chee Pok Choy & Ors v Scotch Leasing Sdn Bhd [2001] 2 CLJ 321 S & F International Limited v Trans-Con Engineering Sdn Bhd [1985] 1 MLJ 62 Menk Sdn Bhd v Joerg Hugo Schmidt [2009] 3 MLJ 205 GetSwift Ltd v Webb [2021] 388 ALR 75 Stubbs v The Queen [2018] 3 WLR 1638 Lawal v Northern Spirit Ltd [2004] 1 All ER 187 Bar Council Malaysia v Tun Dato’ Seri Arifin Zakaria & Ors And Another Reference; Persatuan Peguam-peguam Muslim Malaysia (Intervener) [2018] 10 CLJ 129 Dato’ Sri Mohd Najib Hj Abd Razak v PP & Other Appeals [2023] 3 MLJ 40; [2022] 8 CLJ 387 PP v Tengku Adnan Tengku Mansor [2020] 5 MLJ 220; [2020] 9 CLJ 30 R v Gough [1993] AC 646 (UK House of Lords); Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 MLJ 1 Dato’ Tan Heng Chew v Tan Kim Hor [2006] 2 MLJ 293; [2001] 4 CLJ 701 Wong Kie Chie v Kathryn Ma Wai Fong & Anor and Other Appeals [2017] 3 MLJ 350; [2017] 5 CLJ 707 Menteri Hal Ehwal Dalam Negeri v Raja Petra Raja Kamarudin & another appeal [2009] 3 CLJ 513 Comsa Farms Bhd v Malaysian Assurance Alliance Bhd (no.1) [2012] 10 MLJ 526; [2012] 3 CLJ 724 Residence Hotel and Resorts Sdn Bhd v Seri Pacific Corp Sdn Bhd [2014] 10 MLJ 413 Che Minah bt Remeli v Pentadbir Tanah, Pejabat Tanah Besut, Terengganu & Ors [2008] 5 MLJ 206 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 ML J 481 Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara [2002] 1 MLJ 321; [2001] 4 CLJ 701 STATUTE/LEGISLATION REFERRED: Sections 179(a) 179(b) 200, 317A, 360, 370(b), 370(c) of the Capital Markets and Services Act 2007