Tan Kheng Guan (Mendakwa Bagi Pihak Dirinya Sendiri Dan Pemegang Saham Syarikat Defendan Ketiga Shigen Polycolor Sdn. Bhd., Selain Daripada Defendan Pertama Dan Defendan Kedua) v 1. ) CHU KOK KHING (PA-22NCvC-223-11/2017)

CHU KOK KHING [NO. K/P: 700916-07-5377]

EE GENG CHOON [NO. K/P: 530703-07-5112]

SHIGEN POLYCOLOR SDN BHD [NO. SYARIKAT: 566938-X]

SHIFTY TECHNOLOGY SDN BHD [NO. SYARIKAT: 662037-K]

LEW THEN BOO [NO. K/P: 320120-71-5389]

TANG GAIK TENG [NO. K/P: 821002-07-5056] 29/08/2025 16:44:33 PA-22NCvC-223-11/2017 Kand. 607 S/N hMpd1dJfk0SvvMl1JZtKDg

SCONEY TECHNOLOGY SDN BHD [NO. SYARIKAT: 738747-D]

LOO CHUI LI [NO. K/P: 700710-07-5320]

KHOR KHUAN HWA [NO. K/P: 741016-07-5874]

SUTERA IDEA SDN BHD [NO. SYARIKAT: 853012-A]

CHU YEIN HOON [NO. K/P: 680503-07-5410]

SHINES PIGMENT MASTERBATCH (M) SDN BHD [NO. SYARIKAT: 1150173-W]

LOO TIANG MENG [NO. K/P: 410415-02-5149]

CHU SOOI TENG [NO. K/P: 410527-07-5319] …. DEFENDAN-DEFENDAN GROUND OF JUDGEMENT A. INTRODUCTION [1] This is the Defendants’ (save for the Third Defendant) application at Enclosure 585 to recuse and/or disqualify me from hearing Civil Suit No.: PA-22NCvC-223-11/2017 (hereinafter referred to as ‘the main Suit’). S/N hMpd1dJfk0SvvMl1JZtKDg B. BACKGROUND OF THE APPLICATION [2] The Plaintiff obtained a Committal Order dated 13.03.2025 (Enclosure 550) against the Defendants and the Defendants’ Solicitors vide Notice of Application dated 03.10.2024 (Enclosure 450).

The contempt proceedings were heard on 16.12.2024,

01.2025 and 13.03.2025 before me (the Judge). Aggrieved by the Judge conduct during the course of the said Contempt Proceedings, the Defendants filed this Application. C. THE DEFENDANTS’ SUBMISSION [3] Throughout the course of trial on 23.01.2025 of the said Contempt Proceedings, the Defendant insisted that the Judge had excessively interrupted and/ or interjected in the cross-examination of the Defendants’ witness, Mr. Chu Kok Khing. According to the Defendant such conduct was both unusual and disturbing, giving rise to the impression that the Judge had descended into the arena. The Defendant also said that an observation was noted with concern by the Court of Appeal on 11.04.2025 in Civil Appeal No.: P- 02(IM)(NCVC)-413-03/2025 during the hearing of the Defendants’ application for a stay of execution of the Committal Order (hereafter referred to as ‘the said Court of Appeal hearing’). The Defendant submitted that notwithstanding the Court’s power to pose questions under Section 165 of the Evidence Act 1950, judicial intervention ought not to be excessive as this can lead to suspicion of bias. S/N hMpd1dJfk0SvvMl1JZtKDg [4] The Defendant produced the following Notes of Evidence (NE) of the said Contempt Proceedings on 23.01.2025 to support his contention. “P1 You look at it carefully. Or do you still need to compare with other affidavits that you have signed and filed in Court? Yes, Yang Arif. P1 So, Mr. Chu, I will show you another affidavit that you have filed in Court or you need more affidavits to confirm your signature? Yes, Yang Arif. Mr. Chu, you have taken oath ya. You have taken oath to tell the truth in Court ya. Yes, Yang Arif. So, you are reminded that you are to tell the truth ya. Who would want,who would want to forge your signature to file in the affidavit? If you are found to be lying, Mr. Chu, if you are found to be lying in Court, the punishment would be grave ya. You are reminded of that. P1 I am also showing you your affidavit you filed in Court of Appeal as well. Yes, I understand, Yang Arif. Yang Arif, I feel that that one at page is slightly different. S/N hMpd1dJfk0SvvMl1JZtKDg It is not about difference in the signature. Is whether is your signature or not. We are not looking at the signature itself. Is whether you signed the affidavit or not, that is all. That one on page 8, I cannot confirm, Yang Arif.” Cannot confirm of what? I cannot confirm this signature. It is not about his signature, is he the one who signed the signature on the affidavit? As far as I remember, looks like I did not sign this affidavit. So, then who signed this affidavit? I am sure you know about that isn’t it? Because this is your application. We are wasting time here you know as to the signature. Mr. Khoo, do you know anything about this? My Lady, actually I... Did you advised your client on this? My Lady, this is like twilight period because I took over from Henry... Ya, it is not during your period but then your client, you should know your client, isn’t it? Because this was done... S/N hMpd1dJfk0SvvMl1JZtKDg We are wasting time on this you know. Semua ini dibuat masa Henry. Ya lah. Dia applicant, who would want to, to, to, you know, forge his signature to sign the afidavit sokongan? [5] Following this the Defendant further submitted that the Judge’s conduct during the said Contempt Proceedings suggested that the Judge had prejudged the credibility of Mr. Chu Kok Khing and/or the issue concerning the maker of the signature of his Affidavit in Support (hereafter referred to as ‘the said Affidavit’) prior to the completion of the said witness’s testimony and further depriving the Defendants their right to be heard, as can be seen from the following instances: - [a] The Judge repeatedly on five (5) occasions directed Mr. Chu Kok Khing to speak the truth during his testimony. [b] The Judge repeatedly on two (2) occasions reminded Mr. Chu Kok Khing ‘You better think about it’ during his testimony. [c] The Judge repeatedly on two (2) occasions posed questions as to who would want to forge Mr. Chu Kok Khing’s signature on the said Affidavit. [d] The Judge remarked to Mr. Chu Kok Khing that his evidence ‘doesn’t help him so much. S/N hMpd1dJfk0SvvMl1JZtKDg [6] Below further illustrated the conduct of the Judge in the said Contempt Proceedings: - Mr. Chu, you faham dulu soalan peguam. You belik-belik macam ini kan kita tak ke mana. Lagi you belik, lagi akan, apa ini, ah, we can’t help you-lah, you know. Ya. I mean the effect will be not good for you. Ya. You better tell the truth. You better tell the truth to make things easy. I am looking at your demeanour as well. Your demeanour and how you answer the question, whether you understand the question, what is your answer. Ya. I have note everything. If you are found to be guilty, the punishment would be, I can’t say-lah. You better think about it. You better think about it. Make it easy for the Court, make it easy for you, make it easy for everybody. Just tell the truth. Dia senang saja, did you withdraw the money from the bank, itu yang saya nak tahu ya. That is what the Court wanted to know. Did you withdraw the money from the bank. Whatever you uses the money, tak kira nak bayar gaji ke, nak bayar you nak pergi marketing ke apa, itu saya, Mahkamah tak mahu tahu. ….. Mr. Chu, dengar ke tak? Saya dah banyak sabar ya. Ada pengeluaran ke tak? You dengar dulu, you tak nak dengar Mr. Tan cakap, boleh. Tapi dengan Mahkamah you kena dengar dulu. Saya dah ambil masa almost 2 jam, 3, 3 jam dengar you punya cakap. S/N hMpd1dJfk0SvvMl1JZtKDg Okay. Saya nak tahu samada ada pengeluaran ke tidak selepas 29 8 haribulan 1, tak kira untuk apa. Apa-apa... You dengar dulu. Sebab saya rujuk kepada afidavit awak, afidavit awak kata ada transaksi, transaksi bermakna ada pengeluaran-lah dari akaun untuk tujuan, you cakap untuk tujuan operasi syarikat seperti pembayaran gaji pekerja yang dibenarkan oleh Mahkamah pada 29 haribulan 1. Maknanya ada pengeluaran ataupun tidak? Ada pengeluaran untuk operasi sahaja. JDG Okay. Maknanya ada. Kita tak mahu samada untuk apa. Ada pengeluaran ataupun tidak? Okay. Maknanya ada. Kita tak mahu samada untuk apa. Ada pengeluaran ataupun tidak? [7] The Defendant concluded that the extracts from the NE above suggests that the Judge was not concerned with the witness’s explanation as to what he understood by the withdrawal of monies from the Fourth Defendant, which formed the basis of the issue to be tried in the said Contempt Proceedings. It appears from the said extracts above that the Judge was only concerned with whether there were withdrawals and not the witness’s attempts to explain his position to the point. The Defendant submitted that it is pertinent to note further that a lot of the questions on this crucial issue of the S/N hMpd1dJfk0SvvMl1JZtKDg withdrawal of the monies were not by counsel for the Plaintiff but by the Judge. [8] As the Defendant mentioned earlier, the Court of Appeal judges, headed by Nantha Balan JCA had made certain observations therefrom, including the concern that the Judge has descended into the arena and according to the Defendant this fact was not denied by the Plaintiff but the Plaintiff contends that this is merely an opinion of the said Court of Appeal panel. As a whole the Defendant submitted that in the circumstances, it cannot be said that the concern of a real danger of bias was only that of the Defendants, as even a panel of Court of Appeal judges seems to have shared the same concern with the Defendants. As such, there can be no doubt that this is not a case of a baseless and/or frivolous concern of a real danger of bias on the part of the Judge to the Defendants as there is evidence that such a danger may exist from an objective point of view as well, namely from the said panel of the Court of Appeal comprising of three trained and experienced judges. [9] The Defendants insisted that they were deprived of their fundamental right to be fully and fairly heard before the Judge as she have demonstrated impatience throughout the testimony of Mr. Chu Kok Khing in the said Contempt Proceedings i.e. with repeated interjections and/or interruptions and prejudicial remarks as stated hereinabove due to the Judge prejudgement, which compromised the proceedings and undermined the principles of natural justice and had failed to adhere to the Judicial Officers’ Code of Ethics 2019. S/N hMpd1dJfk0SvvMl1JZtKDg D. THE PLAINTIFF’ SUBMISSION [10] The Plaintiff submitted that the Defendants’ application was filed at the very last minute of the trial after this matter has already been long heard before the Judge since October 2023, and so many applications have been heard and decided and after so many orders have been granted. After trial date has been fixed on 18-6-2025 &19- 6-2025 by the Court in March 2025, and after the Federal Court chaired by Y.A.A Tun Tengku Maimun, Y.A. Datuk Vazeer Alam and Y.A. Dato’ Lee Swee Seng, has dismissed their leave to appeal pertaining to their undertaking on 21-5-2025, with ulterior motive to shop certain judge, after they have lost the contempt proceedings. [11] The Defendants have failed to fulfill the “real bias” test, which is a high standard test. The Defendants have relied on the comments allegedly made by Y.A. Nantha Balan during the stay hearing at Court of Appeal that there is participation by the judge in the cross-examination. However, such alleged comments are merely comments and/or opinions and/or observations which cannot constitute element of bias. There is no shred of evidence to show that the Judge has made personal remarks against the Defendants, rather it is merely an interjection by the Judge during the cross-examination in the contempt proceedings after hours of examination by the Plaintiff’s counsel, and blatant denial by the Defendant’s witness of withdrawals despite clear evidence of bank statement showing undisputed withdrawals, and the most to show impatience and/or annoyance by the Judge with the Defendant witness, Chu Kok Khing and the S/N hMpd1dJfk0SvvMl1JZtKDg Judge’s desire to keep the examination moving forward. This itself is insufficient to meet the test for bias. [12] The threshold to establish real bias is high standard and the trend of court is to disallow recusal to avoid judge shopping, after the Judge has granted numerous court orders not in their favour, which is even affirmed by Court of Appeal and Federal Court. There is no real bias which the Defendants have failed to establish, and it is rather mere Defendants' own speculation of bias based on their own fear and/or worries. In addition, the judge has had conduct of this case for the past 2 years since October 2023 and has heard and decided for more than 12 interlocutory applications and was familiar with the facts and issues involved. This case has gone through various stages of proceedings and bundle of pleadings, bundle of documents, issues to be tried, agreed facts all have been filed, witness statements have been filed and exchanged, by allowing the recusal which has no basis here, will definitely disrupt the proceedings and cause consequent delay to the disposal of the case and add further costs and expense and time, to the prejudice of the Plaintiff. [13] This application for recusal is a misuse of court process, similar to all previous applications filed by the Defendants which have been dismissed by the Judge and this Court is now being misused by the Defendants as an instrument to recuse the Judge or to remove this case to another judge in light that the Judge has granted numerous orders not in their favour. There is no prejudice and/or injustice and/or unfairness to the Defendants, as the trial will be heard and decided S/N hMpd1dJfk0SvvMl1JZtKDg based on law and evidence produced before the Judge, and further when the decision of the trial is not in their favour, they still have rights to appeal to the Court of Appeal and Federal Court and that should be the proper recourse for the Defendants and not this recusal application. Based on the above, Plaintiff humbly pray that the Encl. 585 to be dismissed with costs. E. THE APPLICABLE LAW [14] The law on judicial recusal is well settled. The fundamental principle is encapsulated in the maxim nemo judex in causa sua — no person shall be a judge in his own cause. The test is whether there exists a real danger of bias or a reasonable apprehension of bias, such that a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Judge was biased. [15] Our courts have consistently applied this principle. In Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1, the Federal Court held that the test is not whether actual bias has been established, but whether there is a reasonable suspicion or likelihood of bias in the eyes of a reasonable observer. S/N hMpd1dJfk0SvvMl1JZtKDg [16] The Federal Court in Dato’ Sri Mohd Najib bin Hj Abdul Razak v Public Prosecutor [2023] 3 MLRA affirmed Public Prosecutor v Tengku Adnan bin Tengku Mansor [2020] 4 MLRA 730 and Majlis Perbandaran Pulau Pinang v Syarikat Berkerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1 that the threshold for judicial recusal in Malaysia is the ‘real danger of bias’ test: - [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 S/N hMpd1dJfk0SvvMl1JZtKDg 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 …..” [17] Similarly, in Metramac Corporation Sdn Bhd v Fawziah Holdings Sdn Bhd [2007] 4 CLJ 725, [2007] 5 MLJ 501, the Federal Court reiterated that the threshold is an objective one, namely, whether there is a reasonable apprehension of bias. The personal perception of a party dissatisfied with judicial conduct is insufficient unless supported by cogent evidence. [18] Section 165 of the Evidence Act 1950 is also pertinent. It empowers the Court to put questions to any witness “in any form, at any time, about any fact relevant or irrelevant,” for the purpose of discovering or obtaining proper proof of relevant facts. However, this statutory power must be exercised judiciously and with restraint so as not to give the impression that the Judge has descended into the arena or assumed the role of an advocate. [19] Thus, the applicable legal principles can therefore be summarised as follows:

Actual bias need not be proved; it is sufficient if there is a real danger or reasonable suspicion of bias.

The perspective to be adopted is that of a fair-minded and informed observer. S/N hMpd1dJfk0SvvMl1JZtKDg

Judicial intervention by way of questioning is permissible under Section 165 of the Evidence Act 1950, provided it does not cross the line into advocacy or unfairly prejudice one party. F. ANALYSIS AND FINDINGS [20] I have carefully considered the Defendants’ submissions, the Plaintiff’s reply, the Notes of Evidence relied upon, and the observations recorded by the Court of Appeal during the stay proceedings. [21] At the outset, I note that judicial interjections, by themselves, do not necessarily indicate bias. A Judge is not a silent umpire. It is the duty of the Court to ensure that proceedings are conducted fairly, efficiently, and in accordance with the law. In fulfilling this duty, the Court is empowered under Section 165 of the Evidence Act 1950 to put questions to a witness for purposes of clarification. The questioning or interjections by the judge do not necessarily indicate bias but are part of their duty to ensure fair, efficient, and lawful proceedings. I noted that under Section 165 of the Evidence Act 1950, give me the authority to ask questions for clarification and efficient proceeding. In this case, I have repeatedly reminded the Defendant’s witness, Mr. Chu Kok Hing, to answer the specific questions post by the Plaintiff’s counsel whether the withdrawal of money was executed by the Defendant and to confirm his signature in the Affidavit in Support of his Application which he continuously S/N hMpd1dJfk0SvvMl1JZtKDg evading to answer. Instead of answering directly, the witness kept explaining the reasons behind the withdrawals. The conduct of the witness in evading these questions suggests the importance of my intervention to maintain focus on the key issues in the case. It also underscores my responsibility to facilitate the truth-finding process by urging witnesses to provide straightforward answers to pertinent questions. [22] Having perused the Notes of Evidence of 23.01.2025, I find that the interjections complained of were directed towards clarifying ambiguities in the witness’s testimony and ensuring that the issues were properly ventilated. There is no indication that the I had pre-judged the issues or had assumed the role of an advocate for any party. [23] As for the Defendants’ reliance on the observation of the Court of Appeal on 11.04.2025, I am of the view that such observation was neither a conclusive finding of bias nor an adverse remark against the conduct of this Court. Rather, it was an observation made in the context of considering whether a stay should be granted pending appeal. It cannot, in my judgment, be elevated into a binding pronouncement warranting recusal. [24] Applying the objective test laid down in Majlis Perbandaran Pulau Pinang and Metramac (supra), I am satisfied that a fair-minded and informed observer, apprised of the facts in their proper context, would not conclude that there exists a real danger of bias on S/N hMpd1dJfk0SvvMl1JZtKDg my part. The Defendants’ dissatisfaction with the manner of questioning does not, without more, amount to evidence of partiality. Furthermore, the threshold to establish real bias is high standard and the case of Residence Hotel & Resorts Sdn Bhd v Seri PacificCorp Sdn Bhd [2014] 10 MLJ 413 and Ang Sue Khoon v Majlis Bandaraya Pulau Pinang & Anor [2016] MLRSU 117 had emphasized that even a judge display of impatience, annoyance, anger, sarcasm, rudeness, or sharp remarks, in itself, is insufficient to establish a real danger of bias. There were also no personal remarks passed by me against the Defendants. [25] In the premises, I find that the Defendants have failed to establish a reasonable apprehension of bias. The application for my recusal is therefore without merit. [26] For the reasons stated above, I hold that the Defendants have not demonstrated any real danger or reasonable apprehension of bias on my part in the conduct of the contempt proceedings. The mere fact that the Court exercised its powers of intervention under Section 165 of the Evidence Act 1950 cannot, in law, be a ground for recusal unless it is shown that such intervention descended into advocacy or revealed prejudgment — which, on the facts before me, has not been established. S/N hMpd1dJfk0SvvMl1JZtKDg [27] Accordingly, the Defendants’ application at Enclosure 585 to recuse and/or disqualify me from hearing Civil Suit No.: PA-22NCvC- 223-11/2017 is hereby dismissed with costs RM 5,000.00 00 to be paid to the Plaintiff. Bertarikh 29 Ogos 2025 SGD (Rozana binti Ali Yusoff) Hakim Mahkamah Tinggi Pulau Pinang Kompleks Mahkamah Pulau Pinang Pulau Pinang Peguam bagi pihak Plaintif : Tan Wei Cheat and Low Kai Xin Tetuan Tan Wei Cheat & Co. Peguam bagi pihak Defendan: John Khoo and Martin Khoo Tetuan Ismail Khoo & Associates S/N hMpd1dJfk0SvvMl1JZtKDg