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Thursday, November 25, 2010



Mahkamah Tinggi Jenayah 3
Di hadapan Yang Arif Dato’ Mohamad Zabidin Mohd Diah

PP: Semua hadir kecuali MY, NH dan MM
PB: KS, SN, Datuk Param Cumaraswam (Dato’ CV Prabhakaran, Ram Singh, Marissa, Radzlan tidak hadir)
AI hadir

[9.14 a.m.] Pihak-pihak masuk ke Kamar Hakim.
[9.20 a.m.] Pihak-pihak keluar dari Kamar Hakim.

[9.23 a.m.]

Permohonan 44-258-2010

MHZ: Pihak-pihak yang sama kecuali Datuk Mohd Yusof.
KS: My lord, the application before your Lordship this morning has very serious implications and consequences.This is an application my Lord where your Lordship’s role as a trial judge is under scrutiny. That being the position, my Lord your Lordship would have got to go the extra mile to ensure that your Lordship objectively looks at the matter.
In an application like this, a judge takes his own cause. Ordinarily YA, a tribunal must be objective and must not be personally but there is an exception. This is an exception out of necessity. YA there had been in the past various application or when it is necessary to make application of the recusal of the judge.Some judges in the past would take it upon themselves, when the application is made they themselves voluntarily step down from further hearing the case. They do that in line with public policy.
I take your Lordship to one instance where a judge took into account public policy, very senior judge Datuk KC Vorah. I take your Lordship to the case of [] in tab 10 in our bundle of authorities. His Lordship when the application was made for his Lordship to recuse himself had this to say. [read : Public policy requires that in order that should be no doubt about the purity of the administration of the justice. Any person who has take part in it should not be in the position when he is suspected of being bias]. I take your Lordship to what the judge said in the course of his judgment. He refer to the case of Allison v General Counsel [] as regards to the proposition I refer to your Lordship. He then refers to the case of []. [read: ...in the administration of justice the judges and Magistrate should not only be fair and impartial but should also appear to reasonable persons to be fair and impartial that neither should an accused person or a litigant have any reasonable ground for supposing that the judge or a Magistrate who is trying the case in which their concern is bias in their favor or against them. The classic words of Chief Justice in R v Sussex. It is not merely of some importance but a fundamental importance that justice should not only be done but manifestly be carried out or manifestly be seen to be done. In all these circumstances at the instance of the defence’s counsel I agree that it would not be fair for me to hear the case. I disqualify myself from hearing this case].
There have been instances where judges have voluntarily recused themselves without even going into elaborate authorities for the purpose of not []. YA, a judge take an oath of office. He is required by the oath of office to administer justice without fear or favor. But that does not mean that the judge can do as he pleases. And get the a whole of reasons for not recusing himself.
The law is there, my Lord. In fact judges are now subject to certain regulations which rule their conduct. I take your Lordship to the regulations which has come into force recently, i.e. Judges Code of Ethic 2009. I take your Lordship to tab 2 of our bundle attached to it. The code of ethics came into operation on the 1st of July 2009. [read: A Judge can be subjected to disciplinary proceeding in the event he is bias or act in prejudice of an accused person]. I take your Lordship to the Code. They do comply with this code. [read: A judge shall comply with the provisions prescribed in this Code. A breach of any provisions prescribed in this Code shall render the judge liable to disciplinary proceeding in accordance with the provisions of this Code. At the bottom of the page YA, [] [read: the judicial duty of the judge shall take precedence over all other activities]. And we have YA then what is relevant and necessary for your Lordship to carefully consider. [read: a judge shall perform his duties without bias or prejudice]. That is important, YA. A judge shall perform his judicial duties without bias or prejudice.
I’m not threatening your Lordship that this matter will be taken up in the event it is found that your Lordship is bias or would be bias and will be prejudice against the accused. I give your Lordship a gentle reminder. A gentle reminder that your Lordship would carefully consider.
Whether here if your Lordship were to insist despite being bias and despite being prejudice to carry on to be prepared for the consequence. In the past YA, a judge for misconduct was tribunalised. The tribunal was set up by the King. But this year what has come into force is the Judges Ethics Bill. An Act rather, no more Bill. Judges Ethic Committee. That committee has the jurisdiction and power to try a judge for misconduct which does not end up to removal from the judicial office but less than removal from the judicial office, the Judges Ethics Committee has the jurisdiction to subject a judge for disciplinary proceeding. What is important also is the principle of judicial conduct 2002, that would be tab 2. It is a principle where rules made in respect of the judicial conduct, the principles relating thereto in respect of judges trying the proceeding.
I take your Lordship to what is the importance for the value of impartiality under the heading “impartiality” page 3. [read: A judge shall perform his or her judicial duties without fear, bias or prejudice]. There it is YA, bias or prejudice. But what is important is to note that these regulations are refer, in fact principles are agreed to by a number of jurist among them is Dato’ Param Cumaraswamy. I take your Lordship to page 9 under explanatory notes. [read: At his first meeting in Vienna in April 2000 on the invitation of United Nation Centre for International Crime Prevention and in connection with the United Nation Congress... the judicial group of integrity comprising of Chief Justices of a number of countries met and for that purpose prepare a draft code of judicial conduct] which ended up in a matter of principles 2002 and clearly in the middle of the page is the name of my learned friend Dato’ Param Cumaraswamy as a special repetoire.
I take your Lordship to paragraph 2. [Read: In preparing a draft code of judges conduct in accordance with the directions sets as above references was made to several existing codes under international instruments including in particular...code of judges from many countries with regard to judicial conduct is referred]. I need not go through. Except that the judges code of conduct in Malaysia prescribed by the YDPA on the recommendation of the Chief Justice which is also adverted to.
So what is important now YA is to apply these principles to the position before your Lordship this morning.
Now first what is important to consider what would be the test which this court ought to apply for the purpose of deciding whether there is bias or there can be or there could be part of your Lordship in deciding this matter.
I take your Lordship to tab 6, the case of Mohd Ezam v Ketua Polis Negara. [read: the test to be applied in the present case in respect of the disqualification of a judge is the real danger of bias test. And the question here is whether with regards to circumstances of the case there was real danger of bias on the part of the learned trial judge with regards to a habeas corpus application. R v Gough is referred. It is the real danger of bias test. But having regards to the first, the judge is the one who should consider whether there is a real danger of bias.
I take your Lordship to the cases of this position. An extract in the Mallal Law Digest recital 1083. I first take your Lordship to what is highlighted there. [read: the court look at impression that would be given to other people, not to the court itself.] That is the objective test. [Read: And in this case even if the Magistrate is impartial as he would be nevertheless if a right minded person were to take that in this circumstances that there would be a real danger of bias or likelihood of bias then the Magistrate should not hear the case]. Now of course it is a real danger bias case.
Now of course it involved what was said by J Eusoffe Abdoolcader at tab 11, the last page. This is the manner in which his Lordship consider. What is to be considered is in fact the impression in the mind of the disinterested man or women in the Jelutong Omnibus. These are the principles YA. These are the principles within which your Lordship will have to consider whether your Lordship should carry on hearing the case. On the factual matrix, this is what suffices.
Then it was yesterday. After YA had ruled that we are not entitled to the notes and other materials, we had made an application for your Lordship to have adverted to or rather I have brought your Lordship’s attention to the Supreme Court case, United Asian Bank Bhd. I said YA that YA has not abided by the principles of the case and we will be making application for the recusal of your Lordship on that trial.
But what transpired thereafter YA was this. I take your Lordship to para 6 of the affidavit in support of DSAI. We have taken this from the extraxct from what has been recorded on what transpired that day. [read]. YA, this is a clear case of intimidation of counsel. The threat by your Lordship to take up contempt proceeding. To threaten a counsel in execution of his duty is a very serious matter. No doubt that judges are required to administer justice without fear or favour. Counsel too has certain duties.
I take your Lordship to rule 16 of the Legal Profession Act 1978. [read : uphold the interest of their client] that is YA a very onerous task for a counsel to carry out.
I take your Lordship to what has been said by Eusoffe Abdoolcader in the case of Dato’ Mokhtar Hashim, tab 1 page 283 of the report. [read]
So here YA, we say the ground upon which this application is founded is that there was this threat to counsel of contempt and therefore what has to be considered here putting aside the disinterested person, the jelutong omnibus and also the impression created on the mind of DSAI. And that is what your Lordship has to seriously consider. Your Lordship has to put yourself into the shoes of DSAI. And that is he manner in which Your Lordship, what would be the impression of Your Lordship mind.
The fact that your Lordship back track and withdrew the threat to cite me for contempt does not mean prejudiced and bias are completely erased in Your Lordship’s mind. It is there. As a human it is the person that we trust. That element must be taken into consideration. As I said earlier, our application is founded solely on that ground. DSAI is entitled in regard to the provision of Article 5(1) of the Federal Court where all persons are entitled for a fair trial. That is effect of Article 5(1) of the Federal Constitution.
An expression has been given in respect of that article by the Federal Court itself recently in the case of DSAI. It’s adverted to in para 11 of DSAI’s afidavit in support of our application. This is what is said by the Federal Court in DSAI. [read].
So your Lordship must carefully consider now. As I said earlier the effect of the threat against counsel on the mind of DSAI. We would urged YA to carefully consider it, I must say this must be taken objectively. There is nothing personal between your Lordship and I. I have appeared before your Lordship many a times. But when it comes to a necessity YA, we say it is a necessity in this case for us to insist your Lordship under the circumstances to recuse. We say there is a real danger of bias. It is for your Lordship to apply the law to the circumstances of the case based on the factual matrix set out in DSAI’s affidavit.
Your Lordship as a judge will not be able to reply to the affidavit. I don’t know why but that is the position placed on the judges. Judges should be given opportunity to defend themselves. The law is very clear. If the context of affidavit is not challenged, then it is deemed admitted. The Federal Court has decided this in DSAI case, in another case applying the principles in the case of Ng Hee Tong. It is given the status of the proposition being backed by the Federal Court. In any event YA, let the record speaks of itself. Transcript speaks for itself.
There is one case where J Apandy was required to recuse himself. I take your Lordship to tab 5. Unfortunately YA the judge went at a great length to insist not to recuse himself and he also refers to the principle of to the reasonableness of the existence of the real danger of bias to be assessed in the light of the judges code of ethics 1994 and their oath to administer justice without fear or favor. No doubt the judge is not required on frivolous ground to discharge himself.
But the ground in which our application is based is one of substance and not of allegation plucked from the thin air butt something which is transpired in this court itself in the presence of everyone and YA recorded. I apply for your Lordship to voluntarily step down. Without the necessity of reply by my learned friend.
Your Lordship must act in line with the manner where J Vorah acted in the case I cited to your Lordship just now. He took into account the public policy. He took into account that justice must not only be done, but be seen, manifestly to be done. YA should not have in mind YA that the fact that this trial has go on for some time, 3 witnesses have given evidence, or at least 2 ½, one in the middle of the cross-examination, and it involves public expense but expediency should not be affected. Justice should not be sacrificed at the court’s expediency. YA, DSAI’s case is big, monitored worldwide. In fact our legal system itself is under trial. Even the Secretary of the United Sates, Hillary Clinton has called upon the government to ensure that DSAI gets a fair trial. And there were the same calls made by the European Union, and other organisation. This trial is being monitored by representatives of various High Commissions and Embassies. Your Lordship is under close scrutiny. Your Lordship has to be man enough to rise up to the occasion and with respect step down. It is my view, our view that your Lordship has no other alternative under the circumstances but to step down.
It is a first time where application is founded on the ground of intimidation of counsel by the judge. That there can be intimidation there can be no doubt. YA may refer to the case of Zainur Zakaria where Zainur Zakaria was charge for contempt and sentence for imprisonment for three months. The Federal Court set aside the conviction and sentence. The Federal Court even went to the extent questioning the conduct of the judge, J Augustine Paul. J Malik who wrote the judgment of that court went to the extent of saying that the learned judge there was acting more as defence counsel, sorry as prosecutor more than a judge. I’m not threatening your Lordship that the Federal Court will reverse your Lordship’s decision. But I’m gently reminding your Lordship that that can happen. Your Lordship must try as best as possible to accept that and to step down. We would respectfully pray your Lordship step down and recused further from continuing with the trial.

MHZ: Pihak pendakwaan memohon masa untuk menjawab hujah pihak pembela dan terutamanya untuk mendapatkan arahan dari Dato’ Yusof.
YA: Dia sakit?
MHZ: Ya. Dia sakit hari ini, YA.
KS: No objection.
YA: Tomorrow 9.00 a.m?
KS: Tomorrow I have a matter in Court of Appeal in the morning. So I’m not unable to be here tomorrow morning, but I’ll be back by 11.00 a.m.
WCK: Tomorrow is Friday. Can we can start early?
YA: So 8.30 tomorrow.
[10.07 a.m.] Adjourn.
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