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Tuesday, December 28, 2010



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

PP: Semua hadir kecuali MY, NA
PB: KS, SN, Datuk Param Cumaraswamy hadir (Dato’ CV Prabhakaran, Ram Singh, Marissa, Radzlan tidak hadir)
AI hadir
[8.54 a.m]
YA: This is my decision [YA membaca ruling]
[1] This is an application by the accused for me to recuse myself from further hearing his criminal case No. 45-9-2009.
[2] The grounds put forward in support of this application are as in affidavit affirmed by the accused himself where the accused essentially contended that on 23 November 2010, in the course of the trial, I had intimidated his counsel

with contempt of court proceeding. As the result of this ‘intimidation’ the accused alleged that there is real danger of bias on my part.
[3] In order to understand the proper context in which those wortds were spoken I think it is important to produce here the relevant parts of the notes of proceeding in full. It is as follows:
Encik Karpal Singh: I have instruction from DSAI to file an application for your Lordship’s disqualification to continue with presiding in this case. We will put up a written application. But briefly the reason would be this.

Yang Arif is not abiding by the guidelines, for that matter, what has been pronounced specifically by the Supreme Court in the case of United Asian Bank Berhad v Tai Soon Heng Construction Sdn. Bhd. That is the main ground.
We will put up the written application by tomorrow morning. But we wish to give Your Lordship notice at this stage; I think which a necessity is. So we would ask for Yang Arif matter be adjourned until after our written application for Your Lordship disqualification.
Mahkamah: You will file it tomorrow morning. So, we can proceed with the trial today, now. And may consider the contempt proceeding also for filing application to recuse a Judge on the ground that a judge makes a decision which contrary to authority, which is wrong.
Encik Karpal Singh: More details given in application. DSAI is afraid that he is not getting a fair trial. So, we have instruction from our client to make that application, which we are entitled to make. Your Lordship may refuse it. That is Your Lordship’s domain and prerogative. Your Lordship should at least had it heard. The question if contempt does not arise. This is a matter which Your Lordship will have to view objectively, without being personally involved in it. We have a role to play as defence counsel and we have to attend instruction. If instructions given, we have to abide by those instructions.
Mahkamah: But you are responsible for whatever instruction given. Like Zainur Zakaria case. Whatever you file, even though on instruction of client, you will take the responsibility, Zainur’s case is very clear on that.
En. Karpal Singh: That is a separate matter.
Dato’ Yusof: It is the first time I am hearing this kind of and the way the application is grounded upon the fact that the judge should be recuse on the ground that involved a matter of interpretation with a judgment. This is nothing to do with the conduct of the judge but is the matter of the judge interpreting an authority and says that this authority does not support the proposition. And I have never heard of such a thing. So I do not think there is even a ground. Becuase if you are not happy, you appeal, if it can be appealled. If not, then you have to wait until the end of the trial. But that cannot be the ground because a Judge interprets the authority differently.
Mahkamah: But that one will be decided tomorrow.
Datuk Yusof: Yang Arif would not be able to make any decision tomorrow, because how are you going to say that I interpret it wrongly? You won’t be able to say that because you have heard the submission and this is your finding, that this authority does not support this proposition. Tomorrow, when the application comes in and says that you do not follow it, and it involves your own interpretation of that authority whether or not it supports the proposition.
Number two, I agree with Your Lordship, client will ask for anything but counsel must be able to advice and only do things which are permissible in law. Not because, “Oh my client ask this, irrespective whether or not the law allows it, I will have to do it because it is my duty to pursue my client’s case without fear or favour’. Because everything is subject to procedures and the law. I am objecting this application.
En. Karpal Singh: In the threat of contempt, I think is totally unwarranted. Yang Arif should involve objectively. Hears, when a written application is made.
Mahkamah: When application is made then I will heart it. Of course I will hear it.
Encik Karpal Singh: But to threaten us with contempt.
Mahkamah: For the time being we can proceed.
Encik Karpal Singh: Just that remark, to threaten us with contempt at this stage is entirely misplaced.
Mahkamah: I am not saying that is contempt.
Encik Karpal Singh: Your Lordship said just now, which is not proper. because to intimidate counsel, we have a duty to perform.
Mahkamah: That one will be filed tomorrow. So, now for the time being?
Encik Karpal Singh: For this threat of contempt, is entirely unwarranted. To intimidate counsel is a very serious matter. We observed the court as much as Your Lordship is.
Mahkamah: About the application, you are going to file it tomorrow. What are we going to do with today’s hearing?
Encik Karpal Singh: This threat of contempt. Yang Arif should withdraw that. Not proper.
Mahkamah: Okay, I withdraw. Is not proper.
Encik Karpal Singh: We will take responsibility if responsibility has to be taken under the law. Counsel must be prepared for that and we are prepared for that. On the other hand, Yang Arif should not threaten us, even before we have filed the application.
Mahkamah: So, now about today’s proceeding?
Encik Karpal Singh: As simple as that, I am saying that until such time Your Lordship hears the application and decides upon it, Your Lordship just cant go on with the matter. I think it would be superfluous to go on something which may be ultimately overtaken by Your Lordship’s ruling tomorrow. What if Your Lordship decides tomorrow that you ought to disqualify yourself. We cant take it for Yang Arif, it can’t be something which Your Lordship should more or less tell us now that, “I am going to, in any event, carry on with the case”. Does not matter. Yang Arif should take it very objectively, I was taken aback by the threat just now. I have been in practice for 41 years; a lot of things are said and done by judges.
Mahkamah: It is not a threat actually.
Encik Karpal Singh: Yang Arif referred to Zainur Zakaria and so forth, that is more or less, even intimidate us from filing the application, which in any event will be irrespective of the interpretation. We will file it. Your Lordship can decide against us, that is another matter. I don’t mind carry on, if Your Lordship wants to. Let’s get on with that witness. Dr. Siew can be called and carry on with him now.
Mahkamah: Better. tomorrow we will see how. Ok, proceed.
Encik Karpal Singh: Right.’

[4] That’s what transpired on 23 November 2010 and I think a reasonable man who reads those words in its proper context would not have the impression that there was a real danger of bias, just because there was an exchanged of those words between a counsel and a trial judge. Therefore, this application is dismissed.


MH: Terima kasih, YA.
KS: We have the instruction My Lord to take this case to the Court of Appeal. And with regards to Your Lordship ruling just now, we apply for a stay of proceeding until such time the Court of Appeal decides upon the appeal.
YA: En Hanafiah?
MH: [] There is a case.
YA: So that’s mean, we have to fix mention date? Maybe 21st January. Permohonan untuk stay pending appeal is granted and the date is fixed on 21st January 2011.
[9.03 a.m] Adjourn.

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