Anwar Ibrahim Sodomy II – The Recorded Truth – 26 November 2010

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

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

[8.33 a.m.] Pihak-pihak masuk ke Kamar Hakim
[8.39 a.m.] Pihak-pihak keluar dari Kamar Hakim.

[8.42 a.m.]
MHZ: Dengan izin YA, hari ini ditetapkan hujahan balas pihak pendakwaan. YA, pihak pendakwaan telah menyediakan hujahan balas bertulis. Penghujahan ini telah disediakan di dalam Bahasa Inggeris. Izinkan saya berhujah di dalam Bahasa Inggeris.
The grounds put forward in support of the application could be found in the affidavit in support of the applicant at paragraphs 5, 6, 7, 8, 9 and 10.
Essentially, the applicant contended that YA had intimidated learned counsel for the Applicant in the course of the trial that he might be cited with contempt of the court.
However, it must be noted that this is a second attempt by the Applicant to recuse YA. On both occasions, including the present application, the initial reason given by learned counsel to commence the recusal application was that YA had made ruling not in favour of the applicant.
In the earlier application, dated 8.2.2010, it could be observed that the said application was filed following the rulings of YA in dismissing two applications by the applicant to cite Utusan Malaysia concerning reports of the trial published in the said papers on 4th and 5th February respectively.
In the present application, the initial reason given also concerned the ruling of YA in refusing to allow learned counsel for the applicant to have accessed to the notes of the doctor as shown in paragraph 5 of the applicant’s afidavit in support as follows:
“5. Setelah Hakim tersebut memberi keputusan beliau, peguam saya tersebut telah pun memberi notis kepada Hakim bahawa beliau adalah diarahkan oleh anakguam beliau untuk memohon agar Hakim tersebut menarikdiri daripada mendengar perbicaraan saya atas alasan bahawa Hakim tersebut tidak mematuhi keputusan Mahkamah Agung di dalam United Asian Bank Berhad v Tai Soon Heng Constuctions Sdn Bhd [1993] 2 CLJ 31.”
It could be clearly observed that on both occasions, instructions were given by the applicant to his counsel to recuse YA when rulings were made against them.
It well settled law there is clearly no basis to recuse a trial judge merely because ruling was made against an applicant. In Alor Janggus Soon Seng Trading Sdn Bhd & Ors v Sey Hoe Sdn Bhd and Ors [2003] 1 MLJ 78 at page 87, the Court of Appeal explained that:
“From what has been said it must be equally obvious that whether a decision is favourable or adverse depends upon whom it is perceived ie, by the respondents or by the applicants. Where it is favourable to one party, there would be no application for recusal for sure; but where it is adverse to the other party there might be, as in the case of the applicant here. Surely, a decision that is adverse to a party is not per se ordinarily a ground to disqualify a judge as observed by Lord Bingham CJ and Mason J above”
The Prosecution had informed this Honourable Court earlier that is on 25th November 2010 that, it was preposterous to apply for the recusal of YA merely because the judgment of ruling was given not in the applicant favour. It was an interpretation of the law and had nothing to do with the conduct of YA in handling the trial.
Having said so YA, it is not disputed that YA had commented on the current law as it stands that an application to recuse a judge can tantamount to contempt of the court. It was clearly an advise and reminder at its highest, like when a judge reminded a witness on the consequences of telling lies in court and NOT INTIMIDATION as alleged by learned counsel for the applicant. The Court of Appeal in Che Minah bt Remeli v Pentadbir Tanah, Pejabat Tanah Besut, Terengganu & Ors [2008] 5 MLJ 206 at page 221, expressed the same sentiment, as commented by YA, as follows:
“[37] It is significant to that any allegation of reasonable apprehension of bias would bring into sharp focus and would call into QUESTION NOT ONLY THE PERSONAL INTEGRITY OF THE JUDGE BUT ALSO THE INTEGRITY OF THE ENTIRE ADMINISTRATION OF JUSTICE. It is advisable that any counsel who proposes to embark on this perilous course of action must be certain lest he runs foul of the law and be CITED FOR CONTEMPT.” (Emphasis supplied)
Similar sentiment was also expressed by the Court of Appeal in Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin & Ors [1995] 2 MLJ 213 which is at tab 2 at page 225 as follows:
“ The law will not suppose a possibility of bias in a judge who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea: B1 Comm 361. In consequence, the court has regarded with particular seriousness allegations of partiality or bias on the part of a judge or a court as punishable contempts of court: see 9 Halsbury’s Laws of England (4th ed) at p 21, para 27.”
YA, I would like to cite the case of PP v Seeralan [1985] 2 MLJ 30. YA, I would like to refer to the head the notes, holding no.1.
“Held:
(1) the record clearly revealed the uncompromising attitude of the respondent and his unabashed arrogance and insolence towards the Magistrate. His continued accusations that the court was biased, unfair and prejudiced clearly amounted to a contempt of court. Such conduct and behaviour were not just disorderly acts nor a mere use of unbecoming language. They constituted a contempt of court of a serious kind, without any mitigating factor;”
In the present application My Lord, Yang Arif had merely commented on the current law as it stands as revealed in the 2 cases above. There is no shred of any intimidation whatsoever. If at all any intimidation could be founded, it must have come from the brazen conduct of learned counsel for the Applicant insisting Yang Arif ‘to step down’ from hearing this case. Learned counsel for the Applicant submitted that:
“This trial is being monitored by representatives of various High Commissions and Embassies. Your Lordship is under close scrutinity. Your Lordship has to be man enough to rise up to the occassion 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”
Prior to this Yang Arif, there were 2 instances where the conduct of the learned counsel can be considered as contempt. First, when he says YA is a liar and secondly when hence YA’s ruling is perversed. These are 2 instances where the learned counsel did not conduct himself properly and tantamount to contempt.
Hence, it is abundantly clear that the grounds put forward by the Applicant to recuse Yang Arif are not only inconsistent but frivolous. This application, indeed, is actuated by mala fide to delay the trial of the case. Plainly, on the flimsiest of reason, the Applicant sought to recuse Yang Arif for hearing this case and this is the second time he is doing so.
Presumption of Impartiality
The cornerstone of any judicial and legal system is the presumption of impartiality reposed on the judicial arbiter. This principle was lucidly explained by this Court of Appeal in Che Minah bt Remeli v Pentadbir Tanah, Pejabat Tanah Besut, Terengganu & Ors at tab 7 (Supra) at p 221:
“[35] 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 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. And that presumption is deeply rooted in our legal system. That being the case, the burden is on the party arguing for 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 & Whiteaway Fisheries Ltd (1994) 133 NSR (2nd) 50 CA, at pp 60-61, the court observed that the reviewing courts have been hesitant to make a finding of bias on the part of a judge, in the absence of convincing evidence to that effect.”
Similar sentiment was also expressed by NH Chan JCA in Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin & Ors (Supra) at tab 2 at p 228 where it was explained that:
“The principle applicable for disqualification are that which I have stated in this judgment. It is that the law will not suppose a possibility of bias in a judge hearing the case whose authority greatly depends on the presumption and idea that he will administer impartial justice and any attempt at lowering his authority or to undermine or impair it would interfere with the performance of his judicial duties.” (Emphasis supplied)
It is abundantly clear that for judicial arbiters to dispense justice without fear or favour, the fundamental and inherent requisite is the impartiality reposed in them. It had been said that ‘Justice is portrayed as blind not because she ignores the facts and circumstances of individual case but because she shuts her eyes to all considerations extraneous to the particular case.” (Please seeLocobail (UK) Ltd v Bayfield Properties Ltd and another [2000] 1 ALL ER 65 at p 69)

(i) Pecuniary or Proprietary Interest
YA, in regards to this application we submit that there is no pecuniary or proprietary interest. It was explained by NH Chan JCA in Hock Hua (Sabah) Bhd v Yong Liuk Thin & Ors (Supra) at p 223 had explained that:
“ Other than an interest which is pecuniary or proprietary in the subject matter of the proceeding, the law does not assume bias so as to disqualify a judge from acting in his capacity. Bias with regards 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.”
There is no allegation whatsoever against YA that YA would not decide a case based on evidence on the contrary, YA, in the latest ruling had ordered the whole set of proforma form referred by PW3 to be supplied to the defence over and above the objection of the Prosecution.
It was also explained by Lord Woolf in R v Gough [1993] AC 646 at page 673 that:
“ I therefore suggest that Suxxes Justices case [1942] 2 KB 256 neither creates, nor should it be placed in, a separate category. The proper test which Lord Goff has identified should have been applied in that case as it was in the Camborne Justices case [1995] 1 QB 41. There is only one established special category and that exists where the tribunal has a pecuniary or proprietary interest in the subject matter of the proceedings as in Dimes v Proprietors of Grand Junction Canal, 3 H.L Cas. 759.” (Emphasis supplied)
Likewise, there was no allegation of any pecuniary or proprietary interest against YA to justify any recusal herein.
Be that as may, it was explained in Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin & Ors (supra) that when a judge has a pecuniary or proprietary interest in a case, the law assumes bias. At page 223 of the judgment, NH Chan JCA said:
“Other than an interest which is pecuniary or proprietary in the subject matter of the proceeding, the law does not assume bias so as to disqualify a judge from acting in his judicial capacity.”
When the above principle was juxtaposed with the factual matrix of the case, NH Chan JCA concluded at page 226 of the judgment that:
“The instant case is not a case of a judge who has any direct pecuniary or proprietary in the subject matter of the proceeding. It is, of course, plain that in such a case the law assumes bias.”
It has also been held that the rule on automatic disqualification should not be confined to financial interest only but ought to be extended to other non-financial interests as well as shown in R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No.2) [1999] 1 All ER 577, which was referred by the Court of England in Locabail (UK) Ltd v Bayfield Properties Ltd and another (supra) at page 71. I skip that para. I move further to the next para 23.
However, it could be easily discerned that the factual marix of the instant case does not come anywhere near the perimeters where the rule of automatic disqualification would apply.
Coming back to the case of PP v Lau Tuck Weng & Anor [1988] 3 MLJ 217 cited by learned counsel for the applicant where KC Vorah J (as he then was) recused himself from hearing the case on the ground of public consideration, it could be clearly observed as well that the factual matrix of this case does come anywhere near Lau Tuck Weng’s case.
If the circumstances of the case, where the law does not assume bias on the part of the judicial arbiter to warrant his automatic disqualification, in order to sustain the disqualification of the judicial arbiter of a case on allegation of bias, ‘there must be circumstances or facts which have been shown to exist which would lead a reasonable and fair-minded onlooker or which would have given reasonable ground for him to suspect that the case would not be decided according to the evidence.’ This passage can be seen at page 228 of the caseHock Hua Bank.
And it was also explained in the earlier part of the judgment at page 226 that:
“There must be circumstances which would lead a reasonable and fair-minded person sitting in court to have reasonable ground to suspect that the judge would appear to be bias.”
The same principle was also enunciated in the case of Locabaill (UK) Ltd v Bayfield Properties Ltd and another (supra) at page 73 as follows:
“The most effective protection of the righrt is in practice afforded by a rule which provides for the disqualification of a judge, and the setting aside of a decision, if on examination of all the relevant circumstances the court concludes that there was a real danger (or possibility) of bias.”.
As regard to the test we are in agreement with the test stated by our learned friend. Therefore I would like to skip and go straight to para 32.
There are also situations where real danger of bias could subsist and those situations were explained in Locabail’s case at page 77.
“25. 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 or 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 previous judicial decisions; or extra-curricular utterance (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, solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers (KFTCIC v Icori Estero SpA (Court of Appeal of Paris, 28 June 1991, International Arbitration Report. Vol 6#8 8/91)). By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case; or if in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person’s evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v Kelly (1989)167 CLR 586); or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous consideration, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection.”
Nonetheless, those situations as explained in Locobail’s case are not applicable and relevan to our case.
It cannot be gainsaid that in defending the Applicant in this case, it is not only expected of learned counsel for the Applicant to defend him without fear or favour but it is also their paramount duty to do so. However, in so doing, learned counsel for the Applicant, as officer of the court, ought to have been more circumspect in making allegations against the learned trial judge, when such allegations were unsubstantiated and frivolous. Wild and unfounded allegations are more akin to political speech rather than legal submission before a court of law. It is clearly not acceptable to be impolite and to misuse the court as a forum to advance oblique purposes. There are ethics to be observed. Citing from Dato Mokhtar bin Hashim & Anor v PP [1983] 2 MLJ 232 at p 283, the case referred to by learned counsel for the Applicant himself, the Federal Court explained that ‘the duty of counsel to act fearlessly….’ but wholly within the bounds of propriety and courtesy in the discharge of their duties as officers of the court. They must judiciously use the right and privilege of appearing as such court and not to abuse it’ (Emphasis supplied) para 34 [] dato mokhtar hashim, the case referred by the learned counsel at page 283
It was emphasized by the Federal Court in Mokhtar Hashim’s case with reference to counsel as officer of the court.
YA, we now come to “there is no evidence to support the allegation of ‘real danger of bias’.
The Prosecution adverted in the earlier part of this submission that at its highest, Your Lordship was merely advising and reminding the parties on the current status of the law. There was absolutely no basis to impute any intimidation on the part of Yang Arif. NH Chan JCA in Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin & Ors (supra) at p 228 explained that:
“The principles applicable for disqualification are that which I have stated in this judgment. It is that the law will not suppose a possibility of bias in a judge hearing the case whose authority greatly depends on the presumption and idea that he will administer impartial justice and, and any attempt at lowering his authority or to undermine or impair it would interfere with the performance of his judicial duties. To disqualify a judge, there must be circumstances or facts which have been shown to exist which would lead a reasonable and fair-minded onlooker or which would have given reasonable ground for him to suspect that the case would not be decided according to evidence.”
It is also useful to refer to the illustrations and observations made by the Court of Appeal in Locobail (UK) Ltd v Bayfield Properties Ltd and another [2000] 1 ALL ER 65 at p 76 concerning the objection taken on the issue of real danger of bias and the Court of Appeal stated that:
“If objection is then made, it will be the duty of the judge to consider the objection and exercise his judgment upon it. He would be wrong to yeild to a tenous or frivolous objection as he would ignore an objection of substance. We find force in observations of the Constitutional Cour of South Africa in President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 at 177, even thought these observations were directed to the reasonable suspicion test:
“It follows from the foregoing that the correct approach to this application for the recusal of members of this Court is objective and the onus of establishing it rests upon the applicant. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.” (Emphasis supplied)
At p 77 of Locobail’s case, the Court of Appeal further explained that:
“We also find great persuasive force in three extracts from Australian authority. In Re JRL, ex p CJL (1986) 161 CLR 342 at 352 Mason J, sitting in the High Court of Australia, said:
‘Although it is important that justices must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that 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.’
The allegation of intimidation was clearly misconceived and unwarranted.
There was not an iota of evidence which could be said to give rise to any real danger of bias in this case.
Hence, upon the foregoing reasons, the Respondent respectfully prays that this application be dismissed forthwith as it is clearly devoid of any merits whatsoever.
PC: YA, my learned friend, KS is now in the Court of Appeal as he has indicated to your Lordship yesterday. your Lordship has suggested for my learned friend KS to ask for an a stand down but unfortunately the Court of Appeal has refused. We would like to reply to the submission of the Prosecution.
YA: Can’t anyone of you do that?
PC: My learned friend, KS would want to do that.
YA: What I’m going to do is this, I’m going to give my decision on the next date which is fixed on the 6th of December. Surely I need time to decide. If you wish to reply you can give the written reply by Monday.
PC: By Tuesday, YA
YA: Okay. The decision will be delivered on 6th December and the trial proper will be fixed on the same date. So we adjourn to 6th December 2010.
[9.23 a.m.] Adjourn.

courtesy of Malaysian Story