Civil Procedure: Judge - Judicial Recusal - Application by accused ('respondent') for recusal of trial judge in criminal trial - Whether trial judge after having taken plea of guilty from another co-accused ought to be recused from hearing case involving respondent - Whether trial judge might be prejudiced against respondent - Whether there was real danger of bias on the part of trial judge when he heard case involving respondent as propounded in R v. Gough and followed in Malaysian cases of Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor Dengan Tanggungan ('Sungai Gelugor') and Dato' Tan Heng Chew v. Tan Kim Hor & Another Appeal ('Tan Heng Chew')

Criminal Procedure: Joint Trial - When co-accused in joint trial pleaded guilty - Whether decisions in Yap See Teck v. PP ('Yap See Teck') and PP v. Mohd Amin Mohd Razali & Ors ('Mohd Amin') which determined proper procedure to be followed when a co-accused in joint trial pleaded guilty were still good law - Whether decisions in Yap See Teck and Mohd Amin decided prior to Sungai Gelugor and Tan Heng Chew placed primary importance on continuing impartiality of trial judge

The respondent was charged under s 16(a)(A) of the Malaysian Anti-Corruption Commission Act 2009 ('Act') for accepting a bribe of RM1 million from Tan Eng Boon ('Tan'). Tan was charged under s 16(b)(A) of the Act for giving the bribe. The prosecution also preferred an alternative charge under s 109 of the Penal Code. The prosecution applied for a joint trial of the cases against the respondent and Tan, which was granted. Pursuant to a plea bargain application under s 172C of the Criminal Procedure Code ('CPC'), Tan pleaded guilty to the alternative charge and was convicted. The prosecution indicated that they would utilise Tan's testimony in their case against the respondent. The case against Tan was recorded, and he was convicted and sentenced to a fie of RM1.5 million, and in default imprisonment of one year. On the day of trial, the respondent sought to recuse the High Court Judge (trial judge). The primary grounds relied on were that the trial judge had heard and recorded the facts involving Tan and that Tan had agreed to become a prosecution witness. Second, the respondent took exception to a statement made by the trial judge in sentencing Tan. The High Court dismissed the respondent's application for recusal and held that the fact that Tan had pleaded guilty and that Tan had admitted to the facts put to him by the prosecution did not amount to evidence that was automatically admissible against the respondent. Such evidence would have to be adduced formally and would be subject to cross-examination. The High Court placed heavy reliance on the cases of Yap See Teck v. PP and PP v. Mohd Amin Mohd Razali & Ors which determined the proper procedure to be followed when a co-accused in a joint trial pleaded guilty. The High Court further held that the joint trial in the instant case was not predicated on a joint liability in that they were not charged with an offence requiring common intention under s 34 of the Penal Code. Aggrieved by the High Court's decision, the respondent appealed to the Court of Appeal. The Court of Appeal reversed the decision of the High Court and held that there was a basis for the contention that there was a 'real danger of bias' against the respondent. The Court of Appeal held that based on a very low threshold, a possibility of bias could not be ruled out, even though the probability could. The Court of Appeal laid down a critical reminder applicable to all tiers of the courts whereby a presiding judge should refrain from presiding over a trial after he had accepted the plea of guilt from a co-accused. The issue before the Federal Court was 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.

Held (allowing the appeal; the decision of the Court of Appeal is reversed; and the case is fixed for mention before the original High Court for continued hearing):

(1) The effect of the decisions in Mohd Amin and Yap See Teck was that when there was a joint trial and one co-accused pleaded guilty and was 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. The accused who did not plead guilty would be accorded a full opportunity to defend themselves vide the subsisting criminal justice system, which placed 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 regarding joint trials, a practice which was followed in the criminal courts to this day. That said, the reasoning in both Yap See Teck and Mohd Amin ought not to be lightly disturbed again on relatively flmsy grounds. The fact that the test for bias in this country was only adopted after Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor Dengan Tanggungan(Sungai Gelugor) and Dato' Tan Heng Chew v. Tan Kim Hor & Another Appeal (Tan Heng Chew) could not erode the jurisprudence that accommodated and ensured impartiality in the older criminal case law. In view of such impartiality it could not be said that those cases did not address the test of a real possibility of bias. [para 22(i)]

(2) The Court of Appeal failed to consider that the guilty plea of the co-accused was not evidence against the respondent. A judge was required to consider, separately and independently, the evidence against the respondent. The Court of Appeal failed to appreciate that there was no trial when the accused pleaded guilty because there was no issue that required adjudication. As such, the trial judge, when recording, made no finding on the facts that might predispose him against the remaining accused, in this case the respondent. The Court of Appeal also failed to consider that in the course of his proceedings, in recording a guilty plea and being convicted and sentenced, Tan was not a witness. As such, the trial judge did not, at that stage, have to consider, nor accept him, as a credible witness. Tan's credibility was not in issue before the trial judge, establishing that he made no finding against, or in favour of Tan. Therefore, there could be no question of any such predisposition for or against the respondent. [para 22(ii)- (v)]

(3) The Court of Appeal erred in placing heavy reliance on the case of Tan Heng Chew when that case involved a situation where in the course of a striking out application under O 18 r 19 of the Rules of the High Court 1980 ,only affidavit evidence was permissible, the judge at fist instance made findings of fact of credibility against one of the deponents, in reasonably strong terms. It was because of this that both the Court of Appeal and Federal Court determined that it was best that the judge be recused. This differed completely from the present case where there had been no adjudication. [paras 24-26]

(4) The Court of Appeal applied the 'danger of real bias' test to determine whether there was a danger of real bias by the trial judge. However, the test prescribed in R v. Gough as adopted in this jurisdiction was 'a real danger of bias'. There was 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 required 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. The real danger of bias did not prescribe a very low threshold of bias. What it did was 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 did not automatically translate to a low threshold. [paras 28-29]

(5) The Court of Appeal erred in concluding that any presiding judge who heard the facts of a case in recording a plea of guilt by a co-accused in relation to the offering of a bribe resulted in a non-erasable bias by the presiding judge, such that he was automatically predisposed against the remaining accused. A judge was a professional who undertook the job of determining the guilt or otherwise of an accused such as the respondent, based on evidence which had been the subject of the due process of law. That meant he relied on evidence that had been subject to the law of evidence and cross-examination. A judge, unlike jurors, was trained in the law to remain impartial despite reading facts relating to a case. This was apparent in today's world where social media ensured that not only the facts of a case, but a myriad of opinions and comments, were virtually inescapable. It was therefore incorrect to assume that a mere recording or sighting of a factual matrix would create a bias against the respondent. A judge had to take a judicial oath of office, which required adherence to the Federal Constitution ('FC'). Article 5 FC, which enshrined the right to life, encompassed the right to a fair trial. The essence of a fair trial was an impartial judge. The law of natural justice comprising a part of the common law was an intrinsic part of the FC. Spurious and insubstantial attempts to allege bias could not undermine this fundamental aspect of a judge's function and independence. [para 30(i)-(iii)]

(6) The Court of Appeal failed to consider the important fact that even if the case was referred to another judge, the record of the plea of guilt and the facts of the case as adduced by the prosecution and agreed to by the co-accused would be equally available to the new judge. Therefore, any allegation of a real danger of bias was palpably unfounded in relation to the original court and original presiding judge. [para 30(iv)]

Case(s) referred to:

Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd [2004] 1 MLRA 20 (refd)

Dato' Tan Heng Chew v. Tan Kim Hor & Another Appeal [2006] 1 MLRA 89 (distd)

Gan Boon Aun v. PP [2016] 5 MLRA 443 (refd)

Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-Sama Serbaguna Sungai

Gelugor Dengan Tanggungan [1999] 1 MLRA 336 (refd)

Mohamed Ezam Mohd Nor & Ors v. Ketua Polis Negara [2001] 1 MLRA 630 (refd)

Porter v. Magill [2002] 1 All ER 465 (refd)

PP v. Mohd Amin Mohd Razali & Ors [2002] 1 MLRH 788 (refd)

R v. Gough [1993] AC 646 (folld)

Seet Ah Ann v. PP [1950] 1 MLRH 138 (refd)

Surinder Singh Kanda v. Government of Malaya [1962] AC 322 (refd)

Toh Ah Loh & Mak Thim v. Rex [1948] 1 MLRH 143 (refd)

Yap See Teck v. PP [1982] 1 MLRH 455 (refd)

Legislation referred to:

Criminal Procedure Code, s 172C

Federal Constitution, art 5

Malaysian Anti-Corruption Commission Act 2009, s 16(a)(A), (B)

Penal Code, ss 34, 109, 165

Rules of the High Court 1980, O 18 r 19

Counsel:

For the appellant: Manoj Kumar (Julia Ibrahim & Lailawati Ali with him); AG's Chambers

For the respondent: Tan Hock Chuan (Satharamban, Michelle Lai, Natalie Tan & Aaron Lau wih him); M/s Tan Hock Chuan & Co

[For the Court of Appeal judgment, please refer to Tengku Adnan Tengku Mansor v. PP [2020] 4 MLRA 232]

JUDGMENT

Nallini Pathmanathan FCJ:

[1] This is an appeal by the prosecution against the decision of the Court of Appeal reversing the High Court trial judge's decision dismissing the respondent, Tengku Adnan's application to recuse him from adjudicating in the criminal trial.

Factual Background

[2] The factual background is that the respondent was charged under s 16(a)(A)of the Malaysian Anti-Corruption Commission Act 2009 ('Act') for accepting a bribe of RM1 million from Tan Eng Boon ('Tan'). An alternative charge under s 165 of the Penal Code was also preferred against him. Tan was charged under s 16(b)(A) of the Act for giving the bribe, as well as an alternative charge under s 109 of the Penal Code.

[3] The prosecution applied for a joint trial of the cases against the respondent and Tan. This was granted.

[4] Prior to trial, Tan applied to plea bargain pursuant to s 172C of the Criminal Procedure Code ('CPC'). Tan pleaded guilty to the alternative charge and was convicted. The prosecution indicated that they would utilise Tan's testimony in their case against the respondent.

[5] Therefore in accordance with well-settled principles and case-law (see Yap See Teck v. Public Prosecutor [1982] 1 MLRH 455) where a co-accused who pleads guilty is required by the prosecution as his witness, the case and the sentencing process is disposed of immediately. This is to avoid the danger that if sentencing is postponed then the co-accused may weight his evidence towards the prosecution in the hope of getting a lighter sentence. Accordingly, the case against Tan was recorded and he was convicted and sentenced to a fie of RM1.5 million, and in default imprisonment of one year.

[6] On the day of trial the respondent sought to recuse the trial judge. The primary grounds relied on were that the trial judge had heard and recorded the facts of the case involving Tan and that Tan had agreed to become a prosecution witness. Secondly the respondent took exception to the following statement made by the trial judge in the course of sentencing Tan:

"... It cannot however be emphasised enough that corruption is a very serious crime. It undermines the social and economic development of the country and adversely affects the fabric of society."

The Decision Of The High Court

[7] The High Court dismissed the respondent's application for recusal. In summary His Lordship held that:

(a) The fact that Tan had pleaded guilty and that Tan had admitted to the facts put to him by the prosecution did not amount to evidence that was automatically admissible against the respondent. Such evidence would have to be adduced formally and would be subject to cross-examination by counsel. There was no question of the respondent having admitted to those facts;

(b) Judges are not lay jury being professionally trained to deal with joint trials where one of the co-accused has pleaded guilty. Moreover they take their oaths of office under the Federal Constitution (FC) and cannot easily succumb to request to recuse on spurious and tenuous reasons;

(c) Yap See Teck v. PP and PP v. Mohd Amin Mohd Razali & Ors [2002] 1 MLRH 788 which dealt with the same point both determined that a judge in a joint trial was neither impartial nor biased when a co-accused pleaded guilty and determined the proper procedure to be followed when a co-accused in a joint trial pleaded guilty;

(d) The joint trial in the instant case was not predicated on a joint liability in that they were not charged with an offence requiring common intention under s 34 of the Penal Code;

[8] Accordingly he held that there was no basis for the contention that there was a 'real danger of bias' against the respondent, which is the correct test to apply.

The Decision Of The Court Of Appeal

[9] The Court of Appeal reversed the decision of the High Court on the following grounds:

(a) Yap See Teck v. Public Prosecutor (above) was decided without the benefi of the 'real danger of bias' test as approved by the Federal Court. Neither was PP v. Mohd Amin Mohd Razali & Ors (above);

(b) The Court of Appeal was in a better position to consider the merits of an application for recusal as stated by this court in Dato'Tan Heng Chew v. Tan Kim Hor & Another Appeal [2006] 1 MLRA 89;

(c) There was a 'danger' that the trial judge might be prejudiced and that danger was real. This was because it was not possible for him or any presiding judge who had looked and considered the facts of the case and the documentary exhibits in support of the guilty plea to be able to "completely obliterate" this crucial fact from his mind.

(d) I can do no better than to quote from the judgment:

"... the test here is not whether there would be real bias on his part but a danger that there be so and we must bear in mind the words of Lord Goff that the test is promulgated on the basis of a very low threshold of a possibility and not a probability of bias ... In other words, such a possibility of bias could not be ruled out, even though the probability could.";

(e) The ratio of the decision above was applicable to all tiers of the courts whereby a presiding judge should now refrain from presiding over a trial after he had accepted the plea of guilt from a co-accused.

Our Analysis And Decision

[10] We have heard and considered both the oral and written submissions of learned counsel. We have given careful consideration to the judgments of the High Court and the Court of Appeal.

The Law

[11] It is important to reiterate at this juncture that both tiers of the courts below, with respect, correctly relied on the law in relation to bias. It is in the application of the test to the facts and circumstances of the case that both parties arrived at diametrically opposing conclusions.

[12] The governing law in this country applies the test laid down inR v. Gough [1993] AC 646 and is summarily stated to be a 'real danger of bias'. The test was fist adopted in Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 1 MLRA 336 by Edgar Joseph J in a judicial review case, reiterated in Mohamed Ezam Mohd Nor & Ors v. Ketua Polis Negara [2001] 1 MLRA 630, the only criminal case dealing with bias in the context of a habeas corpus application and Dato' Tan Heng Chew v. Tan Kim Hor & Another Appeal [2006] 1 MLRA 89, another civil matter relating to striking out under O 18 r 19 Rules of the High Court 1980 (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.

'Real Danger of Bias'

[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 fist 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 ..."

[15] In Sungai Gelugor, Edgar Joseph Jr FCJ explained that with this test, the opinion of the Court substituted that of the reasonable man. Secondly, the real danger test he said, was a reasonable compromise between the 'reasonable suspicion' and 'real likelihood' of bias test meaning that the court was contemplating a lower standard than that a likelihood or probability of bias. It required a 'real possibility of bias'. It is important to comprehend that this court did not state that it was imposing a 'very low' threshold.

[16] Equally importantly the judge went on to state that this was the preferred test as it would avoid the setting aside of judgments upon "quite insubstantial grounds and the flimsiest pretexts of bias".

[17] And in Tan Heng Chew, the Federal Court speaking through Hamid Mohamed FCJ (later CJ) held that even though R v. Gough had been refined in the UK in Porter v. Magill [2002] 1 All ER 465, this was to ensure the law was in line with European jurisprudence, which was not applicable in Malaysia. More significantly, the court held that it was incumbent upon the court to be vigilant not to allow parties to engage in 'judge-shopping' under the guise of recusal applications.

Application Of The Law To The Facts Of The Instant Case

[18] Before us the primary question is whether the Court of Appeal applied the correct law to the facts correctly so as to arrive at a properly reasoned and correct decision. That requires an examination and analysis of the reasoning of the judgment of the Court of Appeal.

First Ground Put Forward By The Court Of Appeal

[19] At the outset the fist reason put forward by the Court of Appeal for deciding that recusal was warranted is that the High Court Judge had relied on Yap See Teck v. PP and PP v. Mohd Amin Mohd Razali where the 'real danger of bias' test was not applied.

[20] The court was effectively stating that without the R v. Gough test, which was only introduced to this jurisdiction in 1993 in Sungai Gelugor, the courts of Malaysia had for decades prior to the case, not dealt with the issue of bias or impartiality correctly or at all.

[21] Can it be said that criminal and civil hearings and trials where recusal was sought prior to Sungai Gelugor, the courts had dealt with those cases improperly or without ensuring partiality?

[22] The further implication of such reasoning is that Yap See Teck was incorrectly determined, and Mohd Amin Mohd Razali was decided per incuriam, as it is a 2002 case and Sungai Gelugor was not referred to. This to my mind, with respect, is an erroneous proposition of law for the following reasons:

(i) Yap See Teck which dealt a joint trial where the accused persons were charged with jointly committed gang robbery, dealt directly
with the issue of how a trial judge is to proceed when one coaccused pleads guilty and the other/s do not. It is on all fours with the present case. In Yap See Teck, Azmi J (later FCJ) one of our foremost judges, relied on Toh Ah Loh & Mak Thim v. Rex [1948] 1 MLRH 143 and Seet Ah Ann v. Public Prosecutor [1950]1 MLRH 138 following the practice in the Criminal Courts in England and citing Abott J. Most pertinently, it was held that the fact that the President had recorded the facts of the prosecution case when convicting one accused, would not be prejudicial to the other accused on trial, as the fact of such a guilty plea having been taken and the record of conviction would be equally available to any other judge as much as that presiding judge. In other words, any other judge would be similarly circumstanced, as the fact of the co-accused having pleaded guilty and the record of his consent to the facts relied upon by the prosecution, would be available to that judge too. In Mohd Amin Mohd Razali the same reasoning was adopted by the learned Zulkifl J (later CJM). The Court of Appeal, with respect, did not consider this salient point in determining that these two cases were inapplicable.

(ii) The effect of the decisions in Yap See Teck and Mohd Amin Mohd Razali 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. The accused person who did not plead guilty would be accorded a full opportunity to defend himself 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 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;

(iv) The Court of Appeal failed to appreciate that there is no trial when the accused pleads guilty. There cannot be a trial, because there is no issue that requires adjudication. As such, the trial judge when recording, makes no finding on the facts that might pre-dispose him against the remaining accused, in this case the respondent;

(v) The Court of Appeal also failed to consider that in the course of his proceedings in recording a guilty plea and being convicted and sentenced, Tan was not a witness. As such, the trial judge did not at that stage, have to consider, nor accept him, as a credible witness. Tan's credibility was not in issue before the trial judge, establishing that he made no finding against, or in favour of Tan. Therefore, there could be no question of any such predisposition for or against the respondent.

[23] To that extent we are of the view that this ground is without merit and does not warrant the trial judge being recused.

Second Ground Put Forward By The Court Of Appeal

[24] Citing Dato' Tan Heng Chew's case, the Court of Appeal relied, inter alia, on the sentiment expressed by the Judge in that case, namely that in order to maintain the highest standard of public confidence in the judiciary the judge would err on the side of recusal. It is evident from a perusal of the case that the Judge was speaking with reference to the particular facts of that case.

[25] Further, with the greatest respect, the Court of Appeal does not appear to have given weight to the sentence following that, namely the cautionary note that each case was 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.

Third Ground Put Forward By The Court Of Appeal

[26] The other salient factors that were overlooked by the Court of Appeal in applying this passage in vacuo as it were, are that:

(a) Tan Heng Chew's case involved a situation where in the course of a striking out application under O 18 r 19 where only affidavit evidence is permissible, the judge at fist instance made findings of fact of credibility against one of the deponents, in reasonably strong terms. It was because of this that both the Court of Appeal and Federal Court determined that it was best that the judge be recused. This is completely different from the present case where there has been no adjudication whatsoever as explained above;

(b) The Court of Appeal in applying the 'real danger of bias' test explained it thus: "... the test here is not whether there would be a real bias on his part but a danger that there be so and we must bear in mind the words of Lord Goff that the test is promulgated on the basis of a very low threshold of a possibility and not a probability of bias ... In other words, such a possibility of bias could not be ruled out, even though the probability could."

[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.

Fourth Ground Put Forward By The Court Of Appeal: The Requirement To Completely Obliterate The Facts In The Presiding Judge's Mind

[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:

(i) A Judge is a professional 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. That means he relies on evidence that has been subject to the law of evidence and cross-examination. A judge, unlike jurors, is trained in the law so as to remain impartial despite reading facts relating to a case. This is particularly apparent in today's world where social media ensures that not only the facts of a case, but a myriad of opinions and comments, are virtually inescapable. It is therefore incorrect to assume that a mere recording or sighting of a factual matrix will create a bias against the respondent;

(ii) A judge has to take a judicial oath of office, which requires adherence to the FC. Article 5 FC which enshrines the right to life, encompasses the right to a fair trial. (See Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd [2004] 1 MLRA 20 and Gan Boon Aun v. PP [2016] 5 MLRA 443). The essence of a fair trial is an impartial judge as famously stated in Surinder Singh Kanda v. Government of Malaya [1962] AC 322 where Lord Denning described one of the twin pillars of the law of natural justice as comprising, inter alia, an impartial tribunal or judge. The law of natural justice comprising a part of the common law is an intrinsic part of the FC. This fundamental aspect of a judge's function and independence cannot be undermined by spurious and insubstantial attempts to allege bias.

(iii) The practice of a presiding judge continuing to hear a joint trial after one co-accused has pleaded guilty is settled law in this jurisdiction, based on a long line of authorities that implicitly recognised and affirmed that impartiality was maintained in such a joint trial. The reasoning in that line of case law, in both Yap See Teck and Mohd Amin Mohd Razali ought not to be lightly disturbed, again on relatively flimsy grounds. That is why a prescribed procedure has been advocated and followed for several decades. That procedure prescribed by case-law takes into consideration the possibility of bias and has dismissed it on cogent grounds. In short, it is implicit that the conduct of a trial in such a manner meets, and does not transgress, the fundamental requirement of impartiality in a judge. The fact that the test for bias in this country was only adopted after Sungai Gelugor cannot erode the jurisprudence that accommodated and ensured impartiality in the older criminal case law. In view of such impartiality it cannot be said that those cases did not address the test of a real possibility of bias;

(iv) Finally the Court of Appeal failed to consider the important fact that even if the case is referred to another judge, the record of the plea of guilt and the facts of the case as adduced by the prosecution and agreed to by the co-accused would be equally available to the new judge. Therefore any allegation of a real danger of bias is palpably unfounded in relation to the original court and original presiding judge.

[31] For these reasons I am of the considered view that the Court of Appeal committed errors of law and applied the law incorrectly to the facts of this case. This warrants intervention and reversal. The decision of the Court of Appeal is reversed.

[32] The case is fied for mention in the original High Court for continued hearing.