per Judicial Commissioner Tuan Ong Chee Kwan
In the recent High Court case of Deleum Primera Sdn Bhd v Mazrin bin Ramli & Ors  4 AMR 435, the Learned Judicial Commissioner Tuan Ong Chee Kwan dismissed several recusal applications described as "cavalier" with costs of RM15,000 for each application. Interestingly, the court ordered the costs to be borne by the counsel in their personal capacity.
On 5 November 2020, the plaintiff commenced a civil suit and applied ex-parte for various injunctive reliefs against the defendants in the nature of Anton Pillar and Mareva orders. During the remote e-Review hearing of the ex-parte application held the next day, the Judicial Commissioner requested the plaintiff to provide further research and submissions to clarify certain issues and to assist the court in reaching a determination. In doing so, the judge drew the plaintiff's attention to a few English cases for the plaintiff's response.
As instructed by the court, the plaintiff filed supplemental affidavits and supplemental submissions on Sunday, 8 November 2020 as the hearing was fixed the following Monday via Zoom. Given the urgency of the matter and the fact that the Commissioner for Oaths' office was closed during the weekend, the supplemental affidavits were signed but not affirmed. Further, the supplemental affidavits were filed solely in the English language. During the ex-parte Zoom hearing, the court granted the plaintiff certain ex-parte orders and thereafter allowed the plaintiff's undertaking to regularise its cause papers.
Following the execution of the ex parte orders, several of the defendants applied to stay/set aside the ex-parte orders. At the Zoom hearing, the defendants raised technical objections on the supplemental affidavits which were unaffirmed and filed in English. After these objections were dismissed, the defendants applied for the judge to be recused from hearing the matter on the basis that he had been "brought into the arena of the disputes".
Grounds for recusal
Although the defendants had the opportunity to review the relevant transcripts and Zoom recording, the defendants proceeded to file their recusal applications based on the following grounds:
- The plaintiff had cited the name of the court and/or referred to the name of the judge when rebutting the defendants' technical objections regarding the unaffirmed affidavits. In particular, it was contended that the plaintiff had wrongly stated that the court had allowed its undertaking to regularise its cause papers.
- The judge had assisted the plaintiff by referring to the English cases and had been actively involved in "correcting and/or repairing" the plaintiff's ex-parte applications, thereby giving rise to a real danger of bias.
Decision of the court
In arriving at its decision, the court reaffirmed the established principle that an applicant in a recusal application must meet the high threshold of satisfying the "real danger of bias" test, namely that there was a real danger that the judge might unfairly regard with favour or disfavour the case of a party to the issue under consideration by him.
Whether the plaintiff dragged the court into the arena of the dispute
The judge found that based on the court's records, the plaintiff's statement on the undertaking to regularise its cause papers was an accurate reflection of the facts. This could not constitute "dragging the learned JC into the arena of the dispute" nor did it warrant a suggestion that the court was assisting the plaintiff in agreeing with the plaintiff's statement that the undertaking was given.
Whether the judge assisted the plaintiff when referring case law at ex-parte hearing
The court held that it is common practice for a judge to raise any issue that may be troubling him to the counsel appearing before him when considering an application, whether ex-parte or otherwise. In seeking such clarification, the judge was merely discharging his judicial function to satisfy himself that all relevant legal issues were being addressed to enable him to determine the application. Further, it was held that this practice has never been a source of complaint let alone a reason to recuse the judge.
The court concluded that the defendants had failed to provide any cogent evidence to show that there was a "real danger of bias" on the judge's part and dismissed the recusal applications.
Costs ordered against counsel in personal capacity
The court further found that the recusal applications were filed in such a cavalier manner and the grounds relied upon were so frivolous, flimsy, and disrespectful that not only did the applications wholly fail to meet the high threshold required, but they even bordered on contempt of court. The judge accordingly ordered that the costs be borne by the counsel personally.
The High Court's decision has reaffirmed the high threshold to be met for recusal applications. Such applications must always be supported by cogent evidence and should only ever be made after considering the harm that an unfounded recusal application may inflict on the integrity of the judiciary.
This decision emphasises that unsubstantiated recusal applications may border on contempt of court on the part of the applicant's counsel. It is incumbent on lawyers to ensure that any recusal application must have well-founded basis and to advise their clients accordingly.
The High Court's decision is currently pending appeal.
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