Tommy Thomas @ Mohan A/L K. Thomas v Sharil @ Shahrir Bin Ab Samad

Case Significance

Illustrates the real-danger-of-bias test governing judicial recusal: the Court of Appeal held that findings and statements in a judge's earlier grounds of judgment gave rise to a real danger of bias and ordered the judge recused from the trial.

This Court of Appeal decision concerns an application for a judge to recuse herself from a civil trial on the ground of a real danger of bias. The respondent had sued the appellant and other defendants, including the Malaysian Anti-Corruption Commission and the Government of Malaysia, in the High Court for, among other things, malicious prosecution and the tort of misfeasance in public office, arising out of the respondent's arrest and charge for money laundering. The appellant applied for the High Court judge assigned to try that action to recuse herself, contending that findings and statements made in the judge's earlier grounds of judgment gave rise to a real danger of bias such that she should not hear the proceedings or act as trial judge. The High Court dismissed the recusal application, and the appellant appealed. The applicable test is whether a fair-minded and informed observer, having considered the relevant circumstances, would conclude that there was a real danger, or a real possibility, that the tribunal was biased; actual bias need not be shown. The panel of Supang Lian, Faizah Jamaludin and Ahmad Fairuz Zainol Abidin JJCA examined the impugned findings and statements in the judge's earlier grounds and considered whether, viewed objectively, they crossed the threshold. The court was satisfied that the test was met and that the judge should not continue to hear the matter. It allowed the appeal, set aside the High Court's decision of 14 January 2025, and ordered that the learned High Court judge be recused from hearing all future proceedings and the trial, with costs of RM30,000 here and below. The judgment is a useful illustration of the real-danger-of-bias test and of the circumstances in which statements in a judge's prior grounds may require recusal. The decision also underscores that recusal is concerned with the appearance of justice as much as its substance, so that a judge may be required to step aside even without any suggestion of actual bias, where the objective circumstances would leave a reasonable observer in real doubt about the impartiality of the tribunal that is to try the case.