KEHZEN ENGINEERING SDN BHD v SETIA PRECAST SDN BHD

Case Significance

Instructive on the application of the real-danger-of-bias test to a judge's historical and professional associations with a party's counsel, holding that such associations alone do not warrant recusal or transfer.

This High Court decision in the Construction Court at Kuala Lumpur concerns an application to transfer a construction suit to another construction court which was, in substance, an application to recuse the presiding Judicial Commissioner on the ground of a real danger of bias. The defendant, Setia Precast Sdn Bhd, applied under Order 57 rule 1 of the Rules of Court 2012 and the court's inherent jurisdiction to transfer the suit brought by the plaintiff, Kehzen Engineering Sdn Bhd, to a second construction court, effectively seeking the Judicial Commissioner's recusal. The application followed disclosures the plaintiff's solicitors had made: that one of their senior associates had, some years earlier, been a senior associate at the Judicial Commissioner's former firm, and that the managing partner of the plaintiff's solicitors had provided a character testimony letter to the Bar Council as part of the vetting process for the Judicial Commissioner's own judicial appointment. The court, per Rajes Raghavji JC, applied the settled 'real danger of bias' test, asking whether a fair-minded and informed observer, having considered the facts, would apprehend a real danger of bias, and made clear that past professional relationships alone are insufficient for automatic recusal. It distinguished the authorities relied on by the defendant, including cases where the judges concerned had decided that justice would be better served by their recusal, and the English decision where a close relationship between the presiding judge and a witness had warranted automatic recusal, holding those factual matrices to be different from the present. Applying the test to the affidavit evidence, the court concluded that the circumstances disclosed did not meet the legal threshold for a real danger of bias, the associations being either historical or professional in nature and not demonstrating any likelihood of unfair favour or disfavour. The court accordingly dismissed the application for transfer and recusal, with no order as to costs. The judgment is instructive on the application of the real-danger-of-bias test to a judge's historical and professional associations with a party's counsel.