Federal Court (FC) has delivered a judgment on the case of Dato Tan Heng Chew v Tan Kim Hor on 4th Jan 2006. This case is part of the legal battle on wind-up petition of Tan Chong Motors.
It does not break any new ground of law.
In practice, the judge can either recused on his/her own motion or upon the application by the litigants. The ground for such motion is on pecuniary, personal interest or the judge had already made a decision on the same or very similar issues in the earlier suit.
FC reaffirmed the decision by the same court in the case of MPPP v Syarikat Berkerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan and the case of Mohd Ezam & Ors v Ketua Polis Negara. In the latter case, it was a unanimous judgment by a 5-member panel.
The ratio decendi:
In a recusal application, the correct test to be applied is the "real danger of bias" as stipulated under the English case Re Gough. The reference point is the trial judge and not the fair-minded lay observer. The terms of "real danger" is used rather than "real likelihood". This is to ensure that the court is thinking in terms of possiblity rather than probability.
The rational behind this is to maintain the highest standard of public confidence in the judiciary. Having said so, the Federal Court also cautioned that the court should be vigilant not to allow parties to do "judge-shopping" by recusal of Judges.
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