In an application for recusal the applicant must fulfill the ‘real danger of bias’ test. It must be shown that in the objective view of a fair minded and informed observer, there is a real danger of bias on the part of the judge if he continues to hear and decide the case – this must be proven with clear and cogent evidence.
Question. What if the trial judge makes critical comments about the merits of a party’s case or expresses unfavourable views before the trial or in the midst of the trial? What if the judge makes harsh comments, expresses impatience or annoyance and critical of the party or his counsel?
Does this show real danger of bias in order to be sufficient ground to seek recusal of the judge? Well, very unlikely!
Harsh, caustic, sarcastic, impatience, sharp remarks, adverse comments by a judge of a party’s case or of the party and his counsel, in themselves, do not fulfill the ‘real danger’ test. (Unless the judge is seen to descend into arena or demonstrates animosity or antipathy towards a party or his lawyer.)
The fact that the judge expressed critical remarks of a party’s case at the outset or during trial also do not fulfill the ‘real danger test’ as they do not amount to prejudging the case. On the contrary, such comments may in fact assist the parties to understand what’s going on in the judge’s mind and to address the matter accordingly in their submissions.
See:
1. Residence Hotels & Resorts Sdn Bud v. Seri Pacific Corporation [2013] MLRHU 1270
2. Ewe Saw Lee v. Dato’ Sri Andrew Kam Tai Yeow [2023] MLRHU 868.
R. Jayabalan
MESSRS R. JAYABALAN
