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Mukhtar bin Abdul Rahman v Pendakwa Raya

[2008] MLJU 591

LAW 4311
Zulaaikha Binti Mohd Apandi 1113280
Sir Raja Badrol Hisham

This case is an application for a change of Magistrate during hearing when the Magistrate
ceases to to exercise jurisdiction under Section 261 of the Criminal Procedure Code. The
application was made on the ground that the trial Magistrate is in a position of bias against the
accused when she assumed the function of DPP. The defence and the prosecution argued on
different test to ascertain the biasness of the Magistrate i.e the reasonable suspicion of bias and
real danger of bias respectively.
The accused was charged under Section 182 of the Penal Code at the instance of Badan
Pencegah Rasuah (BPR). The trial had started on 2003 before a particular Magistrate, Puan
Norina binti Zainol Abidin at Langkawi. Later on 2006, the Magistrate was transferred to Kangar
Magistrate court. The accused counsel had requested the Magistrate to continue hearing the case.
Prima facie case was established at the end of prosecutions case.
However, before the defence case begins, she was transferred to BPR School of Law, at
Putrajaya as DPP. She had disclosed her position before hearing the defence but there is no
objection from the prosecution nor the defence. After the defence case was closed, Puan Norina
was again transferred to be a DPP at Unit Pendakwaan, Pejabat Penasihat Undang-Undang
Negeri, Pulau Pinang on 2007. The defence then, made written and oral application for her to
recuse herself from further hearing the case and deliver her decision. The defence also applied
for the case to be heard de novo before another Magistrate. The Magistrate, Puan Norina
dismissed the application.
The defence applied to the High Court to revise the Magistrates decision relying on Section
261 of the Criminal Procedure Code (CPC) arguing that the Magistrate ceases to exercise
jurisdiction in the case when she assumed the function of DPP after being transferred to BPR and
it raised a reasonable suspicion of bias against the accused. The counsel argued that when she
became the BPR DPP, there is a likelihood of bias and the accused may be prejudiced in the eyes
of the public. This is against the principle that justice must not only be done but must manifestly
undoubtedly be seen to be done.
On the other hand, the prosecution contended that Puan Norina did not appear to have any
bias or appearance of bias against the accused on three reasons. First, the scope and function for

DPP at School of Law may be distinguished with the other BPR DPP at non-School of Law.
Second, BPR DPP at School of Law do not have access to the BPR investigation papers. Third,
theres no reason for Puan Norina to be influenced by the Attorney General as she is accountable
to the Director of BPR.
The court in deciding on the issue of bias has applied the real danger of bias test instead of
the real likelihood of bias test. The judge in this case Zamani Bin A. Rahim JC discussed on the
two test of bias that is reasonable suspicion of bias and real danger of bias. The court refers to the
case of R v Gough [1993] AC 646 where Lord Goff discussed in extensive on these test. His
Lordship concluded real danger of bias test should be applicable in all cases of apparent bias
involving justices, members of other inferior tribunal, jurors or arbitrators. His lordship stated the
Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the
court should look at the matter through the eyes of a reasonable man, because the court in cases
such as these personifies the reasonable man; and in any event the court has first to ascertain
the relevant circumstances from the available evidence, knowledge of which would not
necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of
doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that
the court is thinking in terms of possibility rather than probability of bias. Accordingly, having
ascertained the relevant circumstances, the court should ask itself whether, having regard to
those circumstances, there was a real danger of bias on the part of the relevant member of the
tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with
favour, or disfavour, the case of a party to the issue under consideration by him;"
The Malaysian Federal Court cases have also followed the principle laid down in Goghs
case. This can be seen in the case Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasamasama Serbaguna Sungai Gelugor [1999] 3 CLJ 65, Mohamed Ezam Mohd. Nor & 4 Ors v Ketua
Polis Negara [2001] 4 CLJ 701.
The court on considering circumstances of the case, found that there is no possibility of bias
on five reasons.

there was no evidence to prove that Puan Norina has access to the investigation papers;

ii. Puan Norina had openly declared her position BPR DPP and clearly reminded that her

position shall not be a subject of complaint or appeal;

iii. the defence and prosecution had unequivocally informed Puan Norina of no objection for
her to continue hearing the case;
iv. there was no complaint by the accused as to the conduct of hearing during the defence case;

both defence and prosecution recognised that the case was long outstanding and needed to
be clompleted promptly.
Based on these reasons, the court in applying the real danger of bias found that there was no

possibility of bias by the Magistrate against the accused.

Hence, the application was dismissed and the Magistrates decision was affirmed.
Application for revision by the defence was made under Section 261 of the CPC which
provides for the change of Magistrate whenever the Magistrate after having heard or recorded
evidence in a trial ceases to exercise jurisdiction in it. The defence make an application under
Section 261 in order for the Magistrate to recuse herself from further hearing and give judgment.
The defence also applied, so that the case to be heard de novo before another Magistrate. The
defence also argued that there was a reasonable suspicion of bias against the accused when the
Magistrate assumed the function of BPR DPP.
The court have applied the real danger of bias test in deciding whether the Magistrate was
biased against the accused. The court referred to many cases on the test of bias as mentioned
above to determine the test applicable. The court come to a decision that real danger of bias test
is applicable in Malaysia including to cases of apparent bias. The court have made a thorough
discussion on the test to be applied on determining a judge impartiality.
However, the court did not make a thorough discussion on the requirements of an
application under Section 261 CPC and its fulfilment which is the basis of this application. I am
of the opinion that it would be better if the court refer to the case of PP v Goh Choi Guan [1978]
2 MLJ 189 which discuss Section 261 CPC specifically which is the main application for
revision in this case. Syed Agil Barakbah SCJ held that the phrase ceases to exercise jurisdiction
therein in Section 261 CPC refers to situation where the Magistrate in criminal matter ceases to
exercise jurisdiction by his untimely death, retirement or resignation. It does not include

situations where a Magistrate is transferred to the post of DPP since he is then gazetted and not
degazetted. Refering to this case, it will be clear that the Magistrates transfer as the BPR DPP
does not falls within the phrase of ceases to exercise jurisdiction therein in Section 261 CPC.
Hence, the application should not be allowed since the defence applied for revision under this
very provision and would failed to fulfill its requirement by the phrase ceases to exercise
jurisdiction therein. The court failed to discuss the requirements of Section 261 CPC and its
fulfilment by the applicant in the judgment even though it is the basis of the application. The
court, on the other hand, discussed thoroughly on the test applicable to determine whether the
Magistrate is biased against the accused.
In addition, the court also did not refer to Section 439 CPC which in my opinion would be
applicable in this case since the defence argued that the Magistrate was biased when she was
transferred as BPR DPP. Section 439 CPC states no Magistrate shall, except with the permission
of the High Court to which an appeal lies from his Court, try any case to or in which he is a party
or personally interested. Explanation of Section 439 CPC further states that a Magistrate shall
not be deemed to be a party or personally interested within the meaning of this section by reason
only that he is concerned in it in a public capacity. Applying Explanation of Section 439 CPC,
the Magistrate will not deemed to be interested in the case and to be recused from further hearing
the case merely on the reason the she has been transferred as BPR DPP in the middle of the trial.
The facts in the case shows that the Magistrate despite being the BPR DPP did not have access to
the investigation papers of the case to prejudice the accused. Hence, the Magistrate shall not be
deemed as interested in the case under Section 439 CPC without any other evidence that the
accused was actually prejudiced by the Magistrates position as BPR DPP.