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MALAYSIA – MIRROR, MIRROR ON THE WALL, WHO’S THE FAIREST OF ‘EM ALL?

6th April, 2020

Unfair judicial treatment has been discussed in the hearing of Ho Shen Lee (M) Sdn Bhd (the Plaintiff) v TNL Plastic Manufacturer Sdn Bhd (the Defendant) at the High Court. During the hearing, the Plaintiff was repeatedly interrupted and interjected by the Trial Judge during the examinations of Plaintiff’s witnesses, hence making it difficult for the Plaintiff to present its case. The outcome of the hearing was not a happy one as the Plaintiff’s claim was dismissed, and allowing the Defendant’s counterclaim instead base on mixed facts and law. Accordingly, the Plaintiff had filed an appeal, requesting a new trial with a new judge.

In view of requesting for a retrial in front of a new judge at the Court of Appeal, the learned councils anticipated that the there will be two different sets of circumstances, in which:

  • it can be shown that there is indeed an improper admission or rejection of evidence in the first trial at the High Court of Malaya, where the Court of Appeal may only order a new trial if it is satisfied that “some substantial wrong or miscarriage of justice has been thereby occasioned”, or
  • the Court of Appeal shall have power to order a new trial by the High Court on grounds other than that of improper admission or rejection of evidence. In this appeal, the Plaintiff’s argument in support for a new trial is founded on unfair judicial treatment and not for improper admission or rejection of evidence.

It is further discussed that Malaysia follows the adversarial trials system where the trial Judge is the only participant impartially seeking the true facts and the applicable law. To achieve his purpose and objective in a just manner and with just results, the trial judge is under a duty to see that Justice is done; by rendering to every person his due under the same law, equally, fairly and impartially applied and administered, without bias, prejudice, passion and irrespective of race, creed, economic or social status. In view of this, the duty of a trial Judge extends to the preservation of the rights of litigants and a proper disposition of the matters in dispute. It is also the trial judge’s duty to inter alia: protect witnesses from irrelevant, improper or insulting questions; allow them to be detained only so long as the interests of justice require; allow them to be examined only as to matters legal and pertaining to the issue; advise them on their right not to give an answer which will tend to incriminate them or one which will directly tend to degrade their character, unless it be the fact in issue or a fact from which the fact in issue would be presumed.

Accordingly, when the parties have finally arrived at the trial, they are entitled to, and it is the trial judge’s duty to give to them and to their cause, the calm and deliberate hearing, consideration and study that the ideal of justice demands. A trial judge must treat lawyers, litigants and witnesses with respect and must refrain from comments that suggests that he has made up his mind in advance.

Based on the totality evidence presented on the record by the Appellant, the Court of Appeal had concluded that the first trial judge not only seriously transgressed the fundamental principle that she should have remained neutral, but she also acted in a manner which was, at times, manifestly unfair and hostile to the plaintiff. Under these circumstances, the Court of Appeal was of the view that the criticism of the trial judge is of such magnitude as to constitute by itself is already a sufficient ground for reversal of the judgment.

Thus, the Court of Appeal had ordered a new trial before another Judge and the first order of the High Court was set aside and no costs are charged for the appealed by the Appellant.