KUALA LUMPUR (Aug 18): The High Court has dismissed former prime minister Datuk Seri Najib Razak's bid to recuse trial judge Datuk Collin Lawrence Sequerah from presiding over the 1Malaysia Development Bhd-Tanore (1MDB-Tanore) matter.
In delivering his decision on Najib's application, Sequerah said he had not had any communications with former 1MDB general counsel Jasmine Loo — either personally or professionally — since she left Messrs Zain & Co in 2008.
He added that the legal test was that there was a real danger of bias, which Najib had failed to prove.
"The burden is on [Najib] to prove that there is a real danger of bias....the material facts are based solely on the ground that I was a partner at the time she was a partner [of the firm]. Since [Loo's] departure in 2008, there was no form of relationship. I don't think the applicant has discharged the burden of proof that there is a real danger of bias [should I continue to preside over the trial]," the judge said on Friday (Aug 18).
He added that per former 1MDB chief executive officer Datuk Shahrol Azral Ibrahim Halmi's testimony, Loo's involvement in 1MDB commenced sometime in 2011, and this had nothing to do with the period of the past employment history that Sequerah and Loo share.
The judge said it was also not shown that he had a personal relationship or pecuniary (monetary) interest with Loo.
Sequerah also stressed that one of the most important components of the judges' oath is to preserve and defend the Constitution, including the right to a fair trial.
"It is therefore the duty of a judge to ensure the right to a fair trial is preserved in the discharge of his or her duties irrespective of the personalities involved," he said.
Citing case laws, Sequerah says past employment not sufficient to show real danger of bias
Sequerah also noted that the defence had submitted that he should have made the disclosure much earlier, when Loo's involvement in the case became apparent.
To this, he said: "In respect of this, no amount of gazing into the crystal ball would have armed me with the knowledge that Jasmine Loo will be apprehended, it being disclosed during the trial that she was a fugitive from justice, much less be called as a witness in this case.
"It was only when Loo was arrested, and upon the insistence of the defence, that the prosecution disclose whether they will be calling her as a witness, to which incidentally, the prosecution has not [to date] provided an affirmative answer that I decided to make the disclosure. This to me was the earliest and most appropriate time to make such a disclosure."
Citing case laws, he added that the fact that Loo and him were partners is not a subject hidden from the public eye and need not be disclosed. He also said that past associations including employment history are not sufficient to show a real danger of bias.
Defence to file appeal, and apply for a stay at Court of Appeal
Najib's counsel Tan Sri Muhammad Shafee Abdullah then informed the court that he had been instructed to appeal and applied for a stay of proceedings.
However, deputy public prosecutor Ahmad Akram Gharib told the court that the prosecution had been instructed to argue that a stay should not be granted, as there were no special circumstances to grant a stay.
Sequerah then rejected the stay application on the grounds that there were no special circumstances to grant a stay.
Speaking to the press later, Shafee confirmed that the defence will be filing an application to stay the proceedings at the appellate court.
The trial then resumed with former Bank Negara Malaysia governor Tan Sri Dr Zeti Akhtar Aziz on the witness stand.
Application made following Sequerah's disclosure last month
Najib's application filed earlier this week came after Sequerah's disclosure last month that he and Loo were once partners in law firm Messrs Zain & Co almost a decade ago.
Sequerah said they were partners in the law firm when he was still a practising lawyer 10 to 15 years ago.
The judge started in the firm as a legal assistant in the litigation department in 1996, and worked until 2000. He was then made a partner in 2001, and was in that position until June 2014. He subsequently joined the Judiciary, and was elevated to the Court of Appeal in January this year.
Loo joined the firm as a legal assistant in the corporate department in January 1998. She was made a partner in January 2004 in the said department, and subsequently left the firm in December 2008.
Sequerah's comments in the court came after Loo's arrest by the authorities last month. Loo, a central figure in the 1MDB scandal, fled Malaysia in 2018, and was a wanted person by the authorities.
Her lawyers said that she had surrendered herself, and intends to help Malaysia recover 1MDB assets.
In his application, Najib was seeking the trial judge's recusal, and to disqualify him from hearing the matter further, or from making any further rulings regarding the case.
In the event that the application is allowed, the defence is seeking a court order for the trial to be nullified, and for the ex-prime minister to be granted a discharge and acquittal, or for the matter to be tried afresh with a new High Court judge, or that the trial continues before a new judge.
During lengthy submissions on Thursday, Shafee argued that there is a real danger of bias should Sequerah continue to hear the matter.
He added that even if Loo is not called to testify in the trial, she is still an important player who had a role in the matrix of the case.
The court, he argued, had to make a value judgement, particularly in relation to the documents that were prepared by Loo, which have been cited by other witnesses in this trial. Shafee questioned if such a determination could be made.
The prosecution countered that the main issue in the trial pertaining to Loo is her involvement in the financial scandal, and not her previous employment.
They also noted that the firm did not do any work for 1MDB, nor was there a personal friendship between the judge and Loo. Furthermore, they argued that there was also no prior link between the judge and 1MDB.
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