KUALA LUMPUR (Jan 14): The High Court has dismissed former attorney general Tan Sri Tommy Thomas' attempt to remove judge Roz Mawar Rozain from presiding over the malicious prosecution suit filed against him (Thomas), the Malaysian Anti-Corruption Commission (MACC), and the government by former Federal Land Development Authority chairman Tan Sri Shahrir Samad.
In her decision, Roz Mawar said any application to recuse a judge is a serious legal matter requiring careful and thorough scrutiny. Such applications, she said, must meet specific legal thresholds to ensure they are based on legitimate grounds.
The judge noted that while Thomas cited the Judges Code of Ethics 2009, referencing her earlier dismissal on July 3 of the previous year of the former AG’s application to strike out the suit and her subsequent order for a full trial, the court found that Thomas did not provide any evidence to demonstrate that she (the judge) had any pecuniary or proprietary interests in the subject matter of these proceedings.
“Even if a preconceived opinion (on the dismissal of striking out) has been formed — which in this case is absent — it would not constitute real bias sufficient to warrant my recusal. The allegations questioning my integrity as a judicial arbiter lack merit and are wholly unnecessary in the context of this matter,” Roz Mawar said.
“It is evident that this recusal application lacks any factual basis. Furthermore, Thomas' affirmation in his affidavit in support of this recusal application reinforces Shahrir’s assertion that the application represents an effort to circumvent...preclude revisiting points determined in the interlocutory striking out applications which are dismissed.
“This recusal application appears to challenge my earlier decision in his striking out application indirectly. In light of its timing and content, this recusal application could be perceived as an attempt to revisit points already determined,” she said.
Following the dismissal of the recusal application, Roz Mawar ordered Thomas to pay RM20,000 in costs to Shahrir.
Shahrir initiated the lawsuit against Thomas in December 2023 for malicious prosecution over a money laundering charge brought against Shahrir after he allegedly failed to include a RM1 million cheque he received in 2013 from Datuk Seri Najib Razak in his income tax declaration.
Charged in early 2020, the former minister was granted a discharge not amounting to an acquittal by the High Court in January 2023 after the prosecution dropped the case against him.
Shahrir has said the sum he received from Najib was actually reimbursement for political expenditure, and not income, and hence need not be declared.
On July 3, Roz Mawar dismissed Thomas' bid to strike out Shahrir’s malicious prosecution suit and determined that the former Felda chairman’s suit was not an abuse of the court process and ought to be ventilated in a full trial. In doing so, she cited the case of former Asian International Arbitration Centre director Datuk N Sundra Rajoo, stating that no one is above the law, including the AG.
On Tuesday, the judge noted that an amendment to Section 64 of the Courts of Judicature Act 1964 prevents litigants from appealing any dismissal of a striking out application, and the court viewed Thomas' recusal application as an attempt to derail the trial.
She also said her dismissal of Thomas’ striking out application has not determined the issues to be tried or raised in the lawsuit.
“These issues remain open for assessment and determination, which I will undertake at full trial. Thus, Thomas’ contention that I had predetermined his case against him is without merit. My written decision contains prima facie observations, which I was duty bound to make in order to assess the merits of his application to strike out Shahrir’s suit.
“There is nothing in my written decision to suggest that I had conclusively determined the issues against Thomas. I expressly stated on two occasions that the facts were to be tested in cross-examination at full trial. It follows therefore, that there was no prejudgment or predetermination of either Shahrir’s case or Thomas’ defence at this juncture,” the judge said.
Roz Mawar added that because Thomas had written in his book, My Story: Justice in the Wilderness, conveying his position and desires, some of which were political in nature, the court could not ignore the facts contained in his book.
“Thus, I could not dismiss Shahrir’s preliminary case. At the end of the day, it would be up to Shahrir to satisfy me after full trial, on a balance of probabilities, that he has a successful claim,” she said.
Subsequently, Thomas’ counsels, Alan Adrian Gomez, Mervyn Lai, and Haikaldin Mahyiddinn, applied for a stay of Roz Mawar’s decision pending an appeal to the Court of Appeal. The judge told them to file a formal application and then fixed March 4 to hear Thomas’ stay application.
Shahrir was represented by Datuk Firoz Hussein Ahmad Jamaluddin and Datuk Syed Faisal Al-Edros, while the MACC and government were represented by senior federal counsels Nur Exdian Rosleh and Zetty Zurina Kamaruddin.