That’s Unfair! – A Cautionary Tale on Judicial Comments

by Alliff Benjamin Suhaimi & Angelene Cheah ~ 4 June 2020

That’s Unfair! – A Cautionary Tale on Judicial Comments

Contributed by:

Alliff Benjamin Suhaimi (Partner)

Tel: 603-6201 5678 / Fax: 603-6203 5678



Angelene Cheah (Pupil)

Justice. The term that holds the very fabric of a democratic society. A concept that allows society to feel safe and secure. Ask anyone on the street, phrases like ‘We demand justice’ or “Justice has been served’ are often used. But what if justice was robbed and you were given an unfair trial?

The Court of Appeal recently in the case of Hong Yik Plastics (M) Sdn Bhd v Ho Shen Lee (M) Sdn Bhd & Anor [2020] 4 CLJ 479 made certain observations and findings regarding unfair judicial treatment.

In that case, the Plaintiff filed an action in the High Court claiming that the Defendant has infringed the Plaintiff’s patent. The Defendant counterclaimed for a revocation of the patent and a declaration of non-infringement. The trial judge dismissed the Plaintiff’s claim and allowed the Defendant’s counterclaim. The Plaintiff then lodged an appeal to the Court of Appeal against the decision.

The Court of Appeal allowed the appeal and held that the Plaintiff was subjected to unfair judicial treatment by the High Court judge. This was because the trial judge made unwarranted comments towards the Plaintiff’s witnesses and had pre-judged the probable failure of the Plaintiff’s case.

During the Hearing of the appeal, the Defendant’s counsel agreed that the trial judge’s conduct was condescending but added that both set of witnesses were given the same treatment. However, the Defendant maintains that the trial judge’s remarks did not affect her decision.

The trial judge’s role in remaining neutral has been compromised based on her conduct and demeanour throughout the trial. As a result, the Court of Appeal ordered for the case to be tried before another High Court judge.

In arriving to that decision, the Court of Appeal considered the 3 factors below.

The Role of a Judge in our Legal System

The Court of Appeal discussed the role of a judge in an adversarial legal system. In essence, an adversarial system is where both advocates client will compete to convince the Judge which party’s version of the facts is the most probable.

Ultimately, the Judge will accept the version which is more probable based on the evidence presented. The Court of Appeal illustrates this in the following manner, the judge presides over the trial as an impartial referee and holds the balance between the contending parties without himself taking part in their disputations. In other words, the adversarial system relies on the fact that the judge is a neutral decision-making body in resolving the dispute.

The Right to a Fair Trial

Next, the Court of Appeal judges looked at whether the Plaintiff was afforded a right to a fair trial. To put it simply, the right to a fair trial can be defined as a trial conducted fairly and justly by an impartial judge in accordance with law.

This fundamental right is enshrined in Article 8 of the Federal Constitution which provides for equality before the law. The Court of Appeal held that there are two minimum requirements for a fair trial in common law which is the principle of natural justice.

The first principle is ‘nemo judex in causa sua’; or judicial impartiality. The second, ‘audi alteram partem’ or the right to be heard. For that reason, the trial judge is under a duty to see that justice is done by ensuring the law is applied to each individual fairly without bias and irrespective of their background, race or social status.

The Court of Appeal acknowledged that the duty of judges includes preservation of litigant’s rights and this duty extends to protecting witness from improper or insulting questions by the opposing counsel. The Court of Appeal held:-

A trial judge must treat lawyers, litigants and witnesses with respect and must refrain from comments that suggest that he has made up his mind in advance.”

However, this was not the case in Hong Yik Plastic as the trial judge interrupted the Plaintiff’s witnesses on numerous occasions and made comments suggesting the trial judge’s mind was made up in advance. This is against the purpose and role of a judge in an adversarial system.

The Principle of Fairness

The Court of Appeal discussed the principle of fairness being at the core of the right to a fair trial. It explained the principle of fairness in the context of unfair judicial treatment by relying on the case of Jan Tomasz Serafin v Grzegorz Malkiewics & 2 Ors [2019] EWCA Civ 852 where the Court of Appeal in England and Wales held as follows:-  

“Not merely is the accused in such a case deprived of “the opportunity of having his evidence considered by the jury in the way that he was entitled”. He is denied too the basic right underlying the adversarial system of trial, whether by jury or jurats: that of having an impartial judge to see fair play in the conduct of the case against him…”

In summary, parties are afforded a fair trial if they are given an opportunity to be heard within a reasonable time and in such manner that does not place either party at a disadvantage to the other.

Upon the perusal of the notes of evidence and written submissions of parties, the Court of Appeal in Hok Yik Plastics was deeply concerned with the repeated interruptions, demands and criticism by the trial judge. This can be seen particularly during the testimony of the Plaintiff’s witnesses. In this regard, the Court of Appeal commented that the trial judge used language that was threatening, overbearing and intimidating. As a result, it leaves an impression that the trial judge was openly hostile towards the Plaintiff. Some examples are as follows:-


 “YA: … Now we come to this Plaintiff PW1, he is not showing me anything you know…the problem with him is that his inability to show for him to explain to us how he went about, doing, making something to be more or otherwise.”

“YA: ...We’re going on and on and if there is no good chance for successful outcome. I think it’ll be very foolish to go on…Whether in light of these answer, he wants to reconsider his case.”

In addition, the trial judge interrupted the Plaintiff’s counsel from responding to the Judge’s questions and made remarks such as ‘You’re not with me? Daydreaming…” when the Plaintiff’s counsel sought to clarify these questions.

The trial judge even asked the Plaintiff’s counsel to speak to the Plaintiff to reconsider the case.  This clearly suggests that the trial judge has pre-judged the Plaintiff’s case.

Based on the totality of the evidence, the Court of Appeal held the trial judge not only seriously transgressed the fundamental principle that Judge should have remained neutral but also acted in a manner which was at times, manifestly unfair and hostile to the Plaintiff. Therefore, the Plaintiff was essentially denied his right to be heard by an impartial tribunal.

“…This is a case of excessive interventions by the trial judge; which fact adds great weight to the substance of the appeal. In these circumstances, the criticism of the trial judge is of such magnitude as to constitute by itself a sufficient ground for reversal of the judgment.”

The decision by the Court of Appeal is important as it highlights the importance of judicial fairness and impartiality. In a democratic society such as Malaysia, it is paramount for the public to have confidence in the Judiciary and an assurance that justice will be done or at the very least, is seen to be done.