Court of Appeal orders Judicial Commissioner to recuse himself in Dr Sim vs Kong case

The legal team for Dr Sim. From second left are Lim, Shankar and Yu.

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By Dorcas Ting

KUCHING, June 21: The Court of Appeal unanimously allowed the appeal application by counsels for Dato Sri Dr Sim Kui Hian in relation to the decision of Judicial Commissioner (JC) Alexander Siew How Wai in dismissing Dr Sim’s application to recuse Siew in relation to the defamation suit filed by Dr Sim against Michael Kong.

The Court of Appeal three-men bench led by Datuk Yaacob MD Sam, Datuk Supang Lian and Dato’ Gunalan Muniandy after hearing the submission of both parties, unanimously
ruled that there was a danger of apparent bias by Siew and allowed Dr Sim’s appeal with cost of RM10,000 and ordered Siew to recuse himself from the case.

In the Court of Appeal hearing today, Dr Sim’s counsel Shankar Ram Asnani argued that justice must be seen to be done and following the apparent bias test by an objective standard, the learned JC ought to be recused on the grounds that he had in an earlier ruling made on January 21, 2021 cited Shankar for contempt, for the brief reasons that the JC found Shankar’s explanation for the one month’s delay in the filing of the plaintiff’s bundle of documents and even longer delay in the filing of the bundle of pleadings, to be nonsensical and not believable.

Siew had further held that a litigant or counsel holding back his bundle of documents for one month in defiance of the Court’s directions while he has the opportunity to peruse the bundle of documents of his adversary during such period, is guilty of obstruction of justice and compromising the integrity of the trial of the action, among other things.

Siew subsequently referred Shankar to the Advocates’ Disciplinary Tribunal for his conduct subsequent to October 27, 2020 and the earlier Court of Appeal decision on March 18, 2021 which set aside such orders made by the learned JC holding that there was no such evidence.

Counsel for the respondent, Sim Kiat Leng argued that there were no merits to Dr Sim’s appeal and he relied on the grounds of decision of the learned JC in the High Court in dismissing Dr Sim’s suit.

Dr Sim who is the Batu Kawah assemblyman and president of Sarawak United Peoples’ Party (SUPP) is taking legal action against Kong who is the special assistant to the Sarawak Democratic Party (DAP) chairman Chong Chieng Jen over alleged defamatory statements on the allocation of funds for food assistance during the Covid-19 crisis in 2020.

It was reported that Kong had accused Dr Sim of “wrongfully taking control” of funding for food assistance allocated for the State constituencies of Padungan, Batu Lintang, Pending and Kota Sentosa totalling RM800,000.

Dr Sim accused DAP leaders of going overboard with their attacks against him “without basis and without verifying the facts beforehand”.

Dr Sim is represented by counsels Datuk Bong Ah Loi, Shankar, Russell Lim and Yu Ying Ying while Kong is represented by counsels Chong Chieng Jen and Sim Kiat Leng. —: DayakDaily