In The High
Court Of Brunei Darussalam
Civil
Suit No. 31 of 2000
(1)
State of
Brunei Darussalam
First Plaintiffs
(2)
Brunei Investment
Agency
Second Plaintiffs
V
HRH Prince Jefri Bolkiah and others
Defendants
Before:
Roberts, C.J.
Date
of Hearing : April
21 and 22,
2000
Date
of Judgment : April
24, 2000
Judgment
Roberts, C.J.
This
Summons-in-Chambers (entered as No.96 of 2000) was an application
by the first defendant for the following Order –
“The
trial of this action and all further interlocutory applications
and hearings in the action shall not be listed for hearing
before the Chief Justice Dato Sir Denys Roberts but shall
be listed for hearing before an independent judge from
outside Brunei”.
Background
Civil
Suit No.31 of 2000 was commenced on 21 February, 2000.
In that suit, it can be said, in summary, that the first defendant,
in breach of his fiduciary duties, caused sums in excess
of US$14.8 billion, alleged to belong to the first plaintiff,
to be paid out of the control of the second plaintiff and
into accounts in his name or belonging to him and that he
caused these sums to be paid out of these accounts.
The plaintiffs
have claimed that they are entitled to recover these sums
from the first defendant, to and account of his dealings
with further sums and to the payment of any sums found to
have been misapplied by him.
In a
hearing on 6 March, 2000, during which the first defendant
had sought variations of the Mareva injunction granted by
the Chief Justice on 21 February, 2000, the Chief Justice
(“C.J.”) raised the question of whether he should continue
to hear the case and asked that if there was to be any challenge
to his hearing of the applications in the matter, or of
the trial itself, this should be made as soon as possible.
This
should not, of course, be regarded as an admission on his
part that any applciation for his recusal would necessarily
succeed. It was, however, raised in those proceedings, so
that any objection to him trying the various issues could
be decided at an early stage.
Supreme Court Act
(“CAP.5”)
Reference was made by the first defendant to the effect of
this Act, under which the Chief Justice is appointed.
Section 8 of Cap.5 is as follows –
“(1)
Subject to the provisions of this section, a person holding
the office of a Judge of the Supreme Court shall vacate
that office on attaining the age of 65 years or such alter
time as His Majesty may approve.
(2)A
Judge of the Supreme Court may be removed from office
only for inability to perform the functions of his office
or for misbehaviour and shall not be so removed except
in accordance with this section.
(3)A
Judge of the Supreme Court shall be removed from office
by His Majesty if the question of the removal of that
Judge has been referred by Her Britannic Majesty at the
request of His Majesty to the Judicial Committee has advised
that the Judge ought to be removed from office for inability
or misbehaviour.
(4)Where His Majesty has made such request as set out in
subsection (3) His Majesty may suspend a Judge for performing
the functions of his office pending advice of Her Britannic
Majesty’s Privy Council.”
The term
“Judge of the Supreme Court” includes the Chief Justice.
The tenure
of office of the C.J. has been extended to the end of June,
2001, by a letter signed by the Special Adviser to His Majesty
The Sultan (“H.M.”)
This
letter is not signed personally by H.M.. It is clear form
its terms, however, that H.M. has personally exercised the
power conferred on him by section 8 of the Act to extend
the C.J.’s term to “at least another year after the expiration
of the present term in June, 2000.”
I do
not read the section as empowering H.M. to direct the C.J.,
or any other Judge of the Supreme Court, to vacate his office
before the “later time” specified in that section has expired.
As soon
as H.M. has exercised his power under section 8(1) of the
Act, the person concerned is a Judge of the Supreme Court
for that period. During it, he can only be removed in accordance
with section 8(3), which involves a reference tot he Privy
Council.
Consequently, I have no doubt that the C.J. has been properly
appointed until the end of June, 2000, and can only be removed
before that date under section 8(3).
It should
also be noted, in case this matter were of any importance
(through counsel for the first defendant very fairly did
not press the point) that the remuneration of the Chief
Justice is assessed with reference to the salary of the
Chief Justice of Hong Kong.
This
relationship was fixed in 1988 and has never been altered.
The remuneration does, of course, vary with that paid to
the Chief Justice of Hong Kong, but does not depend upon
any measures taken in Brunei.
This
salary is also charged on the Consolidated Fund. This means
that it is not necessary for the sum concerned to be included
in any departmental estimates.
I should
add, since the case of Terrell v Secretary of State for
the Colonies (1953) 2 QB 482 was mentioned, that I do not
regard Terrell as relevant, since it decided that, where
a judge was appointed at pleasure, his appointment could
be terminated at any time by the Crown. In Brunei the security
of tenure of a judge is specified in clear terms in the
Supreme Court Act.
Application of Law
The Application
of Laws Act (“Cap.2”) provides as follows in section (2)
–
“2.
Subject to the provisions of this Act and save in so far
as other provision has been made by any written law in
force in Brunei, the common law of England and the doctrines
of equity, together with statues of general application,
as administered or in force in England at the date of
the commencement of this Act, shall be in force in Brunei:
Provided that the said common law, doctrines of equity and
statutes of general application shall be in force in Brunei
so far only as the circumstances of Brunei and of its
inhabitants permit and subject to such qualifications
as local circumstances and customs render necessary.”
The date
of commencement of the Act was 25th April, 1951,
and no English statutes enacted after that date, unless
specifically adopted by a written law enacted in Brunei,
shall be in force here.
It is
accepted in Brunei that the common law (and the doctrines
of equity) is in force here, even if contained in a case
decided after the date of commencement, the polite fiction
being accepted that the common law has always existed and
that cases after the date of commencement are only explanations
of what the common law has always been.
On the
subject of recusal, I accept that there are no special circumstances
in Brunei such as would make it necessary to modify the
common law applicable thereto.
I should
make it clear that this section applies only to the reception
of common law in force in England.
It is
therefore necessary to consider the interpretation of the
common law in English cases only. This means that Commonwealth
cases are not to be followed, save perhaps to the extent
that they may set out what they perceive to be the common
law of England.
If there
is a conflict between English and Commonwealth cases, as
to the correct application or meaning or scope of the common
law, the English cases must be followed.
It follows
from what is said above, that English statutes are not part
of the law of Brunei, unless enacted prior to 25th
April, 1951, or later embodied in a Brunei enactment.
Similarly, any European Convention in Human Rights is not a
part of the law of Brunei. Only if it is accepted by the
Courts in England that this is the same as the common law,
would it be applicable in Brunei. But if it is not so declared,
it will not be in force here and should not be taken into
account.
For the
above reasons, I am obliged to give no weight to any of
the following, which were put forward, on behalf of the
first defendant, as showing the law which should be applied
in Brunei –
European Convention on Human Rights (Europe);
Starrs v Ruxton (Scotland);
Valente v R. (Canada);
AG v Lipp (Canada);
Ref re Territorial Court Act (Canada);
Findlay v United Kingdom (Europe);
Bryan v United Kingdom (Europe);
Pillar v United Kingdom (Europe);
Webb v The Queen (Australia);
Jeyaretnam Joshua Benjamin v Lee Kuan Yew (Singapore);
The Judges v AG for Saskatcheevan (Canada).
I shall
therefore apply, in deciding this application, only the
principles set out in Lockbail v Bayfield (2000) 1 All ER
65 (“Lockbail”) which I taken as a recent statement of the
common law principles as to recusal. This case refers to
R v Gough (1993) 2 All ER 724 (H.L.) (“Gough”)
General Considerations
(a)
There is, no doubt, a strong temptation to recuse
myself from a trial which may be long and complex and
involve a number of prominent figures in Brunei Darussalam.
It
is all too easy say that, because a party has objected
to me, I ought, ipso facto, to withdraw. But objection
is not enough. The tests enumerated in Lockbail must be
satisfied. In this respect, I quote from paragraph 22
of Lockbail.
“Although it is important that justice must be seen to the
done, it is equally important that judicial officers discharge
their duty to sit and do not, by acceding too readily
to suggestions of appearance of bias, encourage parties
to believe that, by seeking the disqualification of a
judge, they will have their case tried by someone thought
to be more likely to decide the case in their favour.”
(b)
”Grasp the nettle”. The plaintiffs and the first defendant
had a different nettle in mind. However, both were agreed
that I ought not to deal separately with interlocutory
proceedings and the trial itself. If I were to recuse
myself, it should be for both. If I were to reject this
application, it should be for interlocutory proceedings
and the trial.
(c)
I have assumed that both H.M. and the two former Law officers
would be required to give evidence at the trial and that
they might be involved, directly or indirectly, at the
interlocutory stage.
(d)
In considering the matter, I shall take into account the
following passage from paragraph 19 of Lockbail, which
emphasizes the “insidious nature of bias”-
“All
will turn on the facts of the particular case. There can
however be no question of cross-examining or seeking disclosure
from the judge. Nor will the reviewing Court pay attention
to any statement by the judge concerning the impact of
any knowledge on his mind or his decision; the insidious
nature of bias makes such statement of little value and
it is for the reviewing court and not the judge whose
impartiality is challenged to assess the risk that some
illegitimate extraneous consideration may have influenced
the decision.”
(e) It would be wrong to yield
to any tenuous objection. I should make it clear that
I do not seek to criticize the defendant for raising the
objection to my continuance, which I do not regard as
“tenous” but one which must be considered upon its merits
and was reasonable to make in the circumstances. Nevertheless,
the question of the danger of bias must be considered
objectively and not by reference to the subjective concerns
of the parties.
(f) It would be inconvenient
to arrange for a judge from outside Brunei to deal with applications in this matter and to
preside over the trial.
However, inconvenient and expensive
it may be, it is important that a fair and impartial hearing
should be given.
I have not, therefore, allowed
the inconvenience caused by my recusal to have any effect
on my conclusion.
THE LOCKBAIL CASE
In the Lockbail case, there were
five applications, heard together as they raised common
questions concerning the disqualification of judges on grounds
of bias.
I accept the fundamental rule
that everyone is entitled to a fair and impartial tribunal,
Although this right appears in the European Convention on
Human Rights, which does not apply to Brunei, 1 believe
it to be the same under common law in England.
As is said, in paragraph 2 of Lockbail-
"All legal arbiters are bound
to apply the law as they understand it to the facts of
individual cases as they find them. They must do so without
fear or favour, affection or ill will, that is without
partiality or prejudice".
Paragraph 7 of Lockbail is in these terms -
"The basic rule is not in doubt.
Nor is the rationale of the rule; that if a judge has
a personal interest in the outcome of an issue which he
is to resolve, he is improperly acting as a judge in his
own cause; and that such a proceeding would, without more,
undermine public confidence in the administration of justice."
In paragraph 8 of Lockbail
appears the following passage-
"In the context of automatic
disqualification the question is not whether the judge
has some link with a party involved in a case before the
judge but whether the outcome of that case could, realistically,
affect the judge's interest."
"In my opinion, if, in the circumstances of
the case, it appears that there is a real likelihood, in
the sense of a real possibility, of bias on the part of
a justice or other member of an inferior tribunal, justice
requires that the decision should not be allowed to stand.
I am by no means persuaded that, in its original form,
the real likelihood test required that any more rigorous
criterion should be applied. Furthermore, the test so stated
gives sufficient effect, in cases of apparent bias, to the
principle that justice must manifestly be seen to be done,
and it is unnecessary, in my opinion, to have recourse to
a test, based on mere suspicion, or even reasonable suspicion,
for that purpose".
At p.670 of Gough, Lord Goff sets out the applicable law as
follows-
"In conclusion, I wish to express my understanding of the
law as follows. I think it possible, and desirable, that
the same test should be applicable in all cases of apparent
bias, whether concerned with justices or members of other
inferior tribunals, or with jurors, or with arbitrators.
Likewise, I consider that, in cases concerned with jurors,
the same test should be applied by a judge to whose attention
the possibility of bias on the part of a juror has
been drawn in the course of a trial, and by the Court of
Appeal when it considers such a question on appeal. Furthermore,
I think it unnecessary, in formulating the appropriate test,
to require that the court should look at the matter through
the eyes of a reasonable man, because the court in cases
such as these personifies tile reasonable man; and in any
event the court has first to ascertain the relevant circumstances
from the available evidence, knowledge of which would not
necessarily be available to an observer in court at the
relevant time. Finally, for the avoidance of doubt, 1 prefer
to state the test in terms of real danger rather than likelihood,
to ensure that the court is thinking in terms or real danger
rather than probability bias. Accordingly, having ascertained
the relevant circumstances, the court should ask itself
whether, having regard to those circumstance, there was
a real danger of bias on the part of the relevant member
of the tribunal in question, in the sense, that he might
unfairly regard (or have unfairly regarded) with favour,
or disfavour,the case of a party to the issue under consideration
by him....' (See [ 1993] 2 All ER 724 at 737-738."
As I understand the basis of the application,
it is contended that there might be a "real danger of bias"
in that I might unfairly regard with favour the views of
H.M. or the evidence of two former Law officers, one of
whom was also Minister of Law.
There was also a suggestion, which was, in
my view correctly, not pursued, that I might have such a
close relationship with the present A.G. as to constitute
a real danger of' bias in these proceedings.
What I believe should be considered is the
quality of the relationship between a judge and a person
involved in the litigation.
I should here add that it is natural that
I should have met a number of persons who may be called
as witnesses at the trial. At present, I do not know who
they might be. I can only say that my acquaintanceship with
them is likely to be minimal, as indeed is my previous relationship
with the first defendant, whom I have met briefly on the
same occasions as those in which I have met H.M..
I have only met H.M. when judges have been
sworn, save for one occasion, in 1983, when he was attending
the opening of a new Supreme Court Building.
There has never been any interference by tile
executive with the judiciary, which has remained staunchly
independent. Nor has H.M. ever attempted to influence the
courts in anyway. Nor indeed has the A.G., on H.M.'s behalf
or on his own.
Accepting that H.M. may have to give evidence,
I do not consider that it could reasonably be said that
there is a danger of bias on my part. I would have no difficulty
in bringing an impartial mind to the consideration of his
evidence, if it were in conflict with that of the first
defendant, as I assume is possible in the absence of any
defence.
With regard to the former law
officers, it is important to note, in my view, that they
vacated their offices nearly two years ago, since when my
contacts with them have been infrequent.
Before that, I had more frequent contact with
them, particularly in connection
with the Opening of the Legal Year. They never, in my view,
attained such a closeness of relationship as I might incline
to accept their evidence, as presumably is suggested, to
the prejudice of the defendants, as I will assume that their
evidence would be.
I do not, therefore, regard there as being
any real danger of bias by reason of
personal friendship or close acquaintanceship with either
of these persons.
I would have no difficulty in judging their
credibility as I would other witnesses in the case.
CONCLUSION
The independence of the judiciary is vital,
especially in a society in which
other safeguards are said to be absent. I have borne this
important principle in mind in reaching my conclusion.
In some respects, the Lockbail rules should
be looked at with local circumstances in mind. For example,
I frequently decide appeals from magistrates whom I know
well and who operate in the same building. I cannot recuse
myself from hearing an appeal because I am closely acquainted
with the judge.
However, I have thought it correct to apply
the Lockbail guidelines to this
application.
Putting myself, as best I can,
in the place of the reasonable man, as the Lockbail case
requires me to do, I conclude that there is no danger of
bias on my part and dismiss summons in- chambers No.96
of 2000.
Having heard both parties as
to costs, I think that these should follow the event and
that costs should be awarded to the plaintiffs (the respondents
in this application).
