The Federal Court has been told about an exchange of text messages between a Court of Appeal judge and an interested party while he was hearing a land purchase matter two years ago.

Lawyers for Halaman Perdana Sdn Bhd, in a submission today during a judicial review hearing, named the judge as Justice Low Hop Bing, who retired last August. He had sat with two other judges.

It was claimed that Justice Low had exchanged a text-message with one Peter Kuah@Zakri Abdullah Kuah and nine messages with Kuah's friend Ooi Suan Kim.

Kuah holds a 40 percent stake in Tasik Bayangan and is the one of the three directors of the company since 1994.

Halaman Perdana claimed that this had resulted in bias in the appellate court's ruling in favour of Tasik Bayangan Sdn Bhd, over the land deal gone sour. This concerned the purchase of 60 ha of land in Serendah in 1994.

NONE Halaman Perdana then lodged a report with the Malaysian Anti-Corruption Commission, the Federal Court heard.

Gobind Singh Deo ( left ) and Malik Imtiaz Sarwar are representing the company.

It was understood Halaman Perdana did a search with telephone companies to show the evidence of the SMS exchange which was also submitted to the MACC.

Following the company's alleged failure to complete payment, Tasik Bayangan had sought a refund of close to RM3 million in 1999.

It won its case in the Shah Alam High Court and at the Court of Appeal, leading to Halaman Perdana's application for judicial review.

Although Halaman Perdana had applied for a full bench to hear the proceedings, a five-member panel was constituted.

Chief Justice Arifin Zakaria presided, alongside Chief Judge of Malaya Zulkefli Ahmad Makinuddin, Chief Judge of Sabah and Sarawak, Richard Malanjum and Federal Court judges Justices Abdull Hamid Embong and Zainun Ali.

NONE Today's hearing also saw a representative from the Bar Council who sat as an observer.

It was reported that the Bar Council had also lodged a report on this case with Arifin and its chairperson Lim Chee Wee ( right ), meeting with MACC's chief commissioner Abu Kassim Mohamed.

Relationship started in 1997

It was also revealed from Chang's affidavit today that Kuah had known Justice Low since 1997.

"This was confirmed by Kuah's son who confirmed the two were close friends since 1997," said Chang in his affidavit in support of the judicial review.

Normally in cases of a judge knowing an interested party, the judge would recuse himself to remove any notion of bias.

The counsel for Halaman Perdana said that owing to this fact, Justice Low ought not to have presided the case at the Court of Appeal.

"It is respectfully submitted that the friendship between Justice Low and Kuah would have caused a reasonable person to have entertained doubts as to whether Low was capable of discharging his duties objectively."

dap islamic state roundtable 100807 malik imtiaz "Justice Low ought to have disclosed his relationship with Kuah at the outset. There is a miscarriage of justice and this (federal) court had allowed the decision of the Court of Appeal which is patently flawed, to stand," said Malik ( left ).

Halaman Perdana had applied for a review at the Court of Appeal over Justice Low's Court of Appeal decision.

They claimed that the panel which heard the case was flawed as Justice Low ought to have been disqualified which would have resulted in only two judges to sit in the case.

However, the review at the Court of Appeal was not heard and the Federal Court later refused to grant leave to Halaman Perdana to appeal Justice Low's written judgment.

Function independently

Citing Section Five of the Judges Code of Ethics 2009, the counsel said a judge should exercise his judicial function independently on the basis of his assessment of the facts, and in accordance with his understanding of the law, free from any extraneous influence, inducement, pressure, threat or interference, direct or indirect, from any quarter or for any reason.

The counsel said the Federal Court should allow the re-hearing at the Court of Appeal as the coram was jurisdictionally deficient as a result of this.

Halaman Perdana wanted the Federal Court decision on Sept 20 last year, which did not allow leave (permission), to be reversed as it was submitted that the apex court, being the highest in the country, is allowed to review its decisions within a confined scope of judicial bias.

Tasik Bayangan's lawyers submitted that the apparent issue of bias was not properly raised when the matter was brought before the Federal Court, and there was no evidence of impropriety by the judge in delivering the decision.

Justice Arifin who chaired the five member bench, deferred the decision to a date to be fixed.