Court of Appeal judge Gopal Sri Ram's remarks against former finance minister Daim Zainuddin, businessman Halim Saad and his ex-partner Anuar Othman showed a "real danger of bias" on the part of the judge, the Federal Court was told today.

Senior counsel Muhammad Shafee Abdullah ( left ), who represents Metramac Corporation Sdn Bhd, told the country's highest court that Gopal's remarks were:

1) totally baseless and irrelevant

2) not supported by any evidence

3) had adverse effect against his client

Urging the court to grant Metramac's application for leave to set aside the Court of Appeal judgment which ordered the company to pay RM65 million to Fawziah Holdings for loss of advertising rights, the lawyer said the appeal would succeed on this argument alone.

"We are contending that the whole judgment by the Court of Appeal is tainted by the remarks contained in the judgment, which is liable to be set aside on this score alone," he said.

Biased judges

Metramac - the concessionaire of the East-West Link Expressway and the Sungai Besi Expressway - is seeking leave to appeal against the appellate court's Jan 12 decision where the company was ordered to pay Fawziah Holdings RM65 million for the breach of contract on advertising rights.

The case attracted public attention when Gopal ( right ) in his judgment had, among others, accused Halim and Anuar of siphoning RM32.5 million from Metramac while under the patronage of Daim, then finance minister.

Daim and Halim have since obtained leave to act as interveners in the appeal to expunge Gopal's remarks.

The case was heard before a five-member panel of judges consisting of Chief Justice Ahmad Fairuz Sheikh Ab Halim and Federal Court judges Pajan Singh Gill, Allaudin Mohd Sherif, Richard Malanjum and Nik Hashim Nik Ab Rahman.

In his submissions, Shafee claimed that Gopal had been so biased that he "accused and convicted" Daim, Halim and Anuar and at the same time regarded Metramac's case with disfavour.

When asked by justice Ahmad Fairuz why the court should feel compelled to grant leave, the lawyer reiterated it involved the question of bias on the part of the judge.

The judge then countered Shafee's argument stating that the issue had already been dealt with by the apex court in the past, and that there are ample legal authorities as guidance.

Shafee answered: "The past authorities have dealt with the judges' biases against parties to the case, recusal of judges... but this case is different because it pertains to remarks made against third parties that had no nexus to the case."

Public advantages

He also argued that the appeal was of public interest as Gopal's "adverse remarks" against the third parties - Daim, Halim and Anuar - had resulted in public controversies and debates.

"It has generated serious public interest on government contracts, privatisation and concessions, which are almost daily matters. This apex court must make a decision so that there is no doubt and suspicion for future guide."

The lawyer also argued that Gopal's judgment which stated that "Fawziah and the other shareholders were subjected to a crude case of economic duress associated with the new shareholders (Halim and Annuar) acting in concert with Daim" were severely prejudiced in its analysis of the facts of the case and findings.

He said Fawziah could not have been suffering from economic duress when she had succeeded in selling a troubled company to Halim and Anuar for RM97.5 million.

"Fawziah Holdings sold the company (Syarikat Teratai KG Sdn Bhd). It was in financial trouble when it was sold to Metro Juara (then owned by Halim and Anuar) for such a huge amount. It is almost like a con job," said Shafee.

He said it was Fawziah Holdings that had insisted that the buying over of STKG (which later changed its name to Metramac after Metro Juara took it over) was made within a short time frame.

"In fact, they wanted cash payment. They asked that there would be no due diligence, no warranties, no representation. These were the terms given by Fawziah Holdings."

Counsel for Fawziah Holding Dr Cyrus Das will reply on April 3.

Augustine Paul replaced

Earlier today, the court addressed an application by Das to review its five-member panel as justice S Augustine Paul ( right ) was part of a panel of judges at the Court of Appeal level that had heard an appeal involving Fawziah Holdings.

The court stood down for 30 minutes and when it was reconvened, Paul was replaced by justice Nik Hashim.

Paul had heard an appeal between Metramac and Fawziah when the matter came to the Court of Appeal which heard some preliminary matters.

However, the panel of judges was changed as Paul was subsequently elevated to the Federal Court.