The main issue in this question is whether Magistrate Lenin would accept the

application made by Tee and grant the order.

The first sub issue is whether Tee has the right to make an application for a transfer to
the High Court.

Section 417 (1)(bb) of the Criminal Procedure Code entitles the High Court to transfer
a criminal case tried at a court subordinate to it to any other criminal court of similar or
superior jurisdiction. Subsection (1)(a) - (e) of section 417 lists the grounds in which a case
may be transferred by the High Court. Such grounds include the inability to hold a fair and
impartial trial, a question of law of unusual difficulty, the need of the view of place where the
crime took place, for the convenience of the parties or witness as well as expedient to the
ends of justice.

Section 417 (2) states that the High Court may utilise this power either through a
report from the lower court, the prosecutor, the accused or through its own initiative.

In the current situation, Tee made an application to the High Court of Seremban
regarding his case that is set to be held in Shah Alam. He applied for the case to be
transferred to the sessions court in Perak. Since he is applying to the High Court, he is
making an application under section 417 of the CPC due to his concern that Alfa and
Rasputin going to the same University together would mean that he would get an unfair trial
which would mean that he is applying under section 417(1)(a) for his ground. Section 417(2)
entitles him to be able to make such an application.

Therefore, Tee has the right to make an application for the transfer of his case from
the High Court.

The second sub-issue is whether the ground in which Tee seeks to transfer his case is
valid.

Section 417(1)(a) allows for the High Court to transfer a case on the ground that the
court is incapable of giving a fair and impartial trial. This usually refers to the judge’s
inability to be impartial and unbiased towards one of the parties.

In the case of MOHAMED EZAM BIN MOHD NOR & ORS v KETUA POLIS
NEGARA [2002] 1 MLJ 321, the applicant applied for the judge recuse himself from
hearing the case due to apprehension of bias as opposed to actual bias. The Court utilised a
test from the case of R v Gough called the ‘real danger of bias’ test. The test states that the
court must ask itself whether given the circumstances of the case, is there was a real
likelihood, in the sense of a real possibility, of bias. The court must take into account the
actual facts as disclosed by the evidence and, in particular, what it was that the judge knew at
the time the case was being heard.

In applying the real danger of bias test to the current situation, Tee applied for a
transfer due to concern of the impartiality of Rasputin because he and Alfa went to the same
university together. The facts of the case did not expand on that and only said that they went
to the same university together with no mention of whether they were acquainted with each
other, the same faculty or even friends. When referring to the case of Mohamed Ezam, the
only common factor between between the appellants and the 'Black 14' judgment of the
learned judge is that the appellants were detained by the respondent for organizing
demonstrations, one of which was on 14 April 2001 which became the foundation for the
'Black 14' allegation of the respondent. The court found that it was not enough to establish a
real possibility of bias and dismissed the appeal. In this situation, there is nothing else to
establish a connection between Alfa and Rasputin other than that they went to the same
university together which point towards a lack of actual possibility for a bias.

Therefore, the ground in which Tee applied for a transfer would not be valid.

The last sub issue is whether the Seremban High Court has the jurisdiction to hear
Tee’s application for a transfer.

Section 417(1)(bb) allows the High Court to transfer a case of a court subordinate to it
to any other court of similar or superior jurisdiction. In the case of TENGKU ABDUL MUIZ
SHAH & ORS v PUBLIC PROSECUTOR [1983] 1 MLJ 422, the applicant applied for a
transfer of case from the magistrate court of Johor Bahru to the High Court of Kuala Lumpur
and it was argued that the High Court of Kuala Lumpur would not have the jurisdiction to
hear the application in the first place. The Court considered what is meant by local
jurisdiction and in its view, the High Court’s local jurisdiction can be exercised in their
respective States and Territories.

In applying to the current situation, the facts of the case did not specify where the
alleged offence took place. Since Tee is to be tried at the Shah Alam court, it can be said that
the offence took place in Shah Alam. If the offence took place in Shah Alam, then the Shah
Alam High Court would have the competent jurisdiction to hear the application. This mirrors
the decision in the Tengku Abdul Muiz case where the court stated that since the offence took
place in Johor Bahru, the Johor Bahru High Court would have the competent jurisdiction to
hear such an application and thus, the application should be filed there.

In this case, the application was filed in the High Court of Seremban instead of Shah
Alam. Therefore, following the case of Tengku Abdul Muiz, it would not have the
jurisdiction to hear the application.

In conclusion, while Tee does have the statutory right to apply for a transfer of his
case from the High Court, he had erred in applying to the High Court of Seremban instead of
Shah Alam as well as not having a good enough ground to raise the possibility of bias.
Therefore, if I were High Court judge Lenin, I would not have granted the order.