The Federal Court has set aside a former tow truck driver's conviction for the murder of Arab-Malaysian Bank (AmBank) founder Hussain Ahmad Najadi and ordered his case to go for a retrial.

A five-person bench chaired by Chief Judge of Malaya Zulkefli Ahmad Makinudin unanimously allowed Koong Swee Kwan's appeal for the matter to be sent back to the High Court for a retrial.

He said it was highly prejudicial against Koong in the light of the High Court judge who had heard Koong's trial and the appeal of one of the prosecution witnesses.

Justice Zulkefli also set aside Koong's conviction and death sentence which was meted out on him by the High Court.

He then set Dec 19 for mention of Koong's case at the High Court before a new judge and directed that Koong be placed under remand.

Presiding with him were Federal Court judges Azahar Mohamed, Zaharah Ibrahim, Balia Yusof Wahi and Jeffrey Tan Kok Wha.

Koong, 47, was found guilty by the Kuala Lumpur High Court for killing Hussain, 75, at the car park of the Kuan Yin Chinese Temple at No 4, Lorong Ceylon here between 1.30pm and 2pm on July 29, 2013.

He was also convicted and sentenced to 18 years' jail for attempting to murder Hussain's wife Cheong Mei Kuen. He lost his appeal at the Court of Appeal on Nov 25, last year.

Koong's counsel Hisyam Teh Poh Teik submitted the High Court judge Mohd Azman Husin had heard Koong's trial and the appeal of taxi driver Chew Siang Chee who was facing charges for possession of a pistol and live bullets.

He said Chew's evidence in his own case contained highly prejudicial evidence against Koong.

Teh said Chew's appeal was heard by the High Court on Aug 8, 2014 and the decision was deferred to Sept 9, 2014 and the same High Court judge handed down his decision in Koong's trial on Sept 5, 2014 and had convicted him for murder and attempted murder.

Teh said the High Court judge ought to have recused himself from either hearing Koong's trial or Chew's appeal because when the decision to convict Koong was made, the judge was completely apprised of Chew's evidence in respect of his (Chew's) case.

At Koong's trial, Chew testified that Koong had asked him to come to the Kuan Yin Temple to fetch him. It was the prosecution's version that Chew helped Koong escape in his taxi after the shootings.

When asked by Justice Tan whether it had ever happened in Malaysia, the same judge heard the case of an accused person and the case of a witness, Teh replied that he did not come across any such case.

Deputy public prosecutor Wan Shaharuddin Wan Ladin argued that Koong's conviction was safe as evidence was overwhelming against him even without Chew's evidence.

"There is no miscarriage of justice on the totality of evidence," he said.

- Bernama