LDPD 1406/2015
IN THE LANDS TRIBUNAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
APPLICATION NO. LDPD1406 OF 2015
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| BETWEEN | | |
| | Lai Yi (厲怡) | Applicant |
| | and | |
| | Tsui Kin Chung (徐健中) | Respondent |
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Before: His Honour Judge K W WONG, Presiding Officer of the Lands Tribunal (in Chambers)
|
| Date of Hearing: 27 August 2015 |
| Date of Decision: 4 September 2015 |
| Date of Reasons for Decision: 5 October 2015 |
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Reasons for Decision (1)
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1. This is the hearing of the respondent’s following applications, namely,
i) that I should recuse myself in adjudicating the dispute between the parties (“recusal application”);
ii) that all directions or orders made by me in the present proceedings be set aside (“setting aside application”);
iii) that the present proceedings be transferred to the Court of First Instance (“transfer application”); and
iv) that there be leave to appeal against the vacant possession order made by me on 31 July 2015 in his summons) (“leave to appeal application”)
comprised in 3 summonses respectively dated 30 July 2015 (the (i) and (ii) applications), 31 July 2015 and 6 August 2015.
2. At the commencement of the hearing, the respondent was told that there was no possession order granted on 31 July 2015. He was asked whether he was in fact referring to the tribunal’s possession order made on 30 July 2015[1] when lodging the leave to appeal application. The respondent then produced a letter (in Chinese) of this tribunal stating that leave to issue a “收樓令狀”, i.e. a writ of possession as against a possession order, was granted on 31 July 2015[2]. The respondent said he intended to seek leave to appeal against this “收樓令狀” when he referred to “vacant possession order” in his leave to appeal summons. He said he was confused by the Chinese translation. It was explained to him that the said writ stands or falls together with the possession order made on 30 July 2015. The respondent then agreed to withdraw his leave to appeal application, and leave was granted at the hearing. Accordingly, only the 3 applications referred to in paragraph 1(i) to (iii) remain.
3. On 4 September 2015, the parties appeared before the tribunal again on another summons and for trial of the applicant’s main application. This tribunal dismissed the aforesaid 3 applications and indicated that reasons will be given in writing, and they are as follows.
Brief Background and Procedural History
4. The applicant and the respondent were landlord and tenant. By a tenancy agreement dated 10 July 2013, the applicant rented to the respondent the premises known as Flat 4, 23rd floor, Block A of Siu Hei Court, Tuen Mun (“the suit premises”) at a monthly rental of $6,900 for a term stated to be 2 years commencing 17 July 2013 to 16 July 2015, though it was provided further in the same agreement that the respondent was entitled to a 7-day rent free period prior to this term.
5. By a notice of application in Form 22 dated 2 July 2015, the applicant applied to this tribunal for an order against the respondent to deliver up vacant possession of the suit premises and for unpaid rent/mesne profits on the ground that the respondent had failed to pay rent since 17 June 2015 (“main application”).
6. The respondent responded promptly. On the next day, i.e. 3 July 2015, he filed a notice of opposition and a summons. It is worth noting the contents of each of these documents.
7. 4 grounds have been stated in the notice of opposition. Since they are rather short they are repeated below:
“(1) The Applicant has served her “notice to quit” in accordance with Clause 4 of the Tenancy Agreement entered of 10-July-2015 due to her personal reason;
(2) The Applicant fails bearing evidential burden to follow her legal burden, i.e. She never provides any documents in support of her allegation on the ground of arrears of rent.
(3) The Applicant’s application is out of Lands Tribunal’s jurisdiction/pure academic in nature;
(4) The Applicant’s application is abuse of court’s process.”
8. He does not deny having failed to pay rental as alleged in his notice of opposition, though it appears that he puts the applicant to strict proof of her case.
9. By the summons, the respondent asked for:
i) striking out of the main application under Order 18 rule 19 of the Rules of High Court (“RHC”) (“striking out application”); and
ii) An anonymity order (“anonymity order application”).
10. The summons was supported by an affidavit sworn by the respondent on 3 July 2015 (“the respondent’s 1st affidavit”) and returnable on 21 July 2015. This was also the date listed by the registrar for call-over of the main application. The respondent lodged a written opening speech before the commencement of the hearing. It is noted that he cited 4 judicial decisions in his 1st affidavit 2 of which are repeated in his opening.
Hearing on 21 July 2015
11. A 1-hour time slot was allocated for the hearing. The aforesaid 2 applications were dealt with as preliminary issues because if the striking out application is successful, it will be unnecessary to deal with the main application. At the hearing, the respondent confirmed all grounds relied on by him had been set out in his affidavit and written opening. Since the applicant had indicated she would file no affidavit, initially the parties were told that the tribunal would be handing down its decision in writing in due course. As the respondent had confirmed he had possessed copies of cases referred to in his affidavit and opening speech, he was asked, and did agree, to send to the tribunal before 4 or 4:30 in the afternoon a copy each of these cases for the tribunal’s reference.
12. Concerning the main application, the respondent maintained a non-admission stance upon enquiry of the tribunal. He, however, indicated for the first time that he intended to move out around 25 or 26 July 2015 and be in a position to deliver up vacant possession of the suit premises to the applicant on the 28th of the month. Upon knowing his stance, the parties were asked to arrange between themselves the handover of the suit premises, and if possible, to settle their dispute globally. The hearing was stood down to the afternoon in order for the parties to sort out the arrangement. The respondent also agreed to supply the copy authorities when he came back in the afternoon.
13. When the hearing resumed in the afternoon, the parties were unable to reach any agreement on the arrangement to deliver up the suit premises. At the end, by way of personal undertakings to the tribunal as suggested by it, the respondent agreed to hand over, and the applicant agreed to accept, vacant possession of the suit premises on 26 July 2015 by the respondent handing over the keys of the suit premises to the applicant at the suit premises at about 1 pm that date. The parties were also encouraged to sort out between themselves the net balance of any outstanding then. In light of the development, this tribunal adjourned the said summons and the call-over hearing to 30 July 2015.
14. The respondent filed his second affidavit in support of the striking out and anonymity order applications on 23 July 2015 (“the respondent’s 2nd affidavit”).
Hearing on 30 July 2015
15. Unfortunately the hand-over was unsuccessful. Prior to the hearing the respondent filed an affidavit made on 27 July 2015 (“the respondent’s 3rd affidavit”) setting out his case as to what happened on 26 July 2015. According to the respondent, he did not show up. Instead, he appointed 2 representatives to hand over the keys to the applicant. A document entitled “Delegation” authorizing one Miss Lee and Mr Wong to surrender the suit premises to the applicant was exhibited to the respondent’s 3rd affidavit.
16. At the hearing, the applicant said according to her understanding, the respondent should personally attend the handover as it was his promise to the tribunal to do so. Further, contrary to the one exhibited to the respondent’s 3rd affidavit, there were no names set out in a letter of authorization shown to her on 26 July 2015. Neither had the said 2 representatives disclosed their identities to her though at the end they identified themselves by their surnames. She said the 2 representatives said, as directed by the respondent, they needed not disclose their identities except to hand over the keys. She dared not take possession of keys or even enter the suit premises before she was absolutely sure that they had the respondent’s authority on the matter. She entertained suspicion that it might be a trap. She was afraid that if she took possession in the circumstances, it might give rise to excuses for the respondent lodging further complaints against her, given the complaining attitude and difficult personality of the respondent.
17. The respondent said he asked 2 church mates to hand over the keys on his behalf with a view to avoid conflict. Upon the tribunal asking for his further explanation, the respondent suddenly became irritated and switched from Punti to English. He refused to answer any further questions of the tribunal, saying that I showed bias against him, and said he would appeal. He then insisted to use English on the ground it was his constitutional right. Upon his insistence, the hearing was stood down in order that an interpreter could be arranged.
18. The hearing resumed about 5 minutes later when an interpreter attended. However, the respondent did not show up.
19. The hearing continued in his absence. The following directions were made:
i) The main application, the striking out and the anonymity order applications were set down for trial and full hearing at 10 am on 4 September 2015 in Court No.1 with 1 day reserved;
ii) Both parties do on or before 20 August 2015 file and serve witness statements as to fact to be relied on by the parties at trial together with supporting documents;
iii) A copy of today’s order hearing be drawn up and be served on the respondent by my clerk; and
iv) Costs of the hearing be in the cause.
(collectively “the case management directions”).
20. At the same time, the tribunal ordered the respondent to deliver vacant possession of the suit premises to the applicant forthwith (“possession order”).
21. The applicant applied for a writ of possession the same date, and it was granted the next day.
The Recusal Application - Principles
22. A fair and impartial hearing in a court of law is a fundamental right of any person in Hong Kong guaranteed by Articles 14 and 26 of the International Covenant on Civil and Political Rights as entrenched locally by Articles 10 and 22 of the Hong KongBill of Rights. Actual bias against a party will invalid any court decision as the aforesaid fundamental principle will be offended. However, not only justice must be done it must also be seen to be done. If it can be shown that there is apparent bias by a judge against a litigant, the judge hearing the dispute should disqualify himself in further adjudicating the dispute because it cannot be said justice is seen to be done. It will be immaterial whether at the end the correct decision has been or will be made.
23. The test for determining whether there is apparent bias has been reviewed, and accepted, by the Appeal Committee of the Court of Final Appeal in 2003 in Deacons v White & Case[3], and is as follows:
“The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”
24. This 2-stage “real possibility test” has been consistently applied by the Court of Appeal in recent cases such as in Chau Siu Woon v Cheung Shek Kong[4] and Falcon Private Bank Limited v Borry Bernard Edouard Charles Limited[5].
25. The first stage is to ascertain all the circumstances which have a bearing on the suggestion of bias. The second stage is to assess, through the prism of a fair-minded and informed observer, whether there is a real possibility that the tribunal is biased.
26. In the tribunal’s judgment, the point of view of the fair-minded and informed observer will be different from the complainant, or a lawyer or a man in the street. As regards the sort of person this fair-minded and informed observer is, Cheung JA adopted the observations of Lord Hope in the House of Lords decision in Helow v Secretary of State for the Home Department and another[6] in §13 of Chau Siu Woon, as follows:
“[7]The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488,509, para 53. Her approach must not be confused with that of the person who has brought the complaint. The “real possibility” test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.”
27. In many common law jurisdictions similar objective tests through the standpoints of a fictitious observer or bystander are applied. In Johnson v Johnson[8], an Australian High Court authority, Kirby J has summarized the attributes of the bystander, and in the tribunal’s judgment, they are the same as those of a fair-mind and informed observer:
“[53] The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer (Raybos Australia Pty Ltd v Tectran Corp Pty Ltd (NO 9) (27 November 1990, unreported) at 20 cited in Spedley Securities (1992) 26 NSWLR 411 at 419). Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided (R v George (1987) 9 NSWLR 527 at 536 per Street CJ). Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances. The bystander would be taken to know commonplace things such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers (Galea v Galea (1990) 19 NSWLR 263 at 282). The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted (Wentworth v Rogers (No 12) (1987) 9 NSWLR 400 at 422). The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality (R v S (RD) [1997] 3 SCR 484 at 533, President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 at 177). Acting reasonably, the fictitious bystander would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context (R v S (RD) [1997] 3 SCR 484 at 505, Galea v Galea (1990) 19 NSWLR 263 at 282). Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious (cf R v S (RD) [1997] 3 SCR 484 at 505).”
28. Further in Ioof Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd& Ors[9], a case where the judge had engaged in heated debates with some degree of hostility with a counsel whose client had later applied for disqualification of the judge, the Supreme Court of South Australia has the following to say (per Doyle CJ at §174 and §179):
“[174] I consider that disqualifying bias is not established merely by pointing to circumstances indicating tension, or even some hostility, between the judge and counsel. The relevant principles are directed towards ensuring the appearance and the reality of a fair hearing. That is, one in which the case on each side is fairly considered. Just as that does not require that a judge approach the merits of the case with no preconceived views about issues that might arise in the case, so long as the judge is willing to listen fairly to argument on either side, so the principle does not require that the judge not have, or at least not disclose, any adverse views about a particular counsel appearing in the case. What is important is that the judge be willing to consider the case presented by that counsel fairly. It is when the hostility between the judge and the counsel is such that the fair-minded observer might reasonably apprehend that the judge will not fairly consider the case being presented for the client that disqualifying bias is present.
[179]… The Court [in Galea v Galea (1990) 19 NSWLR 263] said that the transcript revealed that the judge was evidencing a high degree of impatience with the party's answers to questions, and was indicating a view that the party was not telling the truth as required. … Although the case dealt with a complaint based upon the attitude of the judge to a party, it is helpful to mention two of the points made by Kirby ACJ in his reasons. He said (at 279):
"In judging the suggestion of a supervening apprehension of bias, it is reasonable to assume that the hypothetical lay observer would base the opinion on a fair assessment of the judge's conduct in the context of the whole of the trial. A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. ..... On the other hand, the right, and perhaps the duty, of the judge to expose the development of his thinking to the appellant, and explain and justify what he said, can be viewed as a whole and seen in the context. This is especially so when it is considered that the hypothetical lay observer would most likely also have been irritated by some of the appellant's prevarications and would have been aware that, soon afterwards, the emotional storm had passed and the trial resumed its steady progress on calmer seas."
This passage emphasises the importance of viewing the matters complained of in their context in the trial, and equally importantly the need to bear in mind the duty of the judge to expose his thinking to the parties.” (Emphasis added)
29. This tribunal will adopt the above to form the prism through which the complained circumstances are to be reviewed. Further, even there may be momentary disagreement between the bench and a party, even with hostility, the matter would be viewed by the objective fair-minded and informed observer as a whole but not in isolation.
The Recusal Application - The Circumstances
30. In the present case the respondent filed a total of 4 affidavits sworn on 30, 31 July, 6 and 24 August 2015 (respectively referred to as the respondent’s 4th, 5th, 6th and 7th affidavit”). Although this tribunal do not consider that the respondent can establish actual bias, the respondent said I am guilty of both actual and apparent bias. In the tribunal’s judgment, it will be unnecessary for the tribunal to consider actual bias unless the lesser burden in proving apparent bias can be discharged, or that the respondent put in direct evidence establishing the extraneous influence which has affected my decision, which is lacking now. The tribunal considers the following, so far as can be discerned from the respondent’s various affidavits, a fair summary of the circumstances which have a bearing on the respondent’s suggestion that I was biased (actual or apparent) against him:
i) not exercising good case management in that I have expressed my opinions on the matter and wasted time on asking irrelevant questions[10], thus hijacking the hearing arbitrarily and wilfully[11];
ii) not allowing the respondent to clarify his argument[12], or is impatient to listen to the respondent’s submission[13];
iii) not handling the respondent’s interlocutory application of 3 July 2015[14];
iv) requiring the respondent to submit legal authorities but not the applicant to submit evidence[15], and such is too onerous to the respondent who is not legally qualified;
v) providing legal advice to the applicant and help her conduct litigation[16];
vi) criticising the respondent not being a reasonable man[17] and maliciously[18]; speaking loudly to him[19]; behaving rudely at both the 1st and 2nd hearing[20] and keep criticising the respondent at the 2nd hearing[21]; and seems to be loss of emotional control[22] thus depriving him of a fair trial[23];
vii) harassing him and showing no respect to the respondent who is suffering from depression[24];
viii) misleading the respondent to use Chinese and criticising the respondent’s standard of English being poor[25];
ix) being oppressive against him by requiring the parties to stand up when addressing the court[26];
x) asking self-incriminating question against the respondent as to why he did not attend the handover personally[27];
xi) descending into the arena by asking questions[28], rendering the hearing into inquisitorial instead of adversarial[29]; and
xii) accepting the applicant’s non-sense and illogical argument without explanation and keep asking “… a theoretical question that the reason not to initiate different legal proceedings by the applicant.”[30].
The Recusal Application – The Review
(i) Not Exercising Good Case Management, expressing Opinion and Asking Irrelevant Questions, etc
31. The respondent has not spelt out with particularity which part or parts of hearing which he considered I have not exercised good case management. He also did not spell out what opinion has been expressed by me which he considered inappropriate. As such these complained circumstances can only be commented generally.
32. The following 2 questions are the only questions that can be identified from the respondent’s affidavits which he alleged to be irrelevantly asked by me:
i) “… kept asking a totally irrelevant question that the explanation for Respondent in person not to appear on 26-July-2015 to deliver vacant possession to the Applicant.”[31]
ii) “Especially, Judge WONG kept asking a theoretical question that the reason not to initiate different legal proceedings by the Applicant.”[32]
33. As set out above, the parties first appeared before the tribunal on 21 July 2015. The hearing was eventually split into 2 sessions because almost towards the end of the hearing in the morning the respondent indicated for the first time he would deliver up vacant possession of the suit premises.
34. The first session lasted for about 50 minutes in the morning. Most of the time was used up in connection with the respondent’s summons. Since the respondent had already filed his 1st affidavit and skeleton, and had indicated that he would be relying on materials already set out in writing, it would be unnecessary for the respondent to repeat orally what he had already written down, save and except answering a few questions from the tribunal clarifying the basis of his striking out application. His explanation included, inter alia, that since the blank in Form 22 was not filled up as to under which section of the Landlord and Tenant (Consolidation) Ordinance (“LT(C)O”) the application was taken out, or that it was under common law, the document disclosed no reasonable cause of action. His explanation is useful to the tribunal as it is the only ground for the first limb of the striking out. The respondent was given ample opportunity to supplement his views and he did so at that hearing. He raised no complaint throughout the hearing.
35. It is through the exchanges between the bench and the respondent that he broke out his intention to deliver up the suit premises. It is to be remembered that the first hearing was to deal with preliminary issues only. The main application has not yet been dealt with. The parties only need to further prepare their case when the preliminary issues are disposed against the respondent. Since delivery up of the suit premises is one of the 2 reliefs sought by the applicant, the disposal of this issue obviously throws light on settlement of the remaining issue, and the dispute globally.
36. After the Civil Justice Reform, one of the underlying objectives of the RHC which are also applicable to Lands Tribunal proceedings is to facilitate settlement of disputes[33]. In fact the court is under a duty to further these underlying objectives by, inter alia, encouraging the parties to resort to alternative dispute resolution[34] or settling the whole or part of the case[35]. In order to achieve the underlying objectives the court is given a bundle of powers including adjournment of a hearing.
37. It is in light of the respondent’s indication to deliver up that the hearing of the summons dated 3 July 2015 was adjourned to the afternoon with a view that the parties could agree on the handover, and if possible their dispute totally. It was further adjourned to 30 July 2015, and subsequently 4 September 2015.
38. The afternoon session lasted for about 30 minutes. At the suggestion of the tribunal, the parties agreed to effect the delivery up on 26 July 2015. From the record, the respondent welcomed the tribunal’s proposal and expressed that he would in any event deliver up vacant possession of the suit premises to the applicant even though rental deposit was not refunded at the same time. His summons of 3 July 2015 and the main application were adjourned to 30 July 2015. The tribunal fails to see why the tribunal is said not having exercised good case management.
39. With a view to encourage settlement, the tribunal may be speaking on matters other than the subject matters of the respondent’s summons or the main application. Different judges may have different style and ways of facilitating settlement. The presiding judge has a wide discretion and power as to how to achieve the underlying objective aforesaid so far as dignity of the court and fairness can be maintained. Since the parties are unrepresented, it is totally legitimate for the tribunal to expose to them what the tribunal thinks the law is for the particular hearing.
40. It may perhaps be the second hearing on 30 July 2015 that the respondent would like to refer to. The parties were asked to explain in turn to the tribunal as to why the delivery up on 26 July 2015 failed. The matter is of course a concern to the tribunal because the handover was arranged with the assistance of the tribunal and by way of personal undertakings to it. Naturally the tribunal deserves an explanation from the parties. Further, there was allegation from the applicant that the respondent did breach his personal undertaking by failing to show up personally. In any event, if the problems can be identified and the parties are still ready and willing to settle, it will be appropriate for the tribunal to give the parties a second try, bearing in mind it takes time for legal proceedings to finish their course, not to mention the additional costs that may incur.
41. The respondent now said one of the irrelevant questions is my request to him for an explanation[36]. He felt irritated. This tribunal did explain to the respondent why an explanation is required. My speech may not appear persuasive to the respondent, or the exchanges between the bench and the respondent may not be expected of or welcomed by him. The tone used may appear to the respondent a serious and strong one. On the other hand he may have dozens of reason for not showing up on 26 July 2015 personally. He may, out of caution, not want to disclose his case to the Tribunal for fear that it may incriminate him for breach of court’s undertaking. He may have good reasons (which this tribunal has never heard of, at least at the hearing of 30 July 2015) for refusing to answer questions of this tribunal. However, that does not mean the question for an explanation irrelevant. As analyzed above, it is entirely legitimate and natural for the tribunal to know why the delivery up on 26 July 2015 failed. Questions in this connection are obviously relevant.
42. Even assuming (without accepting) that question for explanation should not have been asked and the respondent may have a legitimate concern about self-incrimination, the respondent should have informed the tribunal his genuine concern and let the tribunal rule on the issue. He never did and simply refused without further rational dialogue. In any event the tribunal did not press on in light of the respondent’s manner. In the tribunal’s judgment, in the eye of a fair-minded and informed observer who is expected to be informed of at least the judge’s duty to facilitate settlement and his concern to know why arrangement made through him not working in the end, no conclusion of real possibility of bias can possibly be reached by a fair-minded and informer observer.
43. As to the second question which the respondent has stated[37] with due respect it is not understood and therefore cannot be dealt with.
(ii) Not Allowing the Respondent to Clarify/Impatient to Listen
44. Time is a kind of resources and is not unlimited. All legal proceedings are therefore have to be conducted within the confines of time. It is common practice now for written evidence and skeleton to be submitted to court prior to hearing. The parties are only invited to address the court on areas which, in the opinion of the court, are not covered or not sufficiently covered or where the court has a query/interest on a legal proposition or area(s). Even if time is given for a party to make oral submission, it is not uncommon for the court to limit its time. There is therefore no absolute right for a party to be given whatever time he wants to do his submission in order to achieve his sense of justice.
45. Apparently the respondent is referring to the hearing of his summons to strike out and for an anonymity order. It is not true for the respondent to say he had not been given a chance to clarify his argument. He was given a chance to orally address and he did address the tribunal[38]. It is only upon his reply that all matters and grounds he would like to rely on were contained in affidavits and written submissions that he was told the tribunal would read through them before coming to a conclusion. He was questioned by the tribunal with a view to clarify his case[39]. He was also asked to supplement his case by producing the legal authorities he had already in hand. He raised neither objection nor complaints at both hearings of 21 and 30 July 2015. A fair-minded and informed observer will be aware of the fact the tribunal is working under time constraint and that detailed written materials have already been lodged with the tribunal prior to the hearing. In the tribunal’s assessment, no conclusion of real possibility of bias will possibly be arrived at by such observer.
(iii) Not Handling the Respondent’s Interlocutory Application of 3 July 2015
46. As explained above, the 3 July 2015 summons was adjourned as a result of apparent consensus on the delivery up of the suit premises despite the fact that submission was completed in the morning of 21 July 2015. When the matter resumed on 30 July 2015, it was adjourned to 4 September 2015 to be dealt with together with the applicant’s main application. After inviting the parties to supplement their submission, the said summons was dismissed. This tribunal cannot see how a fair-minded observer informed with knowledge of background and circumstances leading to the adjournment will conclude there being real possibility of the tribunal bias against him.
(iv) Requiring the Respondent to Submit Legal Authorities but not Requiring Evidence from the Applicant, and such is too Onerous to the Respondent who is not Legally Qualified
47. This is totally misleading. Prior to the first hearing, the respondent has already put in his 1st affidavit and a written submission both citing a number of legal authorities. He was only asked to produce a copy each of the authorities when he said he could make it. He never raised any query or objection. He had never been asked to produce cases other than those referred to by him. In the course of his exchange with the bench on anonymity he was told there was also a recent decision of the Court of Appeal on the same subject other than those referred to by him. However, at no time he was told the citation nor asked to look it up, not to mention to produce it to the tribunal.
48. As regards the complaint for not asking the applicant to file his evidence, the 21 July 2015 hearing is the first hearing and has been used to deal with the preliminary issues. It will be too early to file evidence for the main application at that stage. The applicant confirmed she would not file any evidence for the preliminary issues. In any event the applicant may not be in any position to respond to the respondent’s personal circumstances relied on for the anonymity order. It will also be unfair to enter judgment or make orders in terms of his applications simply because the applicant, who is unrepresented, does not know how to respond to applications which are basically technical.
49. It is not until 30 July 2015 when the handover failed that the tribunal directed filing of evidence for the trial. Both parties are required to file and serve their evidence. Neither party is pinpointed nor favoured. No fair-minded and informed observer knowing the circumstances will conclude there being any real possibility of this tribunal showing apparent bias against him.
(v) Providing Legal Advice to the Applicant and Help her Conduct Litigation
50. It is noted that the respondent raised this issue in paragraph 13 of his 6th Affidavit when he also said this tribunal requested him to provide precedents. He also said that I have told him before joining the bench I was a barrister. After revealing records for the 2 hearings it is obvious what the respondent has said are either factually untrue or a serious distortion of what had actually happened. At no time during the 2 hearings on 21 and 30 July 2015 has this tribunal given any legal advice to the applicant. Neither had I ever told him that I am a barrister. Further, he was asked to provide the authorities he relied on because he said he had already got them. It is not a case where he was directed to substantiate his case with legal authorities even when no authorities have ever been relied on by him.
51. No particulars have been provided as to the alleged advice given by this tribunal to the applicant. Given this allegation is factually untrue, no fair-minded and informed observer will come to any conclusion of bias.
(vi) Criticizing the Respondent Not Being a Reasonable Man and Maliciously, Speaking loud and Rude to Him and Loss of Emotional Control, thus Depriving Him of a Fair Trial
52. As said above the respondent became irritated when he was asked to explain why he was absent on 26 July 2015. He abruptly started to switch to English from Punti and thereafter engaged with the tribunal, alleging the tribunal showing bias against him. There and then he said he would not reply but would appeal and apply for change of judge, etc. It appears to the tribunal the respondent has difficulty to control his emotion, probably because of his own medical condition.
53. When he switched from Punti to English he addressed the tribunal as “My Honour”. He was immediately corrected that the proper address should be “Your Honour”. He rejected my correction and countered to the effect that in the High Court the address is “My Lord” and not “Your Lord”, and the address in the tribunal should accordingly be similar. After hearing him he was asked to sit down.
54. The tribunal then explained to the parties there were good reasons to ask for an explanation, and that the tribunal then had made no decision that could form the subject matter of an appeal. However it is factually untrue that he had ever been criticized as unreasonable, though in view of his personal condition such perception on his part cannot possibly be ruled out.
55. In the process described in the preceding paragraphs, the tribunal was straight forward and may have lifted its voice in view of the respondent’s overreaction. This is entirely with a view to properly control the situation. It may not be well-received by him who is suffering from depression. With the benefit of hint-sight and knowing the respondent’s limits as revealed from his behaviour in court subsequently, perhaps a better-polished tone or approach should have been adopted. However, from a review of the tone and what have been said to him during the 2 hearings, the tribunal is far from being rude or there having been loss of temper on my part, as alleged or at all. The allegation of malice is a serious one and is totally unsubstantiated.
56. The respondent admits he overreacts to everything[40]. From what has been observed by this tribunal during the various hearings, the respondent is sensitive and subjective. However, a fair-minded and informed observer is not unduly sensitive or suspicious. Neither is he subjective. This observer will also be aware of the particular situation when there is an outburst of tempers by a party during a hearing, and with a view to properly control the situation a judge may have used words or tone which could have been better said. From an overall assessment, in the judgment of the tribunal no conclusion of real possibility of bias can possibly be reached by a fair-minded and informed observer in the circumstances.
(vii) Harassing Him and Showing no Respect to the Respondent who is Suffering from Depression
57. The tribunal’s assessment will be the same as under head (vi) above. It is due to the personal circumstances of the respondent who may feel harassed or not being respected. The tribunal considers no fair-minded and informed observer will come to a conclusion there being real possibility of me biased against him.
(viii) Misleading the Respondent to use Chinese and Criticising the Respondent’s Standard of English Being Poor
58. It was the respondent’s submission at the second hearing that he has a right to use English. It is true because in Hong Kong, both English and Chinese are official languages. In fact in Hong Kong an unrepresented party is always allowed to use a language (whether or not an official language) of his choice which he can best express himself in order he can have a fair hearing. The court will then try its best to provide an interpreter to do interpretation between the language chosen by a party and one of the official languages used by the court.
59. When the respondent switched to English at the second hearing it was true that the tribunal had advised him to switch back to Punti. It is because, and with no disrespect to the respondent, from the English spoken by him, the tribunal did not believe the respondent could express himself orally in English clearly and fully. He insisted on using English and he was allowed to do so. It is the respondent who chose not to show up after the interpreter attended.
60. The advice to the respondent to use Punti does not amount to criticism. It is entirely out of goodwill. The discussion had all along been proceeded on the basis he is free to use any language of his choice. This tribunal believes no fair-minded and informed observer will in the circumstances conclude there being any real possibility of the tribunal being bias against him.
(ix) Being Oppressive Against the Respondent by Asking the Parties to Stand up when Addressing the Court
61. It is a fact that this tribunal did ask the respondent to stand up when making submission. But likewise, when it is the applicant’s turn she was also asked to stand up. Both received the same treatment. This practice appeared totally acceptable to the parties at the 2 hearings. From the record, after he was asked to stand up at the commencement of the hearing on 21 July 2015 when the respondent first address the tribunal, whether to stand up has never been an issue at both hearings. In fact when the respondent wanted to say something in the course of the first hearing, he did put up his hand and asked whether he could stand up before making submission. This tribunal simply fails to see why standing up while addressing the tribunal is now regarded as oppression on him.
62. It is provided in section 10(5)(a) of the Lands Tribunal Ordinance, Cap 17 (“LTO”) that the proceedings of the tribunal shall be conducted with as much informality as is consistent with attaining justice and, for this purpose, the President may give directions as to the manner and form in which proceedings shall be conducted. It is totally understandable because the Lands Tribunal is established with a view to provide for a venue where lands related disputes can be disposed of in a speedy, inexpensive and simple manner. A majority of these lands related matters are landlord and tenant disputes where parties are very often unrepresented. They may know nothing about court procedure. Thus relaxation in procedure will be of great assistance to unrepresented litigants.
63. On the other hand, the relaxation in procedure should not lead to a compromise of justice. So it is entirely a balancing exercise for the presiding judge. It has been directed that presiding officers should as far as possible, act in the spirit of this requirement and do their best to ensure that proceedings are conducted in as simple a manner as is consistent with dignity and good order. Accordingly, among other things, presiding officer, counsel and solicitors are not required to wear their wigs, robes and gowns. The presiding officer can even elect not sitting on the bench. There are also other procedural relaxations such as when the issues raised in the notice of application are incomplete, the proper way is to adjourn for amendment, not to dismiss the claim totally. By virtue of section 10(6) LTO, the tribunal may even accept unsworn evidence under certain circumstances.
64. There are no hard and fast rules regarding how proceedings in the tribunal should be conducted, and in particular, whether a party is required to stand or sit down when addressing the tribunal. It is entirely at the absolute discretion of the presiding officer who will take into account all the circumstances of the case having regards to the aforesaid spirits. Different judges may adopt different approaches. Even the same judge may adopt different approaches for different proceedings and according to the particular circumstances of parties or a case. In the unusual situation where an unrepresented party behaves in too relaxed a manner or displaces frivolous behaviour or disrespectful manner, it may be possible, and in the tribunal’s judgment, entirely appropriate that this party should be asked to stand up when addressing the court with a view to maintain dignity and solemnity of the court.
65. As a matter of good tradition and showing respect, counsel and solicitors appearing before the tribunal normally stand up when addressing the tribunal. For unrepresented parties, speaking for myself, unless the parties are seniors or with a health issue or that a long speech is expected, they are normally invited to stand up when addressing the tribunal. The respondent is simply asked to stand as a usual practice of my court. Likewise, the applicant is also asked to stand up when addressing the tribunal. Both parties receive the same treatment and no one has been unfairly treated. This tribunal does not believe a fair-minded observer with the informed background outlined above will possibly come to any view that there is a real possibility of the tribunal being bias against the respondent.
(x) Asking Self-incriminating Question Against the Respondent as to Why he did not Attend the Handover Personally
66. This issue has been dealt with in the preceding paragraphs[41] and the tribunal does not want to repeat its response to it.
(xi) Descending into the Arena by Asking Questions[42], Rendering the Hearing into Inquisitorial instead of Adversarial
67. This issue is partly responded to in paragraphs 36 to 42 above and will not be repeated here.
68. Simply put, in an adversarial system, it is the competing parties who have the burden to establish their respective cases before an independent impartial and disinterested third party as adjudicator, whereas in an inquisitorial system, at least some of these responsibilities are assumed by the said third party. The proceedings in the Lands Tribunal are basically adversarial.
69. However, the fact that it is an adversarial trial does not mean the tribunal will not seek to clarify even when a case is not understood or not sufficiently clear. Further, when the parties are acting in persons, a presiding officer will not be doing justice if he does not actively participate, discuss and ask questions with a view to identify the issues in dispute or to ensure a party has told his story in full. It is also acceptable for the bench to expose his thinking to the parties as the case proceeds, so far as he is still open to persuasion and hear the parties.
70. There are, again, no particulars as to what questions the respondent considers inappropriate as they render the hearing inquisitorial from adversarial. A fair-minded and informed observer with knowledge of the tribunal’s duties and its objectives will definitely not come to any conclusion that there is a real possibility the tribunal is bias against him based on this allegation.
(xii) Accepting the Applicant’s Non-sense and Illogical Argument without Explanation and Keep Asking “… a theoretical question that the reason not to initiate different legal proceedings by the applicant.[43]”
71. The question stated by the respondent is, with due respect, not understood. Further, at the 2 hearings held on 21 and 30 July 2015 the applicant did submit her side of the story. In the judgment of the tribunal, it is not senseless as alleged though apparently the respondent did not accept or welcome her submission. In any event save and except the question of possession on which the respondent also consented to delivery up, the tribunal has not made any decision on any of applications between the parties on 30 July 2015.
72. Given the flimsy allegation of the respondent, no fair-minded and informed observer will consider that there is any real possibility of the tribunal showing bias to the respondent based on this allegation.
Conclusion and Order Regarding the Recusal Application
73. By reasons of the above it is the judgment of this tribunal that the respondent’s recusal application is hopeless, and is hereby dismissed.
The Setting Aside Application
74. The respondent’s application was couched in the following terms:
“To set aside all direction or order made by H.H. Judge WONG.”
75. Since no dates of the orders/directions have been specified, this tribunal takes the respondent to mean setting aside each and every order or direction made by me prior to taking out of his summons, i.e. 21 and 30 July 2015. The directions and orders made on 30 July 2015 have been set out in paragraphs 19 and 20 above. They are respectively the case management directions and the possession order. The directions made on 21 July 2015 are as follows:
i) The call-over and the respondent’s summons dated 3 July 2015 be adjourned to 11:30 am of 30 July 2015 at Court No.1 of the Lands Tribunal with 1 hour reserved;
ii) Costs reserved.
76. It is obvious that save and except the possession order made on 30 July 2015, all other directions are in fact case management directions. In the tribunal’s judgment, the orders and directions have been perfected by sealing. The directions made on 23 July 2015 are obviously made on inter-parte basis. Although on 30 July 2015, the directions and order were made in the absence of the respondent, it is the respondent who chose not to show up when the hearing resumed. In the judgment of the tribunal, they should be regarded as made at an inter-parte hearing as well.
77. Accordingly, if the respondent is minded to challenge these directions and the possession order, he has to first of all seek leave to appeal from this tribunal. For the reasons below, this tribunal considers his application to set aside or for leave to appeal, even if it were lodged, hopeless.
78. Upon a perusal of the affidavits made by the respondent, this tribunal considers that the only grounds for the setting aside/leave to appeal are: (i) that the tribunal was biased against him and therefore all directions and orders made by the said tribunal should be set aside because he has not got a fair hearing; and (ii) the tribunal made the decision in his absence.
79. Since the tribunal has ruled against him on the bias ground, the second ground is the only ground to be considered.
Case Management Directions
80. The appellate court has made it plain and clear that when a judge orders the adoption of a particular course of conduct for the trial or future conduct of a case in the interests of justice, his decision is not to be interfered with by an appellate court unless it is plainly wrong: see Korea Building Materials Trading Corp. v Hong Kong Dongil Trading Co. Ltd[44]. This approach is very likely to survive the Civil Justice Reform: see §25/1A/14 of Hong Kong Civil Procedure, 2015.
81. The same principles, in the tribunal’s judgment, are equally applicable when considering whether to set aside. This tribunal cannot see how the aforesaid case management directions can be regarded as plainly wrong. In fact even the respondent has seen fit to observe the tribunal’s directions made on 30 July 2015 by filing his witness statement on 19 August 2015. Further, for directions made on 30 July 2015, he knowingly and without any explanation chose to walk out. In the circumstances, the application to set aside the case management directions made on 21 and 30 July 2015 are totally unwarranted and hopeless. Needless to say, the tribunal does not consider the appeal, if it were lodged, has a reasonable prospect of success[45].
The Possession Order
82. The same reasoning applies to the possession order. Further no matter on 21 July 2015 when he appeared personally before the tribunal and also by his 3rd Affidavit of 27 July 2015, the respondent made it clear he was willing to surrender the suit premises to the applicant. The enclosed “Delegation” authorizing 2 church mates was said by him to have been executed to give effect to the handover. He even accused the applicant’s refusal to take up possession a mistake. Though he has not admitted expressly the rental since 17 June 2015 remaining outstanding, he in fact has never denied it in his Notice of Opposition dated 3 July 2015. It was also implied in his affidavits and statement that he is entitled to have the rental deducted from the rental deposit paid to the applicant. Further, when the possession order was made the tenancy between the parties has already expired. This tribunal cannot see how as a matter of merit he can set aside an order for return of the suit premises which he has agreed to do so.
83. The setting aside application is totally without merits and in the tribunal’s judgment, hopeless. It is hereby dismissed. Even if it were a leave to appeal application, this tribunal would have dismissed it as there is simply no prospect of success in the appeal.
The Transfer Application
84. From the respondent’s 5th, 6th and 7th Affidavits and his oral submission, it seems that the only ground for the transfer are:
i) that I have been biased against him; and
ii) there is no legal aid available to him as he has applied for legal aid and he was told it was not available to proceedings in the Lands Tribunal.
85. As the tribunal has ruled against him on the bias point, the only issue is whether the legal aid point is sufficient to warrant a transfer.
86. It has been provided under section 8(8) of LTO that this tribunal has jurisdiction to adjudicate possession application under the LT(C)O or otherwise and to make order for, inter alia, payment of rents and mesne profits. Under section 8(9) of the LTO, this tribunal also has the same jurisdiction to grant remedies and reliefs, equitable or legal, as the Court of First Instance (“CFI”). Section 8A(1) of LTO stipulates that the matter can be transferred to, inter alia, the CFI in the interest of justice. As this case falls squarely within the jurisdiction of this tribunal, unless there is good reason for so doing, this case should continue be dealt with in this tribunal.
87. As can be seen from section 5 (read together with part 1 of schedule 2) of the Legal Aid Ordinance, Cap 91 (“LAO”), it is true that legal aid is basically not applicable[46] to proceedings in the Lands Tribunal. However, this ground alone is insufficient to justify a transfer otherwise each and every case initiated in the Lands Tribunal should be transferred to the CFI or the District Court where legal aid is available. It is noted that although the respondent is unrepresented, he appears to know his rights and procedure more than the applicant, who is also unrepresented. He demonstrates an ability to conduct litigation and know very well the kind of applications available to a litigant. He has so far filed a total of 4 summonses comprising 6 different applications, 7 affidavits, a witness statement and a written submission. A number of legal authorities are referred to by him in his affidavits and skeleton. He also took out 2 proceedings against the applicant in the Small Claims Tribunal after the main application. This tribunal has no hesitation to believe he has the ability to conduct his litigation. His interest will not be prejudiced at any rate even though legal aid is not available to proceedings in the Lands Tribunal.
88. The transfer application is therefore dismissed.
Conclusion and Orders
89. By reasons of the above, the respondent’s recusal application, the setting aside application and the transfer application are dismissed.
90. From what has been discussed above, the respondent’s applications are devoid of merits. As costs are to follow the event, this tribunal fails to see why he should not be liable to pay costs of the applicant. By summary assessment, I consider $800[47] appropriate. This tribunal therefore makes a costs order nisi that the respondent is to pay the applicant’s costs of these 3 applications assessed summarily at $800, and the same will be made absolute unless an application by either party is made to have it varied within 14 days from today.
| (WONG King-wah)
Presiding Officer
Lands Tribunal |
The applicant appeared in person
The respondent appeared in person
[1] See §20 below.
[2] He received a letter from the Land’s Tribunal to the applicant dated 3 August 2015 copied to him.
[3] [2004] 1 HKLRD 291 at 298A to B, para 20.
[4] [2010] 3 HKLRD 49
[5] [2014] 3 HKLRD 375
[6] [2008] 1 WLR 2416
[7] At p2418 of Helow
[8] [2000] 5 LRC 233 at §53
[9] [1999] SASC 249
[10] See §2 of the respondent’s 4th affidavit, §5 of the respondent’s 5th affidavit and §6 of the respondent’s 6th affidavit
[11] See §6 of the respondent’s 5th affidavit
[12] See §1 of the respondent’s 4th affidavit
[13] See §7 of the respondent’s 6th affidavit
[14] See §6 of the respondent’s 6th affidavit
[15] See §2 of the respondent’s 4th affidavit
[16] See §13 of the respondent’s 6th affidavit
[17] See §3 of the respondent’s 4th affidavit
[18] See §6 of the respondent’s 6th affidavit
[19] See §5 of the respondent’s 6th affidavit
[20] See §2 of the respondent’s 5th affidavit
[21] See §3 of the respondent’s 4th affidavit
[22] See §4 of the respondent’s 6th affidavit
[23] See §6 of the respondent’s 6th Affidavit
[24] See §8 of the respondent’s 5th affidavit
[25] See §3 of the respondent’s 4th affidavit
[26] See §4 of the respondent’s 4th affidavit
[27] See §5 of the respondent’s 4th affidavit
[28] See §5 of the respondent’s 5th affidavit
[29] See §4 of the respondent’s 6th affidavit
[30] See §6 of the respondent’s 5th affidavit
[31] The last sentence of §5 of the respondent’s 4th affidavit
[32] The 2nd sentence of §6 of the respondent’s 5th affidavit
[33] RHC O.1A, r1(e)
[34] RHC O.1A, r4(2)(e)
[35] RHC O.1A, r4(2)(f)
[36] See §32 above
[37] See §32(ii) above
[38] This leads to his complaint that he was asked to stand up addressing the tribunal.
[39] See §34 above for the sort of questions asked
[40] See §29 of the respondent’s 2nd affidavit
[41] See §§38 to 42 above
[42] See §5 of the respondent’s 5th affidavit
[43] See §6 of the respondent’s 5th affidavit
[44] (unreported) CACV 198 of 1993, February 24, 1994
[45] See the test for leave to appeal in s.11AA(6) of the LTO, Cap 17
[46] Only applicable to certain proceedings under Part II of the LT(C)O
[47] Being 1 hour for the hearing and 3 hours for preparation and perusal of papers filed by the respondent at an hourly rate of $200.