GM SA aka DG, M S v. DDPJ
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FCMC 9657/2016
[2022] HKFC 237
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MATRIMONIAL CAUSES
NUMBER 9657 OF 2016
________________________
BETWEEN
| GM-SA aka DG, M-S | Petitioner | |
| and | ||
| DDPJ | Respondent |
________________________
Coram: His Honour Judge G. Own (By Paper Disposal)
Date of written submissions: 7 March 2022
Date of written submission in reply: 14 March 2022
Date of Decision: 7 November 2022
________________________
DECISION
(Recusal)
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General Background
1. These divorce proceedings were brought by the Petitioner wife (to whom I will refer as “W”) relying on the fact of “Mild Unreasonable Behaviour” of the Respondent husband (“H”). The Petition for divorce was filed on 1 August 2016.
2. There are 2 children of the family, a boy and a girl, respectively born in 2005 and 2008.
3. Two days before the filing of the Petition, that is, on 29 July 2016, parties with legal representation signed 2 Consent Summonses, one of which related to ancillary reliefs and the other related to children matters. Both Consent Summonses were filed with the Court on the same day when the Petition for divorce was issued.
4. On 20 September 2016, Her Honour Judge Melloy granted the Decree Nisi and at the same time granted an order in terms of the 2 Consent Summonses.
5. Decree Absolute was granted on 15 November 2017.
Sequence of applications and the outcome
6. On 14 October 2016, H issued a Summons seeking leave to appeal against the Decree Nisi and the 2 Consent Orders (i.e. “Children’s Consent Order” and “AR Consent Order”).
7. On 24 April 2017, Her Honour Judge Melloy dismissed H’s application for leave to appeal.
8. On 5 May 2017, H issued a Summons (under HCMP No.1052 of 2017) seeking leave to appeal against the Decree Nisi and the AR Consent Order from the Court of Appeal.
9. On 18 August 2017 and 14 September 2017, the Court of Appeal refused H’s application for leave to appeal.
10. On 20 October 2017, H issued a Writ of Summons (under HCA No. 2431 of 2017) seeking to set aside the AR Consent Order.
11. On 15 November 2017, Decree Absolute was granted.
12. On 18 January 2019, H issued a Summons seeking transfer of these proceedings to the Court of First Instance (“H’s transfer application”). This application was heard by Her Honour Judge Melloy on 25 March 2019 who reserved her Judgment.
13. On 3 June 2019, Her Honour Judge Melloy handed down her Judgment on H’s transfer application. The learned Judge decided that H’s transfer application be adjourned pending determination of H’s application filed in the High Court under HCA No. 2431 of 2017 for setting aside the AR Consent Order.
14. On 8 January 2021, Madam Justice Au Yeung handed down her Judgment under HCA No. 2431 of 2017 for the matter be remitted back to the Family Court.
15. On 16 June 2021, H issued a Summons in the Family Court seeking leave to adduce Expert Evidence.
16. On 30 November 2021, I handed down my written decision (“2021 Decision”) dismissing H’s application to adduce Expert Evidence.
17. On 10 December 2021, H issued a Summons seeking leave to appeal the “2021 Decision”.
18. On 6 January 2022, H issued the present Summons seeking to recuse me from these proceedings and for a transfer of the trial (which by that time was scheduled to commence in April 2022) to be heard before another Judge. There was also an application for a stay of proceedings pending the transfer to another judge (“Recusal Application”).
19. On 21 February 2022, I directed that H’s “Recusal Application” be dealt with on paper.
20. On 22 March 2022, I dismissed H’s application for leave to appeal the “2021 Decision”.
21. On 20 July 2022, the Court of Appeal (under CACV No.200 of 2022) granted H leave to appeal and set aside the “2021 Decision” (“CA Decision”).
H’s Recusal Application
22. H’s Recusal Application was grounded upon me having apparently prejudged the issues at trial at paragraphs 45, 47 and 58 to 60 of my full reasons handed down on 30 November 2021 for the “2021 Decision”.
23. As the “2021 Decision” was decided by way of paper disposal, it was therefore pertinent for me to recite below those paragraphs of my full reasons which H is now claiming that I have prejudged the issues at trial. Those paragraphs are :-
“45 In my decision, whether W had or would have developed a relationship with T at the time of the 2 Consent Summonses, objectively considered (emphasis added), does not pass the “materiality” test. It is not for H or his legal advisers to decide on materiality. That said, W could not be criticized for not disclosing her relationship or “would-be” relationship with T even if that relationship did exist at the time. 47. It is my decision that H had failed the “materiality” test on the
alleged non-disclosure of W’s relationship with T and W’s planned relocation with the 2 children.58. I noted that it is H’s case that the difference in monetary sum under the AR Consent Order compared with the monetary sum under the PNA is in the region of US$12 million which, allegedly, W should not be entitled and that this is a substantial sum of money. However, I am not convinced that difference in monetary sum should take precedence over the objectives under the CJR when considering when or not to grant expert evidence directions. 59. Broadly speaking, which should not be taken as any indication of this Court, difference in monetary sum has no place to fit in even at the substantive trial of a setting aside application, let alone that the present application is just an application for expert evidence directions. For otherwise, litigants who have settled their claims even with the benefit of full legal advice but somehow, with hindsight or second thought, considered the settlement was a “bad bargain” would find it too easy to overturn or set aside the settlement by claiming that there would be a big difference in monetary sum had the matter not been settled. 60. In the absence of one or more of the commonly accepted vitiating factors such as fraud, duress, illegality or misrepresentation being proved, parties should pay heed to the sanctity of contract and be held to their terms of settlement. Once the terms of settlement had been approved by the Court and embodied in the form of a court order, the contractual effect of the settlement would be superadded the command of the Court with coercion for compliance the more so obligatory. ”
The test for apparent bias
24. Applications for recusal could either be brought under actual bias or apparent bias. Given that H’s Recusal Application premised upon words written in a Judgment rather than words spoken during a hearing that had led him to believe that I was “prejudging issues at trial” in my “2021 Decision”, I would approach his claim that I should recuse myself under the ambit of apparent bias.
25. On the topic of apparent bias, in the cardinal and often cited case of Deacons v White & Case Ltd Liability Partnership & Ors [2004] 1 HKLRD 291 where the Appeal Committee of the Court of Final Appeal formulated the test applicable in England and Wales said :-
“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.”
26. In the later case of Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd & Anor[2014]17 HKCFAR 281 (Date of Decision : 13 May 2014) where it was said :-
“38. Judges must be wary of unjustified applications for their recusal motivated by tactical or forum-shopping considerations. By its very nature, it is generally in quite exceptional cases that recusal is called for. As Kwan JA noted, Judges can generally be expected to exercise proper judicial standards even after they have found it necessary to criticise wayward legal representatives. Judges should accordingly feel confident of appellate support if they continue with the case where there are no reasonable grounds for apprehending a risk of bias. On the other hand, if there is a real possibility that a risk of bias might objectively be apprehended, this should be recognized and they should prudently arrange for a colleague take over the proceedings. To press on with hearing the matter in such cases poses a risk of costs being thrown away if, on appeal, it is held (as in the present case) that the judge should not have continued to hear the case. Even if there is a suspicion that forum shopping motivates an application, the fact and appearance of judicial impartiality must have priority and the prudent course should be followed where a real risk of apprehended bias exists.”
27. In the same case of Falcon [2014] 3 HKLRD 375, where the Court of Appeal (Date of Judgment : 10 September 2013) elaborated the test for apparent bias and said :-
“51. As the Constitutional Court of South Africa had observed in President of the Republic of South Africa v South Africa Rugby Football Union, 1999 (4) S.A. 147 at 177, the question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not brought or will not bring an impartial mind to bear on the adjudication of the case, that is, a mind open to persuasion by the evidence and the submissions of counsel. (Emphasis added) 52. Regarding the notional “fair-minded observer”, this court in Chau Siu Woon at paras 13 and 42 had adopted and applied the following dicta: ‘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.” (Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 at 2418, per Lord Hope of Craighead) “Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. 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. 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. 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. 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. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.” (Johnson v Johnson (2000) 201 CLR 488, 508 to 509, para 53, per Kirby J). 53 ..... 54 ..... 55. Lastly, it is incumbent on the party seeking recusal to articulate the relevant reasoning by which the fair-minded observer would attribute a level of prejudgment justifying recusal. There must be an articulation of the logical connection between the conduct giving rise to the apprehension of bias and the possibility of departure from impartial decision-making(Barakat v Goritsas (No 2) [2012] NSWCA 36 at paras 9 to 12).”
28. In the later case of Komal Patel v Chris Au & Ors [2016] 1 HKLRD 328 (Date of Judgment : 10 November 2015), where Zervos J citing Deacons v White & Case (supra) said :-
“8. The application in the present case is based on apparent bias. Where a recusal application is made on the grounds of apparent bias, the test to be applied is one of a “reasonable apprehension of bias”. The test has been expressed by the Appeal Committee of the Court of Final Appeal 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 that the tribunal was biased.” 9. The reasonable apprehension of bias test underwent some adjustment upon concern that the “reasonable likelihood” and “real danger” tests in R v Gough [1993] AC 646 which tended to emphasize the court’s view of the facts and to place inadequate emphasis on the public perception of the irregular incident. Lord Hope of Craighead in Porter v Magill [2002] 2 AC 357 articulated the test in the following way which emphasizes the need to consider the relevant established facts. He said at 494H: “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” 10. Kwan JA in Falcon Private Bank Ltd v Barry Bernard Eduardo Charles Ltd [2014] 3 HKLRD 375, at paragraph 51, articulated the test in terms of “.... whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge had not brought or will not bring an impartial mind to bear on the adjudication of the case, that is, a mind open to persuasion by the evidence and the submissions of counsel.....” 11. The test looks as bias from the point of view of a fair-minded and well informed observer. The courts have provided guidance on how the fair-minded and informed observer should be conceived and it has been best explained by Lord Hope of Craighead in Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 where he said : “2. 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. The 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. 3. Then there is the attribute that the observer is ‘informed’. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she has read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.”
The CACV Decision
29. The CACV Decision was handed down on 20 July 2022 after parties have deposed to their respective affidavit evidence, namely, H’s 18th Affidavit in support, W’s 11th Affidavit in opposition and H’s 19th Affidavit in reply, and their Counsel’s Skeleton Submissions in support and in reply filed in respect of the present Recusal Application taken out by H. That said, neither party would have the chance to make further submissions in light of the CACV Decision. As a matter of fact, neither party had ever requested for leave to make further submissions after the CACV Decision was handed down.
30. My “2021 Decision” was set aside by the Court of Appeal where Hon Chow J gave the judgment of the Court. At paragraph 33 of the CACV Decision, Hon Chow J sets out 4 aspects which I had erred in law in my “2021 Decision”. I do not intend to repeat those 4 aspects at any length in this Decision. Suffice it is to say, with the benefit of the full reasons and guidance from the appellate court, all the 4 aspects of error of law had now been fully noted.
31. The hearing before the Court of Appeal took place on 7 June 2022 which was around 5 months after H took out the Recusal Application. On 7 June 2022, both parties had already been notified that H’s Recusal Application would be dealt with by paper disposal. Shortly put, on 7 June 2022, this Judgment on H’s Recusal Application was still pending.
32. From reading the CACV Decision in its full context, nowhere was there any reference to H’s complaint as per his Recusal Application that I had “apparently prejudging the issues at trial” in my “2021 Decision”. To be fair to H, it was unclear whether H had brought to the attention of the Court of Appeal that he had filed his Recusal Application and was awaiting my Judgment. From reading the full CACV Decision where it was said at paragraph 25 that 10 out of the 11 grounds of appeal were materially the same as those put before me while the last ground was a new one. To be fair to H, I do not know whether the new 11th ground of appeal referred to or related with his Recusal Application brought before me at present.
33. Although it is trite that appeal tackles upon errors on point of law or legal principles and not upon finding of facts or complaint arising from bias, I noted that H’s Recusal Application was mounted against me for “prejudging issues at trial” which, if substantiated, could be an error of law susceptible to challenge on appeal.
34. Given the same legal team of lawyers (including Senior Counsel and Junior Counsel) were engaged by H at the Court of Appeal, I do not believe H’s Recusal Application (on the ground of “prejudgment” so alleged) even though my Judgment was still pending could not be brought before the Court of Appeal or would have left out of sight by H’s legal team.
35. Whilst I accept that it was open for H, upon legal advice, to choose to pursue whatever ground(s) of appeal and not necessarily have to mount upon or explore all possible grounds of appeal, the absence of any comment or observation from the appellate court in the CACV Decision that I had ever erred in “prejudging the issues at trial” does not support H’s Recusal Application.
36. The appellate court clearly said the error(s) of law was purely an incorrect application of the law and legal principles. The appellate court found that I have mis-apprehended the “materiality issue” but not “prejudging the issues at trial”.
37. All in all, findings of the appellate court on successful appeal on error on points of law or legal principles, unless otherwise expressly said so by the appellate court, should not be taken as a ground for seeking recusal.
38. Having said, I decided that the CACV Decision does not assist H’s case that I had “prejudged the issues at trial”.
The “2021 Decision”
39. With the benefit of the CACV Decision, I will now deal with each of the paragraphs relied upon by H for claiming that I had “apparently prejudging the issues at trial” in his Recusal Application.
Paragraphs 45 and 47
40. These 2 paragraphs touched upon my error of law when deciding the “materiality issue” which the appellate court had rightly pointed out. At paragraph 33(3)(a) of the CACV Decision, it was said :-
“(3)(a) In respect of H’s complaint concerning whether W had developed relationship with any third party, the Judge considers that it is not for H or his legal advisers to decide on materiality. That may be so, but is not itself a sufficient reason for holding that the alleged misrepresentation or non-disclosure in respect of W’s relationship with T is not material. The Judge further says that W could not be criticized for not disclosing her relationship or “would-be” relationship with T even if that relationship did exist at the time. This is, we consider, an issue to be determined at the trial, instead of in an interlocutor application for leave to adduce expert evidence.”
41. Paragraphs 45 and 47 must be read in context of the full decision. At paragraph 22 of my “2021 Decision”, I said :-
“22. ...........At ancillary relief trial (emphasis added), it might be relevant to consider French Law. However, at present (emphasis added), it was at the stage of setting aside the AR Consent Order in 2016. If it was not set aside, the AR Consent Order holds good and there can be no revisiting of ancillary reliefs. It is only when the AR Consent Order was set aside, then it might become relevant during the course of “re-opened” financial ancillary relief to then consider French Law by way of expert evidence.”
42. Clearly, my views expressed at paragraph 22 referred to 2 different timing; namely, “At ancillary relief trial” and “However, at present” when I erred in considering the “materiality issue”. Those words “In my decision” at the beginning of both paragraphs 45 and 47 must be read in that context. They should not be mis-read or taken to suggest that I had already “pre-judged the issues at trial” while I was only expressing my view or opinion for 2 different timing.
43. At paragraph 9 of H’s Counsel’s Written Submissions dated 7 March 2022, it was further said :-
“That ambit of the Judge’s statements (that “even if that relationship did exist at the time..... H had failed the “materiality” test”) far exceed that of mere preliminary indications. The Judge has unequivocally expressed a view on the crucial question of materiality against R no less than 3 separate times in his Judgment, without and prior to a proper consideration of the trial evidence. An objective, fair-minded observer would consider that there was an established level of pre-judgment on a key issue before trial. The same gives rise to the apprehension of bias in that the Judge has already decided, or heavily indicated his views on, issues to be resolved at trial and the ultimate decision will not be impartial or properly arrived at.”
44. Such submissions came from paragraph 45 of my “2021 Decision” and likewise must be read in context of the full decision. At paragraph 42 of my “2021 Decision” where I said :-
“42. .......Clearly this is a question of fact which could only be decided by the Court after trial when parties’ evidence and credentials have been fully tested (emphasis added).......”
45. The need for trial to determine parties’ evidence and credentials was clearly said in paragraph 42. There is no room for H to singularly pick upon paragraph 45 to suggest that I had “prejudged issues at trial”.
46. Moreover, those words “even if ..........” extracted from paragraph 45 of my “2021 Decision” and highlighted in paragraph 9 in H’s Counsel Written Submissions had been canvassed by the appellate court at paragraph 33(3)(a) of the CACV Decision.
47. Finally, both paragraphs 45 and 47 are only part of those other paragraphs under the sub-heading of “Discussion” in my “2021 Decision” forming no part of my conclusion on the issues to be decided at trial.
Paragraphs 58 to 60
48. Understandably, there was no specific reference to these paragraphs in the CACV Decision for the obvious reason that nothing in there touches upon any points of law or legal principles.
49. At paragraph 8 of H’s Counsel’s Written Submissions dated 7 March 2022, it was said :-
“At §§58-60, the Judge states “........the difference in monetary sum has no place to fit in even at the substantive trial of a setting aside application”, thereby dismissing outright and on a summary basis of R’s submissions, despite this being a key factor in assessing materiality. The effect of the PNA is a key issue for Trial; the difference of US$12m in R’s favour, and which excludes R’s entrepreneurial business assets (Jxxx Hxxxx), is a primary basis for the set aside application.”
50. Paragraph 58 referred to H’s case of the US$12m monetary difference between the AR Consent Order and under the PNA had he been able to set aside the AR Consent Order. From any perspective, this is only an expression of views or opinion upon a hypothetical scenario and not an “outright and summary dismissal of R’s submissions”.
51. Paragraph 59 is my further views or opinion upon the same topic of difference in monetary sum having no place to fit in at the trial proper of the setting aside application. My views or opinion expressed over a “bad-bargain” scenario could not be mis-read as “outright and summary dismissal of R’s submissions”.
52. Paragraph 60 is nothing except stating the obvious. It refers to those commonly accepted vitiating factors that need to be proved to overturn a settlement reached by consent. It also contains my views or opinion that whenever a settlement was accepted and endorsed by the court, it would be reinforced with coercive force. Such expression could hardly be taken as “outright and summary dismissal of R’s submissions”
H’s 19th Affidavit dated 18/3/2022
53. This is H’s Affidavit in Reply to W’s 11th Affidavit in Opposition to his Recusal Application.
54. Without specifically said so or in anyway referred to in the Summons dated 6 January 2022 to recuse me, it appeared that H was also complaining my case management directions granted in respect of his Leave to Appeal and Recusal Application.
55. H produced as Exhibits “DD19-1” and “DD19-3” a series of correspondence exchanged between the parties’ lawyers which also include the Court’s letter(s) in response. Exhibit “DD19-2” is the attendance note of H’s lawyers taken for the hearing on 21 February 2022, which undisputedly, was the 15-minute first call-over hearing for H’s Recusal Application.
56. In a gist, at paragraph 10 of H’s 19th Affidavit he was complaining that :-
(a) I did not give my Judgment on his Leave to Appeal the “2021 Decision” prior to the hearing on 21 February 2022 but, nonetheless, I granted directions on his Recusal Application;
(b) in so doing, this contradicted what I had said in the letter from this Court dated 4 February 2022;
(c) had the timeline for filing of affidavit evidence proposed (as per H’s lawyers’ letter dated 12 January 2022) been accepted by me, all the affidavit evidence would have been filed prior to the hearing on 21 February 2022 which would then enable me to arrange a ½ day oral hearing for argument at the directions hearing on 21 February 2022; and such oral hearing was now denied;
(d) the directions granted by me on 21 February 2022 had brought the timeline for filing of evidence to 14 March 2022;
(e) at the hearing on 21 February 2022, I had clearly determined that the trial would go ahead on the original trial dates in April 2022;
(f) all the above led to a clear indication that I had prejudged both his Leave to Appeal and the Recusal Application, both of which if granted, would result in the trial not proceeding on the original dates and not proceeding before me respectively;
and
(g) his Counsel had notified me that a stay was included in the Recusal Application which I did not deal with.
57. At paragraph 11 of H’s 19th Affidavit, he complained that I had (both at the hearing on 21 February 2022 and thereafter by letter dated 23 February 2022) already decided that the trial originally scheduled to start on 6 April 2022 would proceed by VCF before determining his Leave to Appeal and Stay application and before determining the Recusal Application. H complained that I was not approaching the case with an open mind. My directions had ensured that there was delay in dealing with his Leave to Appeal; delay in granting the parties’ directions already agreed on 12 January 2022 until the hearing on 21 February 2022, and that such delay resulted in no oral hearing could be arrange, which is highly prejudicial to him.
58. In the same paragraph, H complained that I had already decided the issues at trial and was proceeding to decide the merits at trial against him by prejudicing rather than dealing with each procedural application on the merits and in accordance with rules of procedure and his obvious desirability of an oral hearing for his Recusal Application.
59. At paragraph 13 of H’s 19th Affidavit, he complained that I have already decided on materiality issue, proceeded to deal with his Leave to Appeal and Recusal Application on the basis that I had already decided both of those applications against him which was clear from the directions that I have granted.
The Court’s Views on H’s complaints
60. First and foremost, I noted that at paragraph 11 (line 2) of H’s 19th Affidavit and further at paragraph 13 (line 12) where he claimed twice (emphasis added) that I had “overlooked” delivering my Judgment on his Leave to Appeal Application. Moreover, it was further asserted at paragraph 10 (line 7) in his Counsel’s Written Submissions dated 7 March 2022 that I “overlooked” his Leave to Appeal Application.
61. At no time had I decided or indicated the time or any estimated time frame for handing down my Judgment on H’s Leave to Appeal. Given the limited resources and widely accepted heavy workload of the Family Court, also taking into account the need to ensure court resources are fairly and evenly distributed amongst other court users (as per Order 1A rule 1 of the Rules of the High Court, Cap.4A), it is not uncommon for reserved Judgment to be handed down, say, a couple of months after it was reserved. The Courts have always strived to deliver their Judgment soonest they can (within reasonable time frame) rather than later in every single case concluded. From time to time, however, there are other cases intervening which, by their very nature and reliefs sought, are of utmost urgency and which deserve top priority over those other cases where “urgency” was no more than the parties’ wishes and desires.
62. At paragraph 10 of H’s 19th Affidavit (line 11) where it was said :-
“10...............In response to the agreed directions for the Recusal Application, the Court issued a response letter on 17th January 2022 to agreed directions that it would not make any direction at all until issuing a judgment on Leave to Appeal. It was therefore understood the Leave to Appeal judgment would be issued before the directions hearing on 21st February 2022. It was also understood that judgment on the Leave to Appeal would impact this Recusal Application.”
63. To complete the picture, this Court wrote to both parties on 17 January 2022 referring them to their letters exchanged (which had been copied to this Court) and said as follows :-
“1. The above 2 letters refer. 2. Respondent’s Recusal application was grounded upon “apparently prejudged issues at Trial at various paragraphs of the Judgment dated 30/11/2021 (Judgment)” in respect of which leave to appeal the Judgment has now been sought by the Respondent.
3. As the Decision on Respondent’s leave to appeal has yet to be made, request for disposal of the Recusal Application at the hearing on 21/2/2022 is not correct. 4. Given the ground for the Recusal application rested upon the Judgment of which leave to appeal has been sought and Decision pending, directions for exchange of affirmations and legal submissions for the Recusal application at this stage is pre-mature.”
64. At the stage of the Court’s letter of 17 January 2022, it was pre-mature for granting directions on the Recusal Application given that the Judgment on Leave to Appeal was pending. However, as time goes by until 21 February 2022, noting that the trial would start on 6 April 2022 (around 6 weeks later) and that the Judgment on Leave to Appeal was not forthcoming, disposal of the Recusal Application became imminent and called for urgent directions to be given by me there and then.
65. In Exhibit “DD19-2” (at page 2 near the bottom) where it was recorded (“MNB” stands for H’s Counsel, “Own” stands for me and “LTA” stands for Leave to Appeal) :-
“MNB : I have to say the issue here is the LTA - it is outstanding and so is there any indication when that decision will be forthcoming ? Own : I can’t say for sure. Now unfortunately I have to do it, I know the timing. It’s not easy to manage because you’re suggesting first half day to deal with recusal.”
66. As can be seen, even at the hearing on 21 February 2022, it was not yet certain when the Judgment on H’s Leave to Appeal (LTA) would be handed down when H’s Counsel made the enquiry. It was also for this reason that I saw fit to grant directions for the Recusal Application to move along whilst the Judgment for H’s Leave to Appeal was still pending. This was part of the proactive case management decisions to cater for different stages in on-going proceedings as and when the circumstances that had developed so required. All my case management directions were granted on good sense and intention to cater for the circumstances of the case before me.
67. Without the express confirmation from me as to the time of delivery of my Judgment on the H’s Leave to Appeal, even during the hearing on 21 February 2022 as can be seen in the extract from Exhibit “DD19-2” above, H’s comment or perception that I have “overlooked” the Judgment on his Leave to Appeal is incorrect. It was clearly misunderstanding rather than any “understanding” as he had said so in paragraph 10 of his 19th Affidavit.
68. Furthermore, as per Exhibit “DD19-2” produced by H in his 19th Affidavit, at no time had I ever said my Judgment on H’s Leave to Appeal was “overlooked”. The word “overlook” never appeared anywhere within the Note of Hearing. As per the Note of Hearing, what I said was: “Now unfortunately I have to do it”. This is plainly a simple question of whether to do or not to do it; and also when to do it. This should not be mis-read to say that I have “overlooked” the Judgment.
69. Given the Covid-19 pandemic that had ensued, Court’s limited capacity to hear cases and dispose of applications within usual time frame and expeditiously had not been an easy task, not to also mention the disruption and delay caused by the General Adjournment Period (“GAP”) due to public health concern. What happened then was that the announcement of the Judiciary on 4 March 2022 for a GAP (between 7 March 2022 and 11 April 2022) which caused the trial in April 2022 had to be vacated and re-fixed.
70. Judgment on H’s Leave to Appeal was handed down on 22 March 2022 during the GAP (between 7 March 2022 and 11 April 2022) notwithstanding that by that time the original trial dates in April 2022 had already been vacated.
71. For all the above reasons, H’s complaint over my case management directions were granted to delay dealing with his Leave to Appeal application; to delay granting directions even though had been agreed on 12 January 2022 until 21 February 2022 thus resulting in no oral hearing could be arranged are unfounded and thereby rejected. H’s other complaint that I have been prejudicing rather than dealing with his applications on merits and with an open mind are mere speculation far from substantiation.
72. As per H’s lawyers letter dated 12 January 2022, it was proposed that a half day oral hearing (in consultation with his Senior Counsel’s diary) be arranged and be heard via VCF for his Recusal Application before the first call over hearing already scheduled for 21 February 2022. Noting the agreed timeline between the parties to file and exchange their affidavit evidence, and that legal submissions on or before 18 February 2022 (emphasis added), it was totally unrealistic and impossible to arrange a half day oral argument on or before 21 February 2022 (that is, 4 days later). The time allotted for the hearing on 21 February 2022 was only a 15-minute hearing which H‘s lawyers had specifically asked for in his Summons for recusal dated 6 January 2022 (emphasis added).
73. Moreover, 18 February 2022 is a Friday and 21 February 2022 is a Monday. Family law practitioners must be well aware that it has been the listing practice of the Family Courts to assign Monday(s) for hearing short applications of 15-minutes duration which mostly are first call over hearings. As a matter of fact, there were already other cases listed for 21 February 2022 several months ago.
74. To conclude on this topic, H’s intended or desired scheduling of an oral hearing for ½ day would no doubt expedite his case but this would be to the prejudice of other court users who may have applications which warrant an urgent hearing. Had there been any genuine need or urgency to list an early date for hearing a Summons, the proper course is for that party to first write to the Court by letter (with full reasons included) prior to filing the Summons (emphasis added) or to wait until the first 15-minute call over hearing and then seek an adjournment for a longer hearing duration at some later date.
75. To list a 15-minute hearing Summons and then, by way of parties’ consensus, to seek those directions which would normally be granted at the forthcoming 15-minute hearing would not be highly praised or encouraged unless (emphasis added), by so doing, the forthcoming 15-minute hearing could be vacated for saving costs and court resources. However, this was not what had happened in this case. Neither party had ever requested to vacate the hearing on 21 February 2022. To the contrary, H asked for another ½ day hearing be “squeezed” into the court’s already heavily loaded diary for oral argument before 21 February 2022. Not only this was impractical and impossible, to a certain extent, this would be “hi-jacking” the court’s limited resources without regard to other court users. Parties’ manipulative fixing of hearings would be deplored without exceptional urgency or good reasons being accepted by the Court.
Not to deal with H’s Stay application
76. H’s other complaint at paragraph 11 of his 19th Affidavit that I did not deal with his application for stay at the call over hearing. This was incorrect.
77. As can be seen at the end of the Note of Hearing marked as Exhibit “DD19-2” where I said :-
“Own : Summons for LTA and stay of proceedings pending
LTA...... (emphasis added)”
78. Clearly H’s stay application was dealt with and the decision arrived at the call over hearing was to adjourn it. Procedure wise, it was for H’s lawyers to seek restoration of the stay application after the CACV Decision was handed down. However, so far no such application had ever been made.
79. Upon careful consideration of the above reasons and analysis, I decided that none of H’s complaint contained in his 19th Affidavit carry any weight for me to recuse myself.
An objective, fair-minded and well informed observer
80. The whole theme of H’s recusal application was premised upon what I have written down in those 5 paragraphs in my “2021 Decision” which he claimed that I have “prejudged the issues at trial”.
81. Hence, the test of “reasonable apprehension of bias” must be applied in the way that any “objective, fair-minded and well informed reader (emphasis added) of my “2021 Decision” would come to the conclusion that there was a real possibility that I had not brought or will not bring an impartial mind to bear on the adjudication of the case, that is, a mind open to persuasion by the evidence and the submissions of counsel[1] (emphasis added).
82. Plainly, no objective bystander having a fair-minded with full knowledge of all the circumstances and facts, by just reading (emphasis added) one or all of those 5 paragraphs in my “2021 Decision”, would have come to the conclusion that I would not be persuaded by evidence and submissions of counsel at the upcoming trial proper. I fail to see how this could be the case.
83. In my view, more likely than not that it was H’s subjective views and speculation that dictated his request for me to recuse myself. There was not any single strand of evidence showing that I would not be bringing an impartial mind to adjudicate those issues, including the “materiality issue” now found by the appellate court, or that I had already adjudged any of the issues at trial.
84. Given careful consideration, I am not convinced that an objective, fair-minded and well informed reader, having considered all the facts and circumstances, and after reading my “2021 Decision” would conclude that I have “apparently adjudged issues at trial” and should therefore recuse myself.
85. I am also not convinced that by refusing to recuse myself, H would be denied of a fair trial under due process of the law or suffer any prejudice, disadvantage or injustice at the upcoming trial.
86. I am also not convinced that there was any degree of bias, actual or apparent, that call for recusing myself from these proceedings and transfer the upcoming trial to another judge.
Conclusion
87. For all the above reasons, I conclude that it is not a case that an objective, fair-minded and well informed reader would say that there is a real possibility that I would not bring an open and impartial mind to these proceedings; or that I have already “prejudged the issues at trial” so asserted by H.
88. I decided that H’s Recusal Application must fail and his Summons dated 6 January 2022 be dismissed.
89. Since I have dismissed H’s Recusal Application, the question of transferring the upcoming trial to another judge does not arise.
Costs
90. Given the outcome, I decided it is fair and reasonable that the normal costs to follow the event shall apply.
Order
91. I now make the following Orders :-
(a) H’s Summons dated 6 January 2022 be dismissed; and
(b) H do pay to W the costs of and occasioned by this application, including all costs reserved (if any), to be taxed if not agreed.
92. I also grant Certificate for 2 Counsel.
93. This is a costs order nisi which would become absolute if no application to vary the same is made within 14 days of this Decision.
94. Last but not least, I wish to thank Senior Counsel and Junior Counsel, and the respective law firms for their valuable assistance to this Court.
| (George Own) | |
| District Judge |
Mr. Richard Todd K.C. leading Mr. Jeremy S.K. Chan instructed by Messrs. Rita Ku & Ser, Solicitors for the Petitioner
Mr. John Scott, S.C. JP leading Miss Madeleine Booth, instructed by Messrs. Oldham, Li & Nie, Solicitors for the Respondent