WSSA v. SYH

FCMC 4633 / 2020

[2023] HKFC 217

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4633 OF 2020

------------------------

------------------------

-------------------------

D E C I S I O N
(Leave to Appeal)

-------------------------

The Application

1.  The Petitioner is the wife.  The Respondent is the husband.  I will refer to them conveniently as “W” and “H” in this Decision.

2.  On 30/6/2023 this Court handed down its Decision dismissing H’s application by Summons dated 30/12/2021 (filed on 3/1/2022) seeking an Order that I shall be recused from participation in these proceedings including any further hearings (“Recusal Decision”).

3.  On 14/7/2023 H issued a Summons seeking leave to appeal the Recusal Decision.  It was common ground that the Recusal Decision was reached as an exercise of discretion and not any factual adjudication.

4.  W opposed H’s application for leave to appeal.  W filed her written submissions in opposition.

H’s Draft Grounds of Appeal

5.  In H’s draft Notice of Appeal, there are 2 main grounds on which H relied upon, namely :-

“Ground 1 : Misapplied the Proper Test of the Reasonable Apprehension of Bias and/or Failing to Review as the Fair-Minded Observer;

Ground 2 : Failed to Take into Account Material and Relevant Considerations.

6.  Within Ground 1, H referred to 7 different matters (from (a) to (g)) that had happened and identified each of them by reference to the paragraph numbers in the Recusal Decision.  H submitted that they would arouse reasonable apprehension of bias and; particularly that of the Fair-Minded Observer (“FMO”).  I would go through each of them in their order of sequence by reference to H’s sub-grounds (a) to (g) under Ground 1.

7.  Further, it was said that in making those decisions or uttering criticisms against H as set out in sub-grounds 1(a) to (g), I was wrong to ignore the fact that the FMO would be informed the pertinent background facts that :-

-  the case was only at initial stage with mutual allegation of violence on affidavit evidence which had yet to be found by the court;

-  H seriously allegation that W was an unfit carer;

-  there was expert evidence on removal of the son from H and W and that access be supervised for both H and W;

-  I acknowledged that the ouster order made against H was said not because H was the “bad guy” but just to avoid conflict;

-  prior to the ouster order, H and W had equal access;

-  everyone is entitled to make applications to the court and has the right to be heard except legitimately barred from doing so.

(collectively called the “Background Facts”).

The provisions on granting leave to appeal

8.  The jurisdiction to grant leave to appeal rests with section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

9.  The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011) per Fok JA (as he then was) at paragraphs 8 and 9 of the Judgment.

Appeal on exercise of discretion

10.  It is trite that an appellate court may only interfere with the exercise of the judge’s discretion in the court below in limited circumstances, in accordance with the well-established principles in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 at 220B to E (see SPH v SA at paragraph 65).

11.  Further, the appellate court would not interfere the judge’s discretion in the court below merely because it would have reached a different conclusion had it been hearing the application at first instance.  It can only interfere in three type of cases : (1) where the judge has misdirected himself with regard to the principles in accordance with which his discretion had to be exercised; (2) where the judge, in exercising his discretion, has taken into account matters which he ought not to have done; or (3) where his decision was plainly wrong. (see Bright Shipping Ltd v Changhong Group (HK) Ltd (No.2) per Kwan J, VP at paragraph 5)[1].

12.  In the Court of Appeal decision in the case of Wong Kar Gee Mimi v Severn Villa Ltd[2] where Kwan JA, having cited the general principles on granting leave to appeal, further said :-

“30.  Even if the threshold test of reasonable prospect of success is satisfied, the court still retains a discretion whether to grant leave, although the fact there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion. The court may refuse leave to appeal in the interests of proceduraleconomy and proportionality (emphasis added).

31.  It must also be borne in mind that the orders made by the Judge in the intended appeal are case management decisions in the exercise of the discretion of the Trial Judge.  Case management decisions are only subject to appeal in rare circumstances. The appellant faces a “very high hurdle” and must show that the Judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”, or if the Judge “erred in principle or the order was irrational having regard to the issues that had to be resolved”.  It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the Judge has misunderstood the law or the evidence or the exercise of discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.”

Discussion

13.  Guided by the above principles, I will now consider W’s draft grounds of appeal in sequence.

Sub-ground 1(a)

14.  H contended that at paragraphs 42 to 44 of the Recusal Decision, I had suggested a “practice” that an interim non-molestation order should be made against a party who refused to provide an undertaking to the same effect. This was not an insight possessed by the FMO nor could I argue that there was no bias. Actually, this was just self-justification.

15.  It could be seen clearly by any FMO that this Court was simply stating a normal and common pattern of handling non-molestation order applications before it was finally decided after the substantive trial one way or the other.  Reciting below is paragraph 43 of the RecusalDecision, those words which are now bolded are self-explanatory.  With respect, it was utterly wrong to assert that a “practice” was thereby suggested by me as a ground of appeal. 

“43.  In most cases, a party against whom non-molestation order(s) or injunctive relief(s) are sought would normally agree to provideundertaking(s) similar or identical to the relief(s) sought against him or her for the interim period (emphasis added) pending substantive argument of the application(s).  This was done in order to avoid any interim order(s) being granted before the matter was fully argued.  There was no admission of any liability or prejudice of rights by offering the undertaking(s).”

16.  The further submission was that even if it was a practice “of the courtof the Judge”[3], this was not an insight possessed by the FMO.  With respect, such further submission was completely groundless for 2 reasons.  First, as just said above, there was never a “practice” of providing undertakings suggested by me.  Secondly, the use of the phrase “the court of the Judge” was a statement tailored made for H’s personal stigmatization against this Court.  Such submission, in my view, implicates or suggests that different courts with different presiding Judges administer justice differently.  Such submission, however, was not surprising when it comes from litigants who always with forum-shopping in mind.

17.  I find there was no reasonable prospect of success on appeal in respect of sub-ground 1(a).

Sub-ground 1(b)

18.  For sub-ground 1(b), the question was actually a three-fold one.  First, for the FMO, whether he or she was aware of the technical distinction between shared care and control on the one hand and week-on week-off access on the other hand ?  Secondly, whether the FMO had knowledge that H, whilst being subjected to an ouster order, would be disentitled to an equal access order ?  Thirdly, H’s week-on week-off proposal was dismissed by me by default (emphasis added) for not to be an access proposal suggested by H.  

19.  H submitted that my justification that his week-on week-off proposal was a shared care and control but not an access proposal at paragraph 62 of the RecusalDecision was plainly wrong.

20.  I have made it abundantly clear at paragraph 62 of the RecusalDecision that H had not come forward with any access proposal was arrived at from reading 52T to 53D of the official transcripts recording in Miss Yip, S.C.,’s submissions for H.  Suffice for me to say here was that H’s shared care and control proposal or his week-on week-off proposal rests with the provision of caring by H rather than the provision of access of H over the children whose interim care and control was granted to W on the same day of the interim ouster order, that is, on 29/7/2021.  This is more alarming when there was no protest of the interim ouster order by way of any stay of execution application or by way of an appeal.

21.  To suggest shared care and control or week-on week-off proposal was an access proposal, in my view, was wrong since “care and control” and “access” are two different perspectives which could not be intermingled.      

22.  It follows that the other submission of H that his week-on week-off proposal was dismissed by me by default (emphasis added) falls apart.  Further, the technical distinction between shared care and control and week-on week-off proposal, in the eyes of the FMO, was immaterial insofar as access proposal was concerned.

23.  Had there been any justifiable complaints over the so-called “extremity” of the order, be it the interim ouster order or the non-molestation order, it was a matter for appeal of the respective order(s) rather than making a personal statement to frame as a ground of appeal of the Recusal Decision.

24.  I find there was no reasonable prospect of success on appeal in respect of sub-ground 1(b).

Sub-ground 1(c)

25.  For sub-ground 1(c), H referred to the comments made in the Recusal Decision that H’s case lacked “utmost urgency and exceptionalcircumstances”; on “costseffectiveness and practicality”; on “bombarding”; on “fair distribution of the Court’s time for other users” etc.  H submitted that all these comments were unnecessary, personal and highly prejudicial which did not dispel the real possibility of bias to the FMO.

26.  H complained that my comment over his variation application lack of“utmosturgency and exceptional circumstances”was only raised in the Recusal Decision[4] but not prior illustrated that I was actually engaging in a self-justification exercise with reasoning not present (or alternatively, not known to the parties) at the time of the letter dated 18/8/2021.  My other comment of “costs effectiveness and practicality”[5] also was not raised prior.  H then formed the view that the more justifications I made, the more shows the unnecessity and prejudicial and biased nature of my comments as perceived by the FMO.

27.  There was a fundamental flaw in such submission.  H seems to suggest that I should “voice out” my observation or comments in advance of making those case management decisions that I have made which he was not satisfied with.  H was saying that I should/could have done so in the letter dated 18/8/2021 but I did not.

28.  In my decision, providing reason(s) for dismissing any recusal application always come after the case management decision that was made which had triggered the summons seeking recusal.  How could this be said to be making self-justification in the mind of any objective FMO ?  There are no conditions precedent to the exercise of any case management decisions.  Any party so affected and aggrieved by the case management decisions could challenge those case management decisions (emphasis added) on limited and narrow grounds by way of an appeal rather than appealing the Recusal Decision.     

29.  I find there was no reasonable prospect of success on appeal in respect of sub-ground 1(c).

Sub-ground 1(d)

30.  For sub-ground 1(d), H referred to the Court’s communication with the Official Solicitor (“OS”) which ended up with vacating the 4-day trial originally scheduled for H’s variation of care and control application without H being heard or being able to make any representation in advance.  This had deprived H of due process/departed from the proper procedure.  The Court’s justification that no submission would have changed the result of adjourning the 4-day trial would be perceived by the FMO as clear deprivation of due process/proper procedure and hence prejudicial to H seeking to be heard.

31.  H also referred to this Court not giving the parties any opportunity to make representation if the Order vacating the 4-day trial was made under Order 1B r.2(4) of the Rules of the District Court, Cap.336H.  It was said that the Court did not observe r.2(5)(b).

32.  It must be remembered that the OS was appointed by the Court to represent the children in these proceedings.  There had never been any protest by H or W of such appointment.  The initial 4-day trial was scheduled for H’s variation of care and control application when OS’s input and participation at the trial and their Reports are clearly indispensable material evidence. 

33.  It must also be remembered that the date of the OS letter was 25/8/2021[6], which was only 13 days ahead of the scheduled 4-day trial to commence on 7/9/2021.  Given the imminence of the trial and the OS’s readiness for trial had yet to complete as per their letter, that there are various outstanding matters which need to be resolved, to vacate the scheduled 4-day trial was inevitable and the only viable option in the circumstances.  H’s contention of non-compliance with Order 1B r.2(5) is a red-herring for the simple fact that it was impossible for the parties to make representation within the 13-day period to avoid adjourning the 4-day trial.  At the expense of repetition, I said the following :-

“103.  I failed to see what input could the parties provide had they been informed of the OS’s letter and the OS’s concern even if they were invited to provide submissions. I could foresee possibly there would be a further attempt by either or both parties to push for another so-called “urgent” hearing within the 13-day period between 26/8/2021 to 6/9/2021 under the disguise of tackling OS’s concern which apparently for no practical purposes other than increasing legal costs and “hijacking” the Court’s limited resources to the prejudice of other court users.  This was not a question of fairness to the parties or affording them the right to make submissions.  How could the parties manipulate the OS’s concern by providing their submissions ?”

34.  It turned out that the first day of the original 4-day trial on 7/9/2021 was made use of for hearing another Summons taken out by H for variation of interim access and to deal with other related matters.  It ended up with most of the morning (10:33 a.m. to 1:03 p.m.) and afternoon (4:35 p.m. to 5:46 p.m.) of 7/9/2021 was spent for H’s Summons and various directions were granted.   

35.  I stand by my decision[7] that no objective by-stander or FMO, apprised of the above facts, would conclude that there was any apparent bias or risk of bias against H for vacating the original 4-day trial commencing 7/9/2021.

36.  I find there was no reasonable prospect of success on appeal in respect of sub-ground 1(d).

Sub-ground 1(e)

37.  For sub-ground 1(e), H first referred to what I said when deciding H’s Summons for variation of interim access (using the first day of initial 4-day trial on 7/9/2021) that I had suggested possible misdeeds by H.  The FMO would perceive this as a real possibility of bias.  H disjunctively quoted what I said :-

“……..would the father now want something to happen during access without being notified or recorded by any third party witness, say, Rent- A-Mum ?”[8]

38.  H then referred to what I said later in the Recusal Decision[9] about my observation and expression of an “oddity” in that H once accepted the presence of Rent-A-Mum in the past but now sought to replace the Rent-A-Mum with his newly hired domestic helper.   

39.  Finally, H referred to my suggestion that having another representative from Rent-A-Mum would avoid any unnecessary allegation of “snooping” by H or W through the domestic helper as another representative to substitute Ms. S when she was unavailable. H said the suggestion of avoiding “snooping” was an afterthought by me, also my skewed attempt to justify the order on additional Rent-A-Mum.  H said that no sound justification was provided by me for the personal and uncalled for comments over H.

40.  It was well accepted by parties’ legal teams including Senior Counsel that the hearing on 7/9/2021 lasted for almost whole day (from 10:55 a.m. to 1:03 p.m. and then from 4:33 p.m. to 5:46 p.m.).  As can be seen from the official transcripts, there were lengthy dialogue and exchange of views between Senior Counsel on both sides and this Court which ended up with the orders and directions granted. 

41.  That said, it was pertinent to go through the entire dialogue and exchange of views, rather than cherry-picking phrases or sentences disjunctively to support H’s allegation of afterthought, bias and skewed attempt.

42.  H’s reference to my suggesting possible misdeeds[10] was extracted from one of the few paragraphs at 50R to 51J of the transcripts.  In fact, the statement cited was actually taken out of context.  The preceding part(s) of the paragraph containing the cited statement (repeated in bold below) was important which are repeated as follows :-

“Having said, without the presence of the Rent-A-Mum during access in the past, where would be the evidence to support the father’s own case that he is a suitable carer of the children ?  Why would the father now be so concerned with the presence of Rent-A-Mum and would ask for uplifting the supervision arrangement ?  Would the father now want something to happen during access without being notified or recorded by any third-party witness say, the Rent-A-Mum ?”

43.  Reading the cited statement in context, it was clearly a hypothetical question to the 2 other preceding questions in that same paragraph.  It should not be misconstrued to say the Court was forming any definitive view, suggesting or was biased to H.  Further, it must not be misconstrued to suggest that H was being insinuated to have something to hide.

44.  For the “oddity” observation and expression, it was made abundantly clear at paragraph 121 of the Recusal Decision that the entire paragraph cited under paragraph 42 above was a “self-serving remark” for the “oddity”.  Thus, there was no question of any alleged skewed attempt to justify the order made against H when I said there was an “oddity”.

45.  For the suggestion of avoiding “snooping” that I said in paragraph 124 of the Recusal Decision, H now submitted that it was never raised before I made the decision on supervised access by using another Rent-A-Mum when Ms. S was not available.  Thus, this was my afterthought seeking to justify my orders.

46.  The concern of “snooping” actually came from the submissions of Miss Yip, S.C., for H if one reads the 7/9/2021 transcripts of hearing at page 68B to 68E where she said :-

“Miss Yip :

….so far, she has been there, helping the parties.  Your Honour, why is that necessary ?  Why does the mother want to snoop ? why does the mother want to keep surveillance by sending her own helper ?  Why is that ?  I don’t see any reason at all.  The father has moved out.  The father is supposed, as your Honour has said, is supposed to enjoy quality time.  And we’re just talking about something which may not even happen, just in case.”

47.  Given the concern of “snooping” was thrown out by Miss Yip, S.C., for H, it was fair and reasonable for me to refer to H’s concern of “snooping” in my Recusal Decision. I failed to see how H could now turn around and complained that “snooping” was my afterthought, my skewed attempt to seek justification or I had been biased to H when it actually came out from his own legal team’s submission.

48.  I find there was no reasonable prospect of success on appeal in respect of sub-ground 1(e).

Sub-ground 1(f)

49.  For sub-ground 1(f), H submitted that a Grepe v Loam order was granted by me without initiating the necessary process by informing the parties and to give parties sufficient opportunities to make submissions.  Reference was made to his 17^th Affidavit paragraph 33 and W’s 15^th Affidavit paragraph 87 to support his case that I have imposed leave requirement for issuing Summons.

50.  At paragraph 138 of the Recusal Decision, I said the reason for not listing a date for hearing H’s Holiday Summons was because H sought for the Summons to be dealt with by paper disposal (emphasis added).  Why should a hearing date be given for an application expressly saying to be dealt with by way of paper disposal ?

51.  H in his 17^th Affidavit paragraph 33 did not provide any explanation nor did he say that actually he was required by the Court to first clarify his position of the Holiday Summons before a hearing would be scheduled.  Instead, H twisted around by arguing a Grepe v Loam order was granted by me.  This was plainly wrong.

52.  At paragraph 87 of W’s 15^th Affidavit, she correctly said it was a case management arrangement depending on the court’s diary, nature of the application, likely time needed and the urgency of the application.  This was what “approval” means in context.  H tried to portray the case management arrangement as if there was a Grepe v Loam order granted by me.  I agree with W.

53.  I find there was no reasonable prospect of success on appeal in respect of sub-ground 1(f).

Sub-ground 1(g)

54.  For sub-ground 1(g), H referred to paragraph 146 of the RecusalDecision and pinpointing to paragraph no.2 cited therein where I said :-

“2.

The so called “urgency” for hearing the Intended Summons prior to commencement of the coming Christmas school holiday on 21/12/2021 was based upon the Respondent’s personal wish, aspiration and/or manipulative and/or assertive manner of conducting litigation as opposed to any legitimate juridical grounds considered objectively.”

55.  It must first be remembered that the cited paragraph no.2 was part of the letter of reply dated 10/12/2021 to H’s lawyers containing the directions granted by me on 9/12/2021.  The Christmas school holidays started on 21/12/2021 (that is, 11 days after the date of the letter).  Clearly this was H’s wishful thinking that his Holiday Summons could be heard within the period of 11 days (including Saturday and Sunday).  This justified my use of the expression “so calledurgency (emphasis added) in my directions”.

56.  H also complained that my comments “Respondent’s personal wish, aspiration and/or manipulative and/or assertive manner of conducting litigation” are extremely personalised and scathing and would lead FMO to conclude there was a real possibility of bias against H.  In my decision, the said comments must be read in context and in conjunction with what I then said, that is, “asopposed to any legitimate juridical grounds considered objectively (emphasis added) so that it could be probably and fairly understood by the FMO.   

57.  That said, my comments are clearly justified and well-founded in the mind of the FMO for the following reasons :-

-  repetitive letters/requests from H’s lawyers for listing his          Holiday Summons keep coming in despite that all of which      had been responded to by this Court (see paragraphs 129 to         144, 146 of the Recusal Decision; and

-  insisting to list a hearing of the Holiday Summons despite the shortness of time of only 11 days before the Christmas Holidays start; and

-  the increased general access already in place (see paragraph 145 of the Recusal Decision).

58.  I find there was no reasonable prospect of success on appeal in respect of sub-ground 1(g).

Ground 2

59.  H complained that there was failure on my part to take into account material and relevant considerations.  In so saying, H referred to himself losing faith and confidence in my impartiality and professionalism.  H also submitted that my presence as the FDR and CDR judge would undermine his chances of success of both.

60.  H went further to submit that I could recuse myself even without a proper hearing or adjudication on the complaint of bias against me simply for the sake of protecting the appearance of justice[11].

61.  Ground (2) was devoid of merit and substance.  It could hardly be accepted.  H’s perception of impartiality on my part was a self-proclaimed one not substantiated by any evidence.  Likewise, H’s concern of not succeeding in both FDR and CDR before me as the presiding judge was another self-proclamation rather than any legitimate reason for seeking leave to appeal my Recusal Decision.

62.  H’s other submission of recusal simply for the sake of protecting the appearance of justice even without hearing the complaint or any proper adjudication is a complete non-starter.  The facts of this case do not support such an avenue for recusal.

63.  I find there was no reasonable prospect of success on appeal in respect of Ground 2.

Any other grounds in the interests of justice?

64.  Apart from the above grounds of appeal, there was no submission by H that leave to appeal should be granted on the “interest of justiceground” for granting him leave to appeal.  Nonetheless, I have also considered this limb.

65.  Upon considering the peculiar background and circumstances of this case, I find there are no other grounds in the interests of justice to grant leave to appeal to H against my Recusal Decision.

Decision

66.  For all the reasons above, I decided that H’s application for leave to appeal the Recusal Decision fails.

Costs

67.  Given the outcome of H’s application and the above reasons, I decided that it is only fair and reasonable for costs to follow the event. 

68.  I also grant Certificate for one Counsel.

Orders

69.  I now grant the following Orders :-

(a)  H’s Summons dated 14/7/2023 for leave to appeal be dismissed;

(b)H to pay W’s costs of his application, to be taxed if not agreed;

(c)  There be Certificate for one Counsel.

70.  This is a costs order nisi which will become absolute if no application to vary the same is made within 14 days from the date of this Decision.

FCMC 4633 / 2020

[2023] HKFC 193

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4633 OF 2020

------------------------

------------------------

-------------------------

D E C I S I O N
(Leave to Appeal)

-------------------------

The Application

1.  The Petitioner is the wife.  The Respondent is the husband.  I will refer to them conveniently as “W” and “H” in this Decision.

2.  On 24/5/2023 this Court handed down its Decision (“24/5/2023 Decision”) dismissing W’s application by Summons taken out under Rule 121 of the Matrimonial Causes Rules (Cap.179A) (“MCR”) and inherent jurisdiction (“W’s Rule 121 application”). 

3.  W’s Rule 121 application was for general leave to use, produce and/or refer to documents and/or information disclosed or filed in these matrimonial proceedings, and correspondences relating thereto and to provide the same to MRL (who was the domestic helper hired by W) for MRL to prepare her defence to charges in other criminal proceedings.   W’s other application for release from her implied undertaking in relation to the above documents and/or information was also dismissed.

4.  MRL was charged with 3 counts of common assaults in the Eastern Magistrates’ Court. All the offences took place in the former matrimonial home of the parties and during the time when MRL was the domestic helper working there.  The victim of all the assaults was H. 

5.  On 7/6/2023 W issued a Summons seeking leave to appeal the 24/5/2023 Decision.

6.  H opposed W’s application for leave to appeal.  H filed his written submissions in opposition.

W’s Draft Grounds of Appeal

7.  There are altogether 6 grounds in W’s draft Notice of Appeal annexed to the Summons and categorised under the following headings :-

Ground 1 : Proper Party for the Rule 121 Application;

Ground 2 : Failure to consider Two-Stage approach to disclosure;

Ground 3 : Erred in holding that impermissible for witness in a criminal case to provide additional information and materials beyond testifying;

Ground 4 : Taking into account irrelevant considerations;

Ground 5 : Failure to take into account material and relevant considerations;

Ground 6 : Petitioner’s restrictions on disclosure of information without leave.

The provisions on granting leave to appeal

8.  The jurisdiction to grant leave to appeal rests with section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

9.  The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Fok JA (as he then was) at paragraphs 8 and 9 of the Judgment).

10.  Further, it is trite that an appellate court may only interfere with the exercise of the judge’s discretion in the court below in limited circumstances, in accordance with the well-established principles in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 at 220B to E (see SPH v SA at paragraph 65).

11.  The appellate court would not interfere the judge’s discretion in the court below merely because it would have reached a different conclusion had it been hearing the application at first instance.  It can only interfere in three cases : (1) where the judge has misdirected himself with regard to the principles in accordance with which his discretion had to be exercised; (2) where the judge, in exercising his discretion, has taken into account matters which he ought not to have done; or (3) where his decision is plainly wrong. (see Bright Shipping Ltd v Changhong Group (HK) Ltd (No.2) per Kwan J, VP at paragraph 5)[1].

12.  The appellate court would adopt a cautious approach regarding the weight given by the judge to facts taken into account when exercising the discretion.  The fact that the appellate court would have given more weight than the judge to one of the many factors to be taken into account in exercising the discretion is not a ground for interfering with the exercise of the judge’s discretion.

Discussion

13.  First and foremost, it was common ground that the 24/5/2023 Decision was an exercise of discretion in respect of which appeal could only be brought under established principles or within limited circumstances.

14.  I will now consider W’s draft grounds of appeal in sequence.

15.  Grounds (1) and (2), in my view, are actually intermingled and therefore would be considered together.  W fairly conceded that there was no local instances for a non-party to intervene in matrimonial proceedings to seek disclosure, and also rightly accepting that this may be jurisdictionally permissible at least in the English context[2] (emphasis added), the contention which W took was that the non-party, namely MRL in this case, would be unable to do so without first knowing what documents are there in these matrimonial proceedings for her to seek disclosure.  It was on such basis of contention that W believed that she should be the proper party for an application under Rule 121 of the MCR.  This is essentially what Ground (1) was about.

16.  There are 2 sub-rules under Rule 121 of the MCR.

17.  Rule 121(1) specifically referred to “A party to any matrimonialproceedings (emphasis added)”, that is to say, must only be the Petitioner or the Respondent.

18.  Rule 121(2) referred to “Except as provided by ..…. and paragraph(1) of this rule,no documentfiled ..…… shall be open to inspection by any person (emphasis added) without leave of the court, and no copy..….. shall be taken by, or issued to, any person (emphasis added) without such leave.”

19.  Thus it is clear that the applicant in an application under Rule 121(2) of the MCR could be any person (emphasis added) not necessarily restricted to the parties in the case.  Given the fact that it was MRL who might require the documents and information in these matrimonial proceedings for preparing her case of defence in the criminal proceedings, the proper party for seeking disclosure should be MRL so decided by this Court.

20.  On seeing the fundamental flaw in her Ground (1), W started to propose a “Two-StageApproach” into her Ground (1) and then elaborated such approach as her Ground (2).  W further said that it was compelling and warrants the appellate court scrutiny on such “Two-StageApproach” so that a ruling by the Court of Appeal would address a longstanding procedural lacuna.[3]  The proposition of a “Two-StageApproach” was for W to first seek leave from the Family Court to use, produce, or refer to documents and information (Stage 1); then followed by consideration of the issue of confidentiality/privacy after MRL’s legal advisers considered the documents or information disclosed to them by W (Stage 2).

21.  W cited the case of Re A (Criminal Proceedings: Disclosure)[4] to support her “Two-StageApproach” in these grounds of appeal.  W’s submission was that her position in her Rule 121 application was analogous to the solicitor in the Re A case who had successfully sought leave to divulge information to his client for defending a criminal charge.  W further submitted that the terms of her Summons as framed for the Rule 121 application encompassed both “stages”.[5]  There was also submission by W that this Court did not invite Counsels’ assistance and adjourn the oral hearing on 9^th May 2023 for the filing of further written submissions, but instead dismissed W’s Summons outright despite that there was a lack of urgency in ruling upon W’s Summons.[6]

22.  With respect, the analogy drawn by W upon herself being akin to the solicitor in the Re A case was plainly incorrect.  Given that the solicitor in the Re A case was a non-party who directly obtained leave from the court for divulging information, there was no question of considering any “Two-Stage Approach” involved.  Further and to the contrary, the Re A case cited by W’s team of Counsel supported my decision against W in her Ground (1) that the proper party to the Rule 121 application could be a non-party; not necessarily have to be H or W.

23.  As raised by Miss Anita Yip, S.C., for H in her written submissions, which I respectfully agreed, the “Two-StageApproach” did not appear either in W’s Summons dated 26/4/2023 or her Notice of Appeal dated 7/6/2023.  There was also no such reference in W’s 17^th Affidavit filed in support of the said Summons.  A relief not sought in the court below and not mentioned in the notice of appeal will not be entertained (as per Kwan JA at paragraph 97 inTL v SN).[7]  I also agreed with Miss Anita Yip, S.C., that since the “Two-StageApproach” was a point not taken or an argument not advanced in the trial proper, it could not be pursued at the hearing of the application or appeal without leave of the court.[8]  Suffice for me to say was that up until now, there was no leave for W to do so or was there any application for such leave.

24.  In my decision, W’s “Two-StageApproach” on a Rule 121 application was a belated conceptual adventure but raised as a ground of appeal.  Given W’s concession of non-party application may be jurisdictionally permissible and also my ruling on non-party applicants under Rule 121 (2) of the MCR are permissible, there was simply no “procedural lacuna” so submitted by W which call for a ruling by the Court of Appeal allegedly required for the benefit of future applications.

25.  On the submission of “lack of urgency” in W’s written submissions[9], this was unsustainable. Within W’s 17^th Affidavit dated 26/4/2023 filed in support of her Rule 121 application and under the sub-heading of “Urgency” where she said :-

“16.	I therefore make this application urgently and would be grateful if it can be heard and determined before the Criminal Trial commences on 17/5/2023 so relevant and necessary materials for the purpose of conducting MRL’s defence in the Criminal Proceedings can be provided to her.”

26.  I find there was no reasonable prospects of success on appeal in respect of Grounds (1) and (2).

27.  W’s contention under Ground (3) was unsustainable.  There was no finding or ruling on the legality or illegality for W, as one of the defence witness for MRL, to provide MRL with documents and information.  At paragraph 47 of the 24/5/2023 Decision, the refusal was clearly said to be upon the assumption that it was legal for W to do so but, nonetheless, W would also fail in her Rule 121 application after taking into account all the relevant facts and circumstances.

28.  I find there was no reasonable prospects of success on appeal in respect of Ground (3).

29.  W’s contention under Ground (4) was a non-starter.  On the one hand, W was contesting that this Court had taken into account irrelevant consideration when referring to those procedures in criminal proceedings (both on the prosecution and defence side), all of which should not be taken into account; however, W then suggested that the pertinent question in this Rule 121 application was whether the documents and information which W sought to disclose to MRL could potentially assist MRL in her case of defence.

30.  With respect, such contention was mutually exclusive if not nonsensical.  Without referring to all possible options of defence available in criminal proceedings and considering each of them, how would this Court perform its balancing exercise as to where the discretion should lie ?  Should it lie in favour of protecting the strict confidentiality of H and the children in these family proceedings or to ensure that the public interests of MRL having a fair trial to be upheld.  Had MRL decided not giving any evidence and just putting the prosecution to strict proof of their case beyond reasonable doubt, which was an option or strategy open to the defence in criminal proceedings, what would be the rational or justification for compromising H’s and the children’s confidentiality by providing MRL with all the documents and information who then, presumably upon her own legal advice, decided not to rely upon any of them in her case of defence ?

31.  It is thus important for MRL to be the party for the Rule 121 (2) application.  MRL would have to show that a prima facie case for disclosure exists whereupon she also need to seek leave to obtain a list of the documents filed in these matrimonial proceedings within which disclosure might be sought.  Upon disclosing her line of defence and identifying the documents and information she needed, the Family Court would then be able to carry out the balancing exercise for its discretion and; by then, would also be in the position to consider any claim of privilege against self-incrimination (“PSI”).

32.  I find there was no reasonable prospects of success on appeal in respect of Ground (4).

33.  W’s Ground (5) referred to this Court had not attached any importance to the need of ensuring MRL was not wrongly convicted.   There was also the submission that the outright dismissal of W’s Summons would fundamentally impair MRL in providing a full defence in the criminal proceedings.

34.  First, nowhere in the 24/5/2023 Decision prevented MRL from bringing a separate Rule 121 (2) application by herself upon this Court’s dismissal of W’s Summons.  Thus, it is wrong to say that MRL’s rights had been fundamentally impaired following W’s failed application.

35.  How likely would MRL be convicted or, in the words of W, wrongly convicted (emphasis added) was entirely a matter of evidence at the criminal trial.  Without knowing MRL’s line of defence, it was unfair to say or to raise the submission that without the documents and information sought by W, MRL would more likely than not to be convicted, or wrongly convicted (emphasis added) in the criminal proceedings; and thus causing injustice or being unfair to MRL under the open justice principle.

36.  The cases and authorities cited by W’s team of Counsel in their written submissions merely stating the established principles of open justice and public interests in that the court should not erect a barrier that would prejudice the other branch of the judicature, it does not wipe out the importance and the need to preserve strict confidentiality in family court proceedings or setting up any precedents facilitating disclosure to non-party whenever there was an application made by one of the party in the family proceedings under Rule 121 of the MCR.

37.  I find there was no reasonable prospects of success on appeal in respect of Ground (5).

38.  W’s Ground (6) referred to possible breaches of Section 5(1) of the Judicial Proceedings (Regulations of Reports) Ordinance, Cap.287 (“JPRRO”).  Of concern to W was the broad ambit of the said statutory provision might carry the possibility that, amongst other things, the giving of oral evidence as a defence witness of MRL in the criminal proceedings might also contain information in these family proceedings which would then be prohibited by the JPRRO.

39.  Although the issue of possible breaches of the JPRRO was only raised by W’s Counsel Miss Theresa Chow belatedly in her Note for Hearing dated 8/5/2023 (that is, the day before trial) and during the trial on 9/5/2023 and not within the terms of W’s Summons or her 17^th Affidavit, I would allow such issue to be included as one of W’s grounds for seeking leave to appeal in this application in light of paragraph 7 of the Practice Direction 5.4.

40.  H’s contention to Ground (6) was that there was a distinction between “information relating to the child” and “informationrelating to the proceedings”.  It was only the latter, and not the former, which was prohibited by the provisions under the JPRRO (see A v Ward [2010] 1 FLR1497 §113).  Thus, MRL could still give evidence of the facts or information about the 2 children independently outside these matrimonial proceedings without fear of contempt.   After all, MRL was facing 3 counts of assault allegedly over H personally and thus information about the children would not be directly relevant.

41.  I have read the case of A v Ward (supra).  I agreed with H’s submission. 

42.  I find there was no reasonable prospects of success on appeal in respect of Ground (6).

43.  Giving further careful overall consideration to all of W’s grounds of appeal, I find that none of the 3 cases[10] for bringing an application for leave to appeal against a discretionary decision exists.

Any other grounds in the interests of justice?

44.  Apart from the above grounds of appeal, there was no submissions by W that leave to appeal should be granted on the “otherwise ground”, that is, it is in the interests of justice to grant her leave to appeal.  Nonetheless, I have also considered this limb.

45.  Having reviewed and reconsidered all the submissions and circumstances of this case, I find that there are no other grounds in the interests of justice to grant leave to appeal to W; in particular, W being a party to the matrimonial proceedings but not the proper party for the Rule 121 application.

Decision

46.  For all the reasons above, I decided that W’s application for leave to appeal fails.

Costs

47.  Given the outcome of W’s application and the reasons therefor, I decided that it is only just and reasonable for costs to follow the event. 

48.  I also grant Certificate for Senior Counsel and one Counsel.

Orders

49.  I now grant the following Orders :-

(a)  W’s Summons dated 7/6/2023 for leave to appeal be dismissed;

(b)  W to pay H’s costs of this application, to be taxed if not agreed;

(c)  There be Certificate for Senior Counsel and one Counsel

50.  This is a costs order nisi which will become absolute if no application to vary the same is made within 14 days from the date of this Decision.

FCMC 4633 / 2020

[2023] HKFC 125

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4633 OF 2020

----------------------------

----------------------------

-------------------------

D E C I S I O N
(Recusal)

-------------------------

This Application

1.  This is the trial of an application taken out by the Respondent Husband (“H”) by way of summons dated 30/12/2021 (filed on 3/1/2022) seeking :-

“1.	His Honour Judge George Own shall recuse himself from participation in these proceedings under FCMC 4633/2020 including any further hearings (“Recusal Application”);
2.	All further hearings under FCMC 4633/2020 be vacated, adjourned and re-fixed until after the determination of the Recusal Application; and
3.	There be no order as to costs of this application.”

2.  I will refer to this as “H’s Recusal Summons”[1] in this Decision.

3.  H filed his 17^th Affidavit in Support[2] of the application.  W filed her 15^th Affidavit in Opposition[3].  H then filed his 20^th Affidavit in Reply[4].

Background

4.  Parties married with each other in 2007. There are 2 children of the family, namely, a boy born in 2009 and a girl born in 2012.  Parties separated in 2017.   A 9-page Mediated Agreement[5] was signed by the parties in February 2018  in the presence of a lawyer of Messrs. Withers, the legal team now representing H in these proceedings.

5.  Parties marriage was dissolved by a Decree Nisi granted in June 2021.  Parties are persistently in high conflict momenta over children’s matter which ended up with a number of interlocutory application(s) taken out over the past years.

6.  Parties’ acrimony can be reflected by the interlocutory reliefs sought in these proceedings such as ouster order; injunctive reliefs; non-molestation orders; committal proceedings and that most of them had yet to be disposed of after determination of this Recusal Application.

7.  It may be worth to mention that throughout these proceedings, the legal teams for the parties had engaged in protracted and lengthy correspondence exchange over different areas most of which would still have to end up with filing application(s) with the Court.    Undesirably, parties’ legal teams (both of which are reputable law firms specialized in matrimonial practice) chose to send over most, if not all, of their letters exchanged to this Court for no meaningful purpose except to increase costs and elevate acrimony between the parties.  

8.  Worst still, there are also numerous letters from the legal teams on both sides directly sent over to this Court and copied to the other party either complaining upon other party’s litigation conduct or seeking directions from the Court over different matters stated in their letters.

9.  That said, this Court was “bombarded” with no less than 15 letters, most of which are also lengthy and with enclosures, within a month.  Such conduct must be deplored and would not be accepted or condoned.

The law on bias

10.  In the unreported case of Chau Siu Woon & anor vCheung Shek Kong & Ors, CACV No.164 of 2007 (date of decision : 19/4/2010), Hon Cheung JA gave useful information on the law of bias :-

“Bias

8. Traditionally the recusal of a judge is pursued under the ambit of

bias. The absence of bias is, after all, an aspect and illustration of the fair

hearing requirement. If bias is established then clearly the fair hearing provision is engaged.

Actual bias

9. Bias may be in the form of actual bias or apparent bias. Actual bias means the decision maker was influenced by either partiality or prejudice and it has been demonstrated that he was actually prejudiced; actual bias is a conclusive vitiating factor : see Fordham in JudicialReview Handbook 5^th Ed, Para 61.2.1. In In reMedicaments and RelatedClasses of Goods (No.2) [2001] 1 WLR 700, Lord Phillips MR (as he then was) stated :

‘[38] …..The phrase “actual bias” has not been used with great precision and has been applied to the situation (1) where a judge has been influenced by partiality or prejudice in reaching his decision and (2) where it has been demonstrated that a judge is actually prejudiced in favour of or against a party.’

10. But as Fordham explained at Para 61.2, the shortage of relevant cases on actual bias reflects the fact that actual bias is rare, difficult to prove and largely redundant given the other grounds of bad faith, improper motive and apparent bias. As Lord Bingham in Locabail (UK) Ltd vBayfield Properties Ltd [2000] QB 451 at 471 observed.

‘[3] …….The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind, and the policy of the common law is to protect litigants who can discharge the less burden of showing a real danger of bias without requiring them to show that such bias actually exists’

The reference to ‘a real danger of bias’ by Lord Bingham is, of course, a

reference to apparent bias.

11.  Nonetheless Mr. Wong had boldly taken on the task of saying that the Master was guilty of actual bias.  He relied on the hostility and   partiality of the Master against the 1^st plaintiff.  These are also the grounds  for his case on apparent bias.

Apparent bias

12.  The relevant test for apparent bias has been reviewed by the Court of Final Appeal in Deacons v White & Case LtdLiability Partnership &   Others (2003) 6 HKCFAR 322 which took into account the development  of the English law in this area in cases such as Director General of ‘Fair  Trading’ v Proprietary Association of Great Britain [2001] 1 WLR 700  and Porter v Magill [2001] UKHL 67.  The test can be stated 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.

Fair-minded observer

13.  Further as observed by the House of Lords in Helow v Secretary of State for the Home Department and another [2008] 1 WLR 2416, per Lord Hope of Craighead at 2418,

‘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.  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 their 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.’

11.  Senior Counsel for both parties referred me to some other cases and authorities in their Written Submissions.    I do not intend to go through each of them unless they are of relevance and importance.

H’s grounds in support of the “Recusal Summons”

12.  H referred to several matters that had arisen, including orders made by me, in respect of which if one considered them individually or collectively, would suggest to any objective by-stander to conclude that there was a real possibility that I was biased against him.   

13.  In H’s Counsel Miss Anita Yip, SC’s Written Submissions, those matters were categorized under 7 headings from D1 to D7.  In addition, reference was made to my decision to vacate the hearing on 15/11/2021 scheduled to hear H’s Committal Summons and also my directions granted on paper on 9/12/2021.

14.  I recite below each of the Grounds of complaint put forward by H, using his numbering from D1 to D7 :-

“D1	-	the Order dated 29 July 2021;
D2	-	the Court’s dismissive attitude and unwarranted criticism towards H’s attempt to very access as shown in the letter dated 18 August 2021;
D3	-	The Court’s order to vacate the Trial without parties’ input;
D4	-	The Court’s unwarranted criticisms towards H at the hearing on 7.9.2021;
D5	-	The Court’s unwarranted imposition of leave requirement against H in light of H’s intended Holiday Summons;
D6	-	The Court’s unwarranted criticisms against H in light of H’s intended Holiday Summons;
D7	-	The Court (indirect) pre-mature dismissal of H’s Intended Summons by using its case management power.

15.  Since H had not specifically stated that he was complaining me of actual bias against him, I would approach his recusal application from the apparent bias perspective.

16.  W’s Senior Counsel filed her Written Submissions (38 pages with 52 paragraphs) in response to H’s Senior Counsel’s Submissions (35 pages with 143 paragraphs). 

The test for apparent bias

17.        On the topic of apparent bias, I will start with 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.”

18.  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 Mr Justice Ribeiro PJ giving the judgment of the Appeal Committee 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.”

19.  In the same case of Falcon [2014] 3 HKLRD 375, where the Court of Appeal (Date of Judgment : 10 September 2013), per Hon Kwan JA, 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 FootballUnion, 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. (Emphasisadded)
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 conclusionbased 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).”

20.  In Hong Kong, in the 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 vMagill [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 FalconPrivate 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 Helowv Secretary of Statefor 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.”

21.  Guided by the above principles which are binding upon me, I will now consider each of the grounds under D1 to D7 individually in their order of sequence followed by the further complaint(s) of bias over the other directions granted by me.

Chronology preceding the Order dated 29 July 2021

22.  I will start with some of the application(s) preceding the Order dated 29/7/2021.

23.  W issued a Summons dated 10/9/2020 (“W’s2020 Summons”) seeking ouster order and non-molestation order(s) against H.  W issued a further Summons dated 28/6/2021 (“W’s 2021 Summons”) seeking leave for “W’s 2020 Summons” be heard together with H’s Summons dated 17/9/2020 (“H’s 2020 Summons”) where H sought for interim shared care and control of the 2 children.   By that time, H’s 2020Summons had already been scheduled for a 4-day trial commencing 7/9/2021.

24.  W’s 2021 Summons was heard on 30/6/2021 within the 1-hour time slot scheduled for the Pre-Trial Review of H’s 2020Summons and also for the 1^st Appointment hearing. According to the Court’s records, the hearing ended up with the whole morning (from 9:36 a.m. to 12:29 p.m.).  The following case management orders/directions were granted by me :-

- “W’s2020 Summons” be adjourned to 29/7/2021 at 2:30 p.m. (1 hour reserved) for directions;

-  “W’s 2021 Summons” be adjourned to 7/9/2021 at 9:30 a.m. for directions (that is, the 1^st day of trial of “H’s 2020Summons”);

- The trial dates of “H’s 2020 Summons” do stand;

- The Single Joint Psychological Expert Report by Miss Lora Lee (“SJE”) dated 25/6/2021 be provided to the Social Welfare Officer for preparing a short memo, on an expedited basis, on 26/7/2021 as to :-

(i) appointment of Official Solicitor to represent the 2 children; or, only the elder child; and

(ii) any views or comments in light of the SJE Report.

- Both H and W to undergo psychiatric assessment/treatment and report to this Court at the hearing on 29/7/2021;

- Both parties to attempt to agree on the psychiatrist for the elder child.

25.  Next come along was the hearing on 29/7/2021 which was originally scheduled for 1 hour to start at 2:30 p.m.    According to the Court’s records, this hearing started at 2:33 p.m. but ended at 8:31 p.m.  There was a “stand-down” of around 90 minutes for me to attend a meeting and the hearing was resumed afterwards.   Even excluding the 90-minute break, this was a quite lengthy hearing.   Senior Counsel on both sides have had sufficient time to address me on the dilemma and overall situation of the family at the time. 

26.  H’s legal teams had helpfully obtained the 83-page full transcript of the hearing on 29/7/2021[6].

Ground of Complaint – D1

27.  On 29/7/2021, there was before me the SJE Report prepared by Miss Lora Lee dated 25/6/2021 and the Update Memo from Social Welfare Officer dated 26/7/2021, the latter of which was directed by me earlier[7] and to be prepared on an expedited basis.

28.  At 61M to 61O of the transcripts, I said :-

“As for today, there was the Social Welfare report and the SJE, Miss Lora Lee’s report.  And also at the court’s direction, a social welfare officer memo was also produced by the Social Welfare officer in charge to assist the court today for considering any necessary directions.”

29.  At the end of the hearing, I granted various interim orders and case management directions after hearing lengthy submissions from Senior Counsel on both sides.   I have also reviewed the aforesaid SJE Report and the Update Memo of the Social Welfare Officer.   H is now complaining that I was biased against him in granting (i) the interim ouster order; (ii) the interim non-molestation order; and (iii) the interim supervised access order.  H also said by granting the said interim order(s), I have “pre-judged” the matter.

30.  H submitted that I sought to appear as “neutral, objective, unbiased and open-minded” when I granted the 29/7/2021 Order; in particular, I stressed that it was only on an interim basis for the next 5 weeks and without deciding who was the “bad guy” causing the situation.   The principles I stressed above did not justify the (i) ouster order; (ii) non-molestation orders; and (iii) Supervised Access order that I have made on that day.

(a)  Interim Ouster Order

31.  H said if it was traumatic for him, W and both children to live under the same roof, given W’s recurring physical confrontation with the elder child; and that it was in the best interests of both children to reside together, why should the children stay with W instead of H ?

32.  It appears that H has now agreed that it was in the best interests of the 2 children residing together.   However, this was not H’s position at the hearing on 29/7/2021.   This is obvious from reading the transcript of that hearing.From 52N to 52P of the transcripts where Miss Yip, SC said :-

“Now, your Honour, another thing really is this.  You have to think whether excluding the father is practically possible.  He has not secured a place. All that he has ever said would be, if the mother is amenable to an amicable solution for him and [elder child] to move out (emphasisadded) temporarily, he tries to secure a place within walking distance, every, very close to the former matrimonial home so as to facilitate interaction between the siblings and so on…..”

33.  “At 62B to 62Q of the transcripts which recorded part of my ruling where I expressly said that whatever decisions or directions that I made, I only have the best interests of the 2 children in mind to the exclusion of the parties’ numerous cross allegations against the other (see 62B to 62D of the transcripts).  

34.  At 62H to 62K of the transcripts, I then said :-

“Well, the question then followed is whether [elder child] should stay with the father or the mother.   Father’s suggestion of leaving thematrimonial home, bringing along with him [elder child], would separate the siblings’ bonding.  I believe this is not in the best interestsof both children (emphasis added).  The simple reason is that this may or might cause the children to believe he or she was being isolated by the other parent.  Therefore, I decided that both [elder child] and [younger child] should stay with one parent.”

35.  Reading from the above transcripts, it was clear that H had offered (i) to leave the matrimonial home; but (ii) he would bring with him only the elder child (emphasis added).This was not accepted by me to be the best interests of the 2 children.   There was no suggestion or offer from H that he would bring with him both (emphasisadded) children no matter he leaves or stays in the former matrimonial home.  How could H now complain that I have chosen W and the 2 children instead of him to stay when he offered to take only the elder child (emphasis added) and not taking both children with him ?

36.  Further, despite the admittedly traumatic situation of the family at the time and the tense relationship between W and the elder child, W had never refused to stay along to look after both children.   The true reason for the elder child’s behavior towards W was something which need to be explored in due course with the assistance of experts.   It was common ground, and supported by the SJE Report and Social Welfare Officer’s report, that the [elder child] required further investigation on his behavior and probably follow up treatment which had yet to begin.The SJE Report even suggested that the [elder child] be separated and stayed away from both parents.  The SJE’s suggestion was not welcomed by both parties and not being adopted by me for the time being.

37.  Hence, with respect, I do not accept Miss Yip, SC’s submission of “W’s recurring physical confrontation with [elder child]” without paying heed to the true reason of [elder child]’s behavior had yet to be explored and simply assertively said “W’s recurring physical confronted with [elder child]”.[8] The simple expression of  “W’s recurring physical confrontation” without any qualification might suggest that it was W (with the use of “W’s” ) who caused the confrontation with [elder child].   With respect, this was not factually correct.   I must say that such submission lacks objectivity.

38.  It can be seen at 62P to 62R of the transcripts where I said :-

“Given that this is just an interim arrangement, I decided that I should err on the safe side (emphasis added) by putting both children under the mother’s care and control for the time being whilst the true reasonfor the behavior of [elder child] towards the mother has yet to beexplored after trial (emphasis added).”

39.  I decided that in the interim W should be the carer of both children, and it was also in the best interests for both children to maintain the status quo and reside together at the former matrimonial home, a place where they are familiar with.   Clearly, it was more easy for H himself to leave the former matrimonial home temporarily rather than for W bringing along with her the 2 children (3 persons) to move out to avoid the already traumatic family situation and not to continue keeping the 4 of them under the same roof.

40.  I do not see that an objective by-stander would conclude that there was any apparent bias or risk of apparent bias against H in granting the interim ouster order.

(b)  Interim non-molestation order

41.  H’s other complaint was that the interim non-molestation order was a unilateral one granted against him only.  Such complaint was not justified as can be seen from reading the following transcripts.

42.  At 62U to 63C of the transcripts, I said :-

“Therefore, I will grant the interim ouster order against the father to take effect by 4 p.m. on 1 August until further order. Since the father offeredno undertaking (emphasis added) on the non-molestation reliefs sought by the mother, I will also grant an interim non-molestation order against the father as both children would now be under the interim care and control of the mother……...”

43.  In most cases, a party against whom non-molestation order(s) or injunctive relief(s) are sought would normally agree to provide undertaking(s) similar or identical to the reliefs sought against him or her for the interim period (emphasis added) pending substantive argument of the application(s).    This was done in order to avoid any interim order(s) being granted before the matter was fully argued.   There was no admission of any liability or prejudice of rights by offering the undertaking(s).

44.  Being represented by reputable law firms specialized in matrimonial practice and assisted by Senior Counsel Miss Yip, I believe the common practice and advantage of providing undertaking(s) in the interim period must have been fully explained to H.    It was only that H did not agree with providing any undertaking(s).  This was, of course, a choice of his own.

45.  Being the docket judge overseeing the case noting the parties’ acrimonious relationship with each other, and with children being caught in between their parents, I am of the view that precautionary measures are needed in the interim period to ensure some form of security and protection over the children.  I also saw there was the need to regulate the parties’ conduct in order to maintain some form of discipline of the parents.  

46.  At paragraph 29 of Miss Yip, SC’s Written Submissions, it was said that the non-molestation order(s) that I granted was “unilateral” as it was only against H.   This was a replication of the argument of the ouster order.

47.  At the adjourned hearing on 29/7/2021, in respect of W’s 2020 Summons for non-molestation order(s), there are 3 options available to me, that is :- (i) dismissing W’s application outright; or (ii) granting an order in terms of W’s application outright; or (iii) adjourning W’s application and granting such necessary directions and/or interim orders as the court considers appropriate to cater for the circumstances of the case.

48.  Without a full hearing of W’s application for the non-molestation order(s) and to thoroughly consider H’s defence/contention, options (i) and (ii) must not be granted.   Option (iii) is the only one left.   Such option is an exercise of one of the many case management power(s) at the discretion of the Court.  

49.  H’s complaint the interim non-molestation order(s) was granted only against him, hence being “unilateral”, and in so doing I was biased against him.   Such submission must fail for the following reasons :-

(a)  There was no cross application taken out by H against W  by way of Summons before this Court seeking any similar or reciprocal interim reliefs against W;

(b) It would be wrong for me to grant “mirror/reciprocal ”  non-molestation order(s) only because I had granted such order(s) against H.  This is not a question of fairness, equality or an issue of bias.   In the absence of any application or in this case, cross application from H, to do so would be akin to me granting non-molestation order(s) on my own motion (emphasis added) without an application.

50.  Given that the 29/7/2021 hearing was, amongst others, the adjourned hearing of W’s 2020 Summons, I need to consider all the evidence before me, including any expert report(s) and, in appropriate circumstances, whether or not to grant interim order(s).

51.  For these reasons, I do not see that an objective by-stander would conclude that there was any apparent bias or risk of apparent bias against H for me to grant the interim non-molestation order(s).

 (c)Interim Supervised Access Order

52.  For the Supervised Access Order, H was complaining that since I made it clear that there was no finding of who was the “bad guy” in the case, the Supervised Access Order does not chime on such overt finding.   The Supervised Access Order was seeking to minimize H’s involvement in the children’s life by quantum and degree whilst in no way had I placed any limit on W’s involvement of the children.    The differential treatment was obvious to anyone and wholly uncalled for which suggested that I was biased against H.

53.  The interim Supervised Access Order was granted by me after reviewing the SJE Report of Miss Lora Lee and the Update Memo from the Social Welfare Officer, both of which recommended supervised access should be arranged; in particular, over the elder child who required treatment over his behavior but the treatment had yet to begin.It was said in both reports that the children’s nanny, Ms. S, was a suitable person to assist on access if the Court found supervised access was appropriate.

54.  Ms. S told the Social Welfare Office that she had a close relationship with the children and she was ready to accompany the children in case her assistance was required[9]. In the Update Memo of the Social Welfare Officer, it was said that both H and W considered Ms. S was not the professional person in arranging and supervising the access if there was such a need[10].

55.  The ouster order required H to move to another place and the address of which was not available at the hearing on 29/7/2021.   From reading the transcripts, there was quite lengthy discussion with Miss Yip, SC on the place of access given that I was minded to grant the interim ouster order against H.   I reproduced below some of the relevant paragraphs of the transcripts :-

“Court :	So, would the father be prepared to give an undertaking to confirm that the place is a safe place ?  Like the windows had …. window has frames, etc, no dogs, etc.  I don’t know where is the new place[11].
Miss Yip :	Well, why …. So why is that necessary ?  I mean there is no evidence that he will find somewhere which is uninhabitable and unsafe for himself[12].
Court :	No, no, no, I’m not saying that he will find something …. somewhere uninhabitable, just about …..[13]
……..
Court :	Anyway, we got the Ms. S and the Rent-A-Mum.  I think that that can be safeguard[14].
……..
Miss Yip :	Did you say that it should be supervised by Ms. S and Rent-A-Mum ?[15]
Court :	And Rent-A-Mum[16]
Miss Yip :	Well, Why is that ?  I mean the recommendation is only either/or; why do we need both ?  Because the arrangement itself is going to be extremely difficult.  What if only Ms. S is avail ….. what if Ms. S is not available or Rent-A-Mum is not available ?  Then we’ll be denied of the access.  I mean why is that ?  I mean there is no such recommendation[17].
Court :	No, I think …..well, I think Ms. S is well prepared to assist.  That’s my understanding from reading the report[18].
Miss Yip :	Yes[19].
Court :	And Rent-A-Mum is some kind of arrangement, Rent-A- Mum[20].
Miss Yip  :	Yes.  So either/or is fine; why is it both ?[21]
Court :	Because …..
Miss Yip  :	Either/or…….
Court :	Because we’re talking about two children[22].
Miss Yip :	Well, there is no indication that the father is not going to be able to look after both children.  I mean they are not there ……they’re just supervising/assisting with the access, they are not there to supposed to take care of the children.  One is 9, the other is 12, and all the indication is that the father is very able to or used to be able to take both of them out for activities, so on and so forth.  Why is it necessary that both of them ?  I can immediately see the practical difficulty of one is available, the other is not, then my client ends up having no access at all[23].
………
Court :	Miss Yip, because, well, at this moment we do not have any information about any other person in the new residence.  For instance, if the father got a maid, then things may change.  All right, he may hire a maid or get somebody….a helper, I don’t know.  So unless and until we got that information, then probably he can apply for variation or just to take out one of the Ms. S or the Rent-A-Mum.  Otherwise, if you just leave it with the father himself and two children with Ms. S, okay, and, as I say, we are talking about two children[24].
………
Miss Yip :	Your Honour, I do ask that the situation about renting ……about the arrangement of Rent-A-Mum be reviewed upon my client getting a new helper.  He will definitely try to get a new helper as soon as ……[25]
Court :	Yes, at least give the identity.  Because a new helper will be residing together …… at the same place, so at least the court gets…..court got more information[26].
……..
Miss Yip :	But I want to put down as a marker that the situation will need to be reviewed once the domestic helper…..[27]
Court :	You can always apply for variation, no worry[28].”

56.  I must stress that the above transcripts were crafted out from lengthy back and forth discussion with Miss Yip, SC which contained only those part(s) which are of relevance to access as to whether it should be supervised by Ms. S and/or Rent-A-Mum.    

57.  H’s complaint of bias under his Ground of complaint D1[29], insofar as the interim Supervised Access Order was concerned[30], said such order had minimized the quantum and degree of H over children’s involvement.    I noticed that the need for Ms. S and/or Rent-A-Mum was not made under this Ground of complaint D1 but it was raised under his Ground of complaint D2.   I will deal with D2 in the following paragraphs and I would say no further on the issue of supervised access here.

58.  According to the records, the matter was once stood down for about 1½ hour for Miss Yip, SC to take instructions on access arrangement.   However, no solid or substantive submission on access was provided by H after the adjournment[31].

59.  Miss Yip, SC sought to argue for the lack of proposals on access by submitting that the Supervised Access Order was factually wrong[32]. Miss Yip, SC went on to argue that a 50:50 split/week-on week-off access was clear which effectively means H should have unsupervised access.   In her Written Submissions, she referred to the transcripts at 52N to 53D and 59S to 60L.   Within 52N to 53D, the issue of access started from 52T to 53D which, for the sake of completeness, was reproduced below together with 59S to 60L, all of which are Miss Yip, SC’s submissions.

60.  At 52T to 53D, Miss Yip, SC said  :

“…….you must seriously consider giving unsupervised access.   Now, the only satisfactory arrangement is to have week-on, week-off.  It is very simple because this is allowing the children the same amount of time that they now enjoy with the parties.  And if you are not going to make any decision at this stage, then this must be the only satisfactory solution.  The children will not be confused, although I mean they will be….the confusion will be minimized.  Now, [elder child] will be receiving treatment and [younger child] will also be away from the toxic alienation from the mother by …..balanced out by being able to see the father on a week-on, week-off basis, your Honour.”

61.  At 59S to 60L, Miss Yip, SC said  :

“Your Honour, the interim access, if you were minded to exclude on a week-on, week-off basis, is the only way so as to allow the children to be able to spend sufficient time with the parents as if …..as that is what they are doing.  Your Honour, after all, you are not going to make any decision on interim care and control until September.  Now, this is the issue and you only focus on the outster issue.  The interim, so-called interim care and control only rides on the so-called ouster application. You should not therefore disturb, even if you are satisfied on …..may be it’s practical, but, your Honour, I disagree totally that you should simply because of practical solution, finding a practical way out, and try to remove the husband, try to exclude him.

You have to be faithful to the evidence, and given the state of the evidence, I don’t think that any sane judge…..sorry, not saying that…..it’s a slip of my tongue and I have to withdraw that.  No tribunal being faced with such evidence and only invited to look at snapshot…..we have ten bundles between us….to come to the firm conclusion that it is the husband’s doing.  And if, as I said, you are really minded to take such an extreme course, and I urge you not to do it just because it is practical, then you should not exercise your discretion to exclude the husband.  Even if you do, then please on a week-on, week-off basis so as to allow the children a fair amount of time, an equal amount of time, because care and control and access is the issue which you will investigate thoroughly in five weeks’ time.

You don’t have…..why are you rushing into this decision just because it is a rider, simply a rider on the ouster application ?  You have not focused on this issue.  The application is just an ouster application, it is not an interim care and control arrangement.  No such application has been put before you.”

62.  With respect, I do not accept that there were any proposals coming from H by reading 52T to 53D of the transcripts on access arrangement when the ouster order was in place.   The submissions made by Miss Yip, SC of 50:50 split/week-on week-off access could only match with H’s case of a shared care and control scenario and was not made for the situation where there was an ouster order in place.     

63.  Miss Yip, SC saw fit to remind me not to disturb the access which H had been enjoying even if I found it practical to do so, or simply because of practical solution and in finding a practical way out that I had only focused on the ouster issue.   I was also reminded by Miss Yip, SC that I need to be faithful to the evidence and that, given the state of the evidence, any sane judge would not only look at snapshots given that there were bundles of evidence before me which are to be investigated at trial.

64.  I have a few observations. 

65.  First, the Supervised Access Order was not granted out of any practicality; because it was a practical solution or simply a practical way out with only the ouster order in mind.    With all due respect, Miss Yip, SC’s submission crossed the bridge and missed the point.   There was the necessity (emphasis added), after having reviewed the SJE Report and the Social Welfare Officer’s Update Memo before me on 29/7/2021; both of which are evidence that I have faithfully considered (emphasis added) to grant the Supervised Access Order.   To be fair to Miss Yip, SC, I believe she was referring to the state of the evidence of the parties (emphasisadded) that I had to be faithful and was not referring to the evidence of the SJE Report and the Update Memo from the Social Welfare Officer which I just mentioned.

66.  Secondly, I accept Miss Yip, SC’s apology and withdrawal of those words “…any sane judge…” (implicating that I may be “insane”) which came from her out of a slip of the tongue.   The point which I would like to make was that there was meticulous and careful analysis by me of all the circumstances; including leading Counsels’ submissions at length, SJE Report and the Update Memo, before I granted the Supervised Access Order.   The Supervised Access Order was never a product of any snapshot or flip through on papers.   This could be reflected by the hearing time of that day which eventually ended at 8:31 p.m. in the evening.

67.  Thirdly, I noticed Miss Yip, SC in her able submissions[33] took the point that I have considered the Mediated Agreement which the parties had signed when deciding the access arrangement.  Such reliance indicated bias on my part for the following reasons :-

-	why isn’t W being held to the general agreement that there shall be staying access at H’s residence on alternate weekends in lieu of H’s access on Saturdays ?
-	nowhere in the Mediated Agreement suggests H’s access shall be supervised;
-	access was meant to take place at the former matrimonial home and I have ousted H;
-	when determining access, I gave effect to the part disadvantageous to H, namely, the duration of access, and  ignored the advantageous part to H, namely, staying access, location and no supervision.

68.  It was pertinent for me to go back to the transcripts at 63M to 63O which was my ruling on Supervised Access.   They are now reproduced below :-

“About the defined access, and I have considered Miss Eu’s submission that it was copied or recorded in the Mediated Agreement and which I have also invited Miss Yip for submissions on the access arrangement…. I had given chance for Miss Yip to do so but I ….unfortunately I haven’t got any solid submission on the access….. So I decided for the time being it’s an interim defined access as per the suggestion of Miss Eu, Tuesday, Thursday, 7 to 9, and Saturday, 4 to 9 p.m.

The question which follows is whether it should be supervised, and given consideration on the material, I decided that …..again on the basis of erred on the safe side (emphasis added) … that it need to be supervised by Ms. S and Rent-A-Mum.”

69.  I was being open-minded and gave both parties the liberty to propose interim access arrangement.   Miss Eu, SC for W came back with Tuesdays, Thursdays and Saturdays for day access which she frankly admitted copied from the Mediated Agreement.   Given that such access interval would mean that the children would be able to see their father within, say, every 2 days (or 48-hour intervals), I accept this would be in the best interests of the children whilst with the ouster order in place.

70.  Miss Yip, SC’s submissions of “reliance” on the Mediated Agreement and, by so doing, I have singled out the advantageous part of it to H and that this was bias against H was, with respect, incorrect if not misconceived.   There was no “reliance” in the first place.   Miss Eu, SC referred to and saw fit to copy from the Mediated Agreement those dates for proposing day access arrangement which I accepted, with the best interests of the children in my mind.   This was not “reliance” by me on the Mediated Agreement in any legal or even common sense or by their ordinary literal meaning.   “Reference” must not be misconstrued to mean “reliance”. Refer to something or someone must mean differently from relying on something or someone.

71.  For all the above reasons, I do not see that an objective by-stander would conclude that there was any apparent bias or risk of apparent bias against H when I granted the interim Supervised Access Order against him.

72.  I find H’s Ground of complaint D1 unjustified.

Ground of Complaint – D2

73.  On Ground of complaint D2, specific reference was made to the Court’s letter dated 18/8/2021 sent to H’s lawyers (“the 18/8/2021 letter”).  The contents of the letter was now reproduced below :-

“1.	Please identify precisely, apart from Respondent’s personal wishes and desire, the material change of circumstances (if there is any) since the interim defined access Order was granted on 29/7/2021 which call for an urgent variation of the said Order despite the fact that the substantive trial proper of access is due to start on 7 September 2021 (that is, in only 3 weeks’ time).
2.	Please also note the Respondent appeared to be seeking variation of the interim defined access before the children’s summer holidays end, that is, 31 August 2021 (which is only about 2 weeks ahead from now (paragraph 5 of Respondent’s 11th Affidavit).”

74.  A lot must be said as to what had happened from the time after the 29/7/2021 Order was granted which led to this Court sending over the 18/8/2021 letter after 20 days.

75.  On 30/7/2021 (Friday), that was the next day after the 29/7/2021 hearing, H’s lawyers wrote to this Court and sought variation of the 29/7/2021 Order.   In this letter, there are suggested amendments by H’s lawyers.   This letter was only received by this Court with a stamp chop of “2/8/2021 at 12:08 p.m.”)

76.  On 3/8/2021 (Tuesday), H’s lawyers wrote 2 letters to this Court. 

- The 1^st letter (received with a stamp chop of “3/8/2021 at 5:12 pm.”) informed this Court that a live-in domestic helper had been hired by H.   Request was made for substitution of the supervised access by Ms. S and a representative from Rent-A-Mum by Ms. S and the newly hired domestic helper.  

- The 2^nd letter (received with a stamp chop of “3/8/2021 at 5:13 pm.”) attached with a draft of the 29/7/2021 Order lodged by W’s lawyers for the Court’s approval.   In the draft, H’s lawyers marked up their intended amendments in

red ink (“H’s variation request”).

77.  On 3/8/2021 (Tuesday), this Court replied to the letter dated 30/7/2021 as follows :-

“Please make proper application (if so advised and if necessary).”

78.  On 4/8/2021 (Wednesday), that is within 24 hours, H’s lawyers wrote to this Court again re-visiting H’s variation request.   As a matter of fact, W’s lawyers in the meantime had also written to this Court 5 letters dated 2/8/2021, 4/8/2021, 5/8/2021, 6/8/2021 and 11/8/2021, responding to H’s variation request made unilaterally(emphasis added); complaining H’s lawyers’ litigation conduct, both as to the absence of a proper Summons to seek variation even if so advised (despite that I have already directed) and also as to the absence of any material change of circumstances to seek variation.   W’s lawyers also attached in their letter dated 5/8/2021 The Law Society’s Circular 18-242 (PA) on “Family Proceedings Correspondence with Court” to support their complaint on H’s lawyers sending letters to me. 

79.  On 10/8/2021 (Tuesday), H’s lawyers wrote to this Court again, unilaterally (emphasis added) seeking directions by way of letter for an Updated Social Welfare Report/Memo to be obtained for the upcoming trial on 7/9/2021.

80.  On 13/8/2021 (Friday), H’s lawyers wrote to this Court (received with a stamp chop of “13/8/2021 at 12:50 pm.”) and attached with a draft Summons (“H’s Variation Summons”) seeking an “urgent” hearing to vary the time and mode of supervised access as per the 29/7/2021 Order.

81.  On 18/8/2021 (Wednesday), this Court replied to H’s lawyers’ letter in those terms set out above[34].

82.  Viewing the above chronology from any perspective, with the trial of H’s 2020 Summons starting from 7/9/2021, it could hardly be denied that H’s request as per his letter dated 13/8/2021 for an “urgent” hearing within the next 24 days (counting from date of letter of 13/8/2021to 6/9/2021, which was the date before 1^st day of trial including interveningSaturdays and Sundays) would only be considered under utmost urgencyand exceptional circumstances.   From reading H’s 11^th Affidavit in support of H’s Variation Summons, I failed to see any utmost urgency andexceptional circumstances existed which justify H “hijacking” the already limited court resources to the prejudice of other court users.  It is the underlying objectives of the Civil Justice Reform that court resources must be fairly and evenly distributed[35].    The Court must not yield to any monopoly or dictatorship of any particular litigant and compromised its case management powers and duties to do justice.

83.  It was submitted that I had “criticized/making unjustified comment” on H’s request to file H’s VariationSummons for his personal wishes and desires and that this was without basis and totally uncalled for[36].   With respect, this submission is a complete non-starter.   An expression of my observation upon reviewing the materials submitted (emphasis added) must not be taken as “criticism/making unjustified comment” over H personally. 

84.  It was also submitted that I refused to entertain H’s request for variation by sending over the 18/8/2021 letter[37] and, in so doing, I had been biased against H.   Reference was made about H having followed my indication/direction and within 6 days he arranged his helper to start working and this had been made known to me by letter.   Thus, it was said that my rhetorical query whether there was change of circumstances was unwarranted.

85.  Paragraph 1 of the 18/8/2021 letter must be read in context.   The words “…apart from the Respondent’s personal wishes and desire…..”

which came after the words “Please identify precisely” could have no other meaning or interpretation other than to pass on my observation of the application being lack of utmost urgency and exceptional circumstances for asking an “urgent” hearing.   The basis and the need for such expression of observation was to reinstate and reinforce the underlying objectives of the Civil Justice Reform which I said above.

86.  The rest of paragraph 1 of the 18/8/2021 letter was to amplify the obvious timeline which should not have gone astray in the mind of H.  This was far from any kind of “criticism/unjustified comment” against H.

87.  Paragraph 2 of the 18/11/2021 letter was stating the obvious by referring to H’s Variation Summons to vary the interim access arrangement before the end of the summer holidays (that is, 31/8/2021), which was a week even earlier than the 7/9/2021 trial, was unrealistic and even more impractical. 

88.  The short answer to all this complaint could be fairly summarized by asking one simple question :-

“Were all these intended variation of the interim access arrangement, granted on 29/7/2021 before the 4-day trial on custody, care, control and access scheduled to commence on 7/9/2021, was costs effective and practical ?”

89.  The answer to this question must be “No.”

90.  On 2/9/2021, H’s lawyers applied by letter and obtained leave on 3/9/2021 to file his Summons for variation of access. On 6/9/2021, H’s lawyers filed the Summons (the contents of which was not the same as the draft of H’s Variation Summons attached to the letter dated 13/8/2021[38]) and, with leave of this Court (emphasis added), it was scheduled for hearing the next day on 7/9/2021 at 9:30 a.m.   Such arrangement speaks volume.   Why would I grant leave for hearing this Summons just 4 days before if I am minded to refuse to hear H’s variation application complained by H as one of his grounds for seeking the recusal ?

91.  All in all, I find H’s Ground of complaint D2 unjustified.

Ground of Complaint – D3

92.  Complaint was levelled against me for vacating the September trial without parties’ input.

93.  Going back to the transcripts of the lengthy hearing on 30/6/2021 (from 9:36 a.m. to 12:29 p.m.)[39], I have already raised with the parties the possibility that the September trial may not proceed.At that hearing, Counsel Mr. Neal Clough appeared for W and Miss Yip, SC appeared for H.

94.  At 35S to 36T[40] where it was recorded :-

“Court :	Yes, okay.  So I decided that there will be no interim ouster order for the time being.  I hope the parents, Ms  ____ and Mr. ______, could or should tolerate with each other for the next four weeks, 29 July will be four weeks from now on.  And after 29 July, the trial commence in six weeks’ time.  So on the date, on the next hearing, 29 July, I need to review everything to see how things go, whether I need to make any urgent interim orders within the next six weeks or so.  And that’s my decision. Anything else, parties ?  Miss Yip and Mr Clough, Miss Chow ?
Mr Clough :	Costs reserved ?
Miss Yip :	So your Honour, just questions arising from the directions. Now that the September trial will proceed as fixed, would there be a final PTR whereby……
Court :	That’s why I put down 29 July.  It’s just …..it’s not for the further PTR for the father’s summons.  It’s for everything.
Miss Yip :	Yes
Court :	By that time I would have got the affirmations from both parties on the ouster application.  I would also have the short memo from welfare officer.  I made it on the 26th, three days before the 29th hearing.  And I review everything.  But for today, I will not make any temporary ouster order.  So that’s why I said the parties should tolerate with each other for the next four weeks and behave well before….. in front of the children.  And I believe they are sensible persons.
Miss Yip :	Yes.  Sorry for being thick here, I thought I heard that the September trial on care and control would go ahead, right ?
Court :	Yes.
Miss Yip :	Because, yes, I think between now and leading …..the leading time up to the first day of trial we need to do a lot of preparation.  I mean that’s what I want to clarify.  If it really goes ahead, then we’ll have to start preparing because, after all, there are a lot of materials to digest and so on.
Court :	Because we don’t know whether the officer will recommend Official Solicitor.  In case the officer recommends appointment and there may some …. a lot of changes because the Official Solicitor.  Then the trial might not proceed as scheduled (emphasis added), as you can expect.  I don’t know.  I’ll see how things go.
Miss Yip :	Yes.”

95.  Further, at the next hearing on 29/7/2021, which was a more lengthy hearing (from 2:33 p.m. to 8:31 p.m.), where I said[41] :-

“……I decided not to change the September trial to include the ouster for the time being because, well, I am not persuaded that the time arranged….. that the time scheduled will be enough for dealing with two applications together.  Of course, whether there will be any change in the trial dates after the appointment of the Official Solicitor, we have to wait and see.  If it is likely, I would only say it’s likely that the trial may not go ahead but I cannot say for sure, it all depends on the position of the Official Solicitor after they came…. joined into the picture.”

96.  On 25/8/2021, the OS, having been appointed by me on 29/7/2021 to represent the 2 children in these proceedings, reported to me that there are 4 outstanding matters which need to be addressed.  Briefly said, they are :-

(a)  The parties had not yet (emphasis added) arranged the elder child to attend 1^st psychological therapy by Professor Peter Lee so directed by me;

(b) Both parties had not yet (emphasis added) undergo psychiatric assessment/treatment with their own psychiatrist or psychiatrist appointed by the other party;

(c)  The parties had not yet (emphasis added) explore the possibility of placing the elder child with foster family as recommended by the SJE Miss Lora Lee; and

(d) An updated social investigation report may be required.

97.  Given the aforesaid outstanding matters, the OS expressed reservation that their Report to be prepared could properly and correctly reflect the true voice and best interest of the children.   Their Report would definitely have to be subject to the outstanding matters having been done.

98.  The OS was of the view that an adjournment of the trial for the parties to settle those outstanding matters would be more appropriate.

99.  As can be seen, 3 out of the 4 outstanding matters raised by the OS could only be carried out by the parties.   As the OS was representing the 2 children, their Report was crucial to assist me in determining the best interests of the children at the trial in September.   It was abundantly clear that there was no chance of the full OS Report could be ready in the next 13 days (counting from 26/8/2021 to 6/9/2021) before the September trial on 7/9/2021 starts.  I then decided to vacate the September trial.    

100.  H’s complaints against me included :-

- intentionally not copied OS letter to the parties[42];

- not copying the OS letter to the parties to invite their submissions[43];

- vacating the September trial without the parties’ input[44];

- prolonging the then access arrangement which minimized H’s involvement in the children’s lives which originally intended to last for only 5 weeks;

- adjourning a milestone date without offering the parties a chance to be heard, at least hearing H, by itself suggested bias on my part against H as he would be most adversely affected[45].

101.  OS’s concern of not able to prepare their full Report was clear and well founded.   H’s complaints that I “intentionally” did not copy the OS letter to the parties could only be justified, if and only if, it could be shown that had the parties received the OS letter, they could handle all the first 3 concern at once and that I wanted to prevent that to happen by not copying the OS letter to them; or affording them a chance to be heard, so to speak.   Taking H’s complaint to the highest, even if he could manage to “wipe away” (a) to (c) of those outstanding matters raised by OS, the updated social investigation report (item (d)) could not be dispensed with and would definitely not be available in 13 days’ time.    Hence, the OS Report would still not be available before the September trial commences.   That said, this was exceptional circumstances well justifying vacating the September trial as it was certain that the trial could not be proceeded along as originally scheduled.    

102.  The appointment of the OS by me to represent the children was never contested by the parties.  There was no appeal against such an appointment or against my direction requiring the OS to prepare their Report for the custody, care, control and access trial in September. 

103.  I failed to see what input could the parties provide had they been informed of the OS’s letter and the OS’s concern even if they were invited to provide submissions.I could foresee possibly there would be a further attempt by either or both parties to push for another so-called “urgent” hearing within the 13-day period between 26/8/2021 to 6/9/2021 under the disguise of tackling OS’s concern which apparently for no practical purposes other than increasing legal costs and “hijacking” the Court’s limited resources to the prejudice of other court users.  This was not a question of fairness to the parties or affording them the right to make submissions.    How could the parties manipulate OS’s concern by providing their submissions ?     

104.  To proceed or not to proceed with a trial is definitely a case management decision of the Court, the exercise of such discretion must be rested upon sound and justifiable grounds; especially, to vacate the milestone date of a 4-day trial.    For the above reasons, I firmly believe that the threshold for vacating the September trial was met without the need of any input by the parties now raised by H as one of his grounds seeking recusal.

105.  I do not see that an objective by-stander would conclude that there was any apparent bias or risk of apparent bias against H that the OS letter was not copied to them followed by vacating the September trial constituted bias which called for recusing myself.

106.  I find H’s Ground of complaint D3 unjustified.

Ground of Complaint – D4

107.  This complaint referred to what had happened at the hearing on 7/9/2021, the date originally scheduled as the 1^st day of the 4-day trial which had been vacated.   Nonetheless, the time slot at 9:30 a.m. was scheduled for hearing H’s Inter Partes Summons issued 1 day ago on 6/9/2021[46] for variation of interim access.

108.  There was the submission that at the hearing on 29/7/2021, I decided that the need of Rent-A-Mum together with Ms. S during H’s Supervised Access was to provide assistance.   By the time of the hearing on 7/9/2021, this was no longer required because H had employed his live-in domestic helper who had started work and might be able to provide assistance.   This was made known to me by H’s lawyers Withers in their letter dated 3/8/2021 (“Withers’s 3/8/2021 letter”).  Despite H had his live-in domestic helper, I decided that Rent-A-Mum and Ms. S was continuously needed.  If for any reason Ms. S was unavailable, I even directed that 2 Rent-A-Mum should be arranged.   H submitted that this was contrary from what I said at the hearing on 29/7/2021. Either my stance at the hearing on 29/7/2021 was merely lip-service and I had already viewed H with bias[47]; or I had changed my stance since 29/7/2021 and viewed H negatively based on newly formed bias[48].

109.  At paragraph 55 of H’s Written Submissions, it was further said that I had made highly prejudicial yet unwarranted remarks against H at the hearing on 7/9/2021.   For the sake of completeness, I reproduced below what I said with reference to the pages in the transcripts[49] :-

110.  At 50R to 51J of the transcripts, I said :-

“As to the father’s application for uplifting the supervised access arrangement by Rent-A-Mum, the reason put forward was that the father had all along been a caring and capable parent in taking care of the children.  This was seen and revealed by the Rent-A-Mum reports.  The father-child access requires no surveillance, no supervision by any third party.

I find there is an oddity in such a submission.  On the one hand, father  heavily relied upon the Rent-A-Mum reports to support his ability and  capability of taking care of [elder child and younger child] during access  in the past weeks.  Senior Counsel Miss Yip has taken the effort to take  me through a number of paragraphs in those reports prepared by Rent-A-Mum.

Having said, without the presence of the Rent-A-Mum during access in  the past, where would be the evidence to support the father’s own case  that he is a suitable carer of the children ?  Why would the father now be so concerned with the presence of Rent-A-Mum and would ask for uplifting the supervision arrangement ?  Would the father now want something to happen during access without being notified or recorded by any third-party witness, say, the Rent-A-Mum ?

As a matter of fact, there is no evidence before the court that the presence  of the Rent-A-Mum had obstructed or hindered or affected the access  which was reportedly to have happened smoothly.

I decided that the supervision by Rent-A-Mum and Ms. S should continue for this interim period until further order.”

111.  H complained that I had paid lip-service at the hearing on 29/7/2021 was unfounded when reading the transcript(s) of that hearing.  Within the 82-page transcript of the 6-hour hearing on 29/7/2021, the relevant parts on the use of Rent-A-Mum are as follows :-

112.  At 71C to 72C of the transcript[50] :-

“Miss Eu :	Well, can I assist in this matter ?  First of all, there is no issue of availability of Ms. S.  In fact, the Social Welfare Officer has already asked Ms. S and in fact this is also one of the recommendation of the Social Welfare Officer. And this is the line : “The investigating officer recommends that access should take place in a venue arranged by independent third party in the presence of Ms. S who can offer a sense of safety to both children.” So if you suddenly have a stranger from Rent-A-Mum without Ms. S, it’s not beneficial to the children. And the reason why there should be and Rent-A-Mum, and not just Ms. S, is because again, as you can see from the update, in the same report that I’m reading, both Miss __ and Mr __ consider that Ms. S is not the professional person in arranging and supervising the access if there is to be such arrangement.  Rent-A-Mum are professionals and they offer their professional advice in relation to supervised access. They’re expert in these things and that is why we suggested both, not to make any difficulties or to create a situation where one is available and not the other.  That is the recommendation from the Social Welfare Officer.
Miss Yip :	Then it is either/or.  Your Honour, let’s not ……
Court :	Because, Miss Yip…..
Miss Yip :	……create unnecessary trouble for the father’s access.  I mean he’s only got very limited access with the children starting this Sunday, from seeing the children every day to only every other day and limited to just a few hours.  And the trouble with – it would begin to give trouble.  What if the children really miss the father ?  Not what if; I’m sure the children will miss the father.
Court :	No, of course, Miss Yip, I think --- well, I think the Rent-A-Mum and the Ms. S will be taking the assisting role and not interfering or intervening in the access.  Because if you look at the time, for instance Saturday, 4 to 9 p.m., that covers dinner time and may be take a bath, I don’t know. How about if the daughter requires to take a bath and requires somebody to help ?
Miss Yip :	She is 9 years old and there is no…..
Court :	I don’t know, I don’t --- just in case.  Then when --- then Ms. S might help her, might help the daughter.  Then [elder child] would be with the father, then we need the Rent-A-Mum.
Miss Yip :	Your Honour, it’s not….
Court :	Just in case.”

113.  At 74T to 75F of the transcript[51] :-

“Miss Yip :	Your Honour, I do ask that the situation about renting --- about the arrangement of Rent-A-Mum be reviewed upon my client getting a new helper.  He will definitely try to get a new helper as soon as …
Court :	Yes, at least give the identity.  Because a new helper will be residing together --- at the same place, so at least the court gets --- court got more information.
Miss Yip :	Yes.
Court :	If there --- there’s no point to get so many people in the house.
Miss Yip :	But I want to put down as a marker that the situation will need to be reviewed once the domestic helper ….
Court :	You can always apply for variation, no worry (emphasis added).”

114.  As to H hiring a new domestic helper, this was revealed in “Withers’s 3/8/2021 letter”[52] to this Court as follows :-

“Pursuant to the directions made by the Learned Judge at said hearing, our client’s access to the Children shall be supervised by Ms. S and a representative from Rent-A-Mum. It was further commented that once our client employs a helper or nanny to assist him in looking after the Children, his access shall be supervised by Ms. S and his helperornanny in substitution for a representative from Rent-A-Mum. We are instructed that our client has now been able to employ a live-indomestic helper to assist him in looking after the Children and hisaccess which will start today 3 August 2021 can therefore beaccompanied by Ms. S and his domestic helper (emphasisadded).

We have already written to the Petitioner’s solicitors on 2 August 2021 to inform the Petitioner the address of our client’s new residence and the name of our client’s domestic helper. Our client also confirmed in the same letter that the names and identities of those residing in his residence  are the domestic helper and himself.”

115.  From reading the above, there are 3 important observations.

116.  First, nowhere in the above transcripts did I say or comment that once H hired a domestic helper, the then existing access shall be supervised by Ms. S and his helper or nanny in substitution for a representative from Rent–A-Mum.   The statement in “Wither’s 3/8/2021 letter” was utterly wrong.   What was actually said by me at the hearing, as per the transcripts, was : “You could always apply for variation, no worry.”

117.  Secondly, I also made it clear that I need to have more information about the new helper, at least the identity.   However, this was distorted in “Wither’s 3/8/2021 letter” when they simply said, “….as our client had now been able to employ a live-in domestic helperto assist him in looking after the Children and his access which will start today 3 August 2021 can therefore be accompanied by Ms. S and his domestic helper.”.

118.  Again, such statement distorted the meaning by removing the need to apply for variation before any replacement of Rent-A-Mum by the new domestic helper could take place.   If the new domestic helper could “automatically” replace the Rent-A-Mum without the need of application for variation (emphasis added), there was no reason for me to tell Miss Yip, SC that : “You could always apply for variation, no worry.”

119.  Thirdly, from reading the 2^nd paragraph of “Wither’s 3/8/2021 letter”, H was apparently under the misapprehension that :

(i) once he had hired a new domestic helper; and

(ii) once he had informed W his new place of residential address and name of the new domestic helper; and

(iii)  once he had informed W the names and identities of persons residing in his new place of residence,

what then follow would be the “automatic” replacement right away.  For the same reasons, why would I have to say “You could always apply for variation, no worry.”

120.  For the submission that I made unwarranted and highly prejudicial criticisms in my ExTempore Ruling on 7/9/2021, such submission was made completely out of context.   Miss Yip, SC had extracted 5 paragraphs from the transcripts in her Written Submissions[53] and underlined the 3^rd paragraph of it as emphasis for the alleged words of criticisms that I made.  The 3^rd paragraph starts with :

“Having said,………..”

121.  So, what did I say then ?   At the 2^nd paragraph, I made my observation of the “oddity” that H on the one hand apparently accepted the presence of Rent-A-Mum for the supervised access for the past weeks but now he sought to replace the Rent-A-Mum.  The 3^rd paragraph which follows was clearly a “self-serving remark” justifiably made in respect of the unexplained “oddity” which I observed in the preceding paragraph.   Clearly this was not prejudicial criticisms against H or any sign of bias towards him.   Further, such “self-serving remark” on the “oddity” was justifiably made given the assertive attitude of H to replace Rent-A-Mum with his domestic helper as stated in “Wither’s 3/8/2021 letter” to this Court.

122.  It was then said by Miss Yip, SC that my remarks of “neutrality” actually reinforced the bias that I held against H since there was no basis for continuation of supervised access when there was sufficient manpower assisting H during his access[54].    Further, Miss Yip, SC submitted that my agenda of monitoring H by Rent-A-Mum was reinforced by my decision that two Rent-A-Mum to assist in the supervised access in case Ms. S was unavailable[55].

123.  From reading the relevant part of the transcripts[56], it was Miss Yip, SC who raised the supervised access arrangement in case Ms. S was unavailable.   Following from there was the lengthy discussion with both Senior Counsel Miss Eu and Miss Yip.  The options discussed for substituting Ms. S in her absence include (i)  having the helper from W’s side; (ii) having the new helper from H’s side; or (iii) having another representative from Rent-A-Mum (see 64D to70F of transcripts of hearing on 7/9/2021)[57]. 

124.  At the end, option (iii) of having another representative from Rent-A-Mum was decided by me in order to avoid any unnecessary allegation of “snooping” by H or W through the domestic helper if option (i) or option (ii) was chosen to substitute Ms. S when she was unavailable.  From all perspective, choosing option (iii) was reasonable and fair to both parties.   The criticism of having an “agenda to monitor” H by Rent-A-Mum simply does not stand.

125.  I do not see that an objective by-stander would conclude that there was any apparent bias or risk of apparent bias against H for the arrangement that I have made on supervised access and substitution of Ms. S by a second Rent-A-Mum when she was unavailable.

126.  I find H’s Ground of complaint D4 unjustified.

Grounds of Complaint – D5, D6 and D7

127.  I intend to deal with these 3 grounds of complaint together as they related to the same matter of H’s intended Holiday Summons. 

128.  A short description of the chronology and matters arising is useful.

129.  On 8/11/2021 (Monday), H’s lawyers wrote to this Court attached with (i) a draft of the Holiday Summons; and (ii) a copy of the 13^th sworn Affidavit of H together with 8 exhibits.   There was a chop on this letter by the Family Court Registry that it was received at 9:53 a.m. on 9/11/2021.

130.  The 13^th Affidavit of H together with the 8 exhibits added up to 135 pages.

131.  In this letter, H requested for the Holiday Summons to be listed for hearing on 15/11/2021 (that is, in 7 days’ time) which was the call over hearing of H’s Committal Summons against W.It was said in the letter that the parties had agreed on directions for the Committal Summons and the hearing on 15/11/2021 would be vacated.  However, no Consent Summons had been filed (emphasis added) at that stage.

132.  At 4:51 p.m. on the same day of 9/11/2021 (that is, 7 hours later) another letter was received from H’s lawyers for an Ex Parte Summons (On Notice) about schooling issue of the elder child.   Such Ex Parte Summons (On Notice) was dealt with the following date, that is, 10/11/2021 and fully disposed of.

133.  On 9/11/2021 (Tuesday), this Court replied to H’s lawyers’ letter as follows :-

“1.	The hearing on 15/11/2021 still stands for directions on Respondent’s Committal Summons;
2.	The Intended Summons should be scheduled for call-over hearing on separate date.”

134.  On 10/11/2021 (Wednesday), H’s lawyers again wrote to this Court and this letter was received at 3:26 pm in the afternoon.   Despite my directions in reply made on 9/11/2021 for the Holiday Summons to be listed for hearing separately, H’s lawyers still insisted to use the date of 15/11/2021 (Monday) to hear the Holiday Summons.

135.  In this letter, it was attached with a copy Consent Summons with a filing date of 10/11/2021 to vacate the hearing on 15/11/2021 for H’s Committal Summons, along with agreed directions on exchange of affidavit evidence, and that a hearing for substantive argument be fixed in consultation with Counsel’s diaries (1 day reserved).    It was again attached the draft of the Holiday Summons and the copy 13^th sworn Affidavit of H together with the 8 exhibits.

136.  On 12/11/2021 (Friday), this Court granted an order in terms of the said Consent Summons in respect of H’s Committal Summons. The hearing date of 15/11/2021 was accordingly vacated.

137.  On the same day of 12/11/2021 (Friday), given the fact that various factual issues were raised by H in his 13^th Affidavit, this Court replied to H’s lawyers’ letter as follows :-

“Please seek consent from Petitioner’s Solicitors and Official  Solicitors as to their readiness.”

138.  On 15/11/2021 (Monday), H’s lawyers approached the Listing Officer of the Family Court to request for the Holiday Summons to be listed for hearing on the next available date, which was said to be 13/12/2021. However, it was noted that what was prayed for in paragraph 6 of the Holiday Summons was that the application be dealt with by way of paper disposal.    In the absence of clarification from H’s lawyers, no date was arranged by the Listing Officer.

139.  On 19/11/2021 (Friday), still not received any clarification from H’s lawyers, this Court sent to H’s lawyers (by facsimile at 9:40 a.m.) on my comments/directions granted on 17/11/2021 as follows :-

“1. Paragraph 6 of the Intended Summons sought for the application to be dealt with by way of paper disposal. Hence, no date should be fixed for the Intended Summons.

2. However, the reliefs prayed for in the Intended Summons wouldnormally have to be dealt with through hearing instead of paper disposal.

3. Moreover, it is noted that a CDR has not been fixed for 8 March 2022 at 10:30 a.m. (1 day reserved) for Respondent’s Summons dated 2/9/2021. Please substantiate the urgency (if any) for Intended Summons to be issued now.”

140.  On the same day of 19/11/2021 at 3:53 p.m., H’s lawyers wrote back to this Court and again requested for the Holiday Summons to be listed for hearing on 13/12/2021.   It was also said if the date of 13/12/2021 was no longer available, the Holiday Summons be dealt with by way of paper disposal.

141.  On 25/11/2021, this Court replied to H’s lawyers’ repeated requests as follows :-

“Please refer to Paragraph 3 of Chapter 10.02 of the Hong Kong Solicitors’ Guide to Professional Conduct Volume One.”

142.  On 30/11/2021, H’s lawyers again wrote to this Court, briefly setting out their contact with W’s lawyers and the Official Solicitor’s Office as to their readiness and, further making the same request of listing the Holiday Summons for hearing on 13/12/2021 or to be dealt with by way of paper disposal. 

143.  On 6/12/2021, this Court replied to H’s lawyers’ as follows :-

“1. Hearing date on 13 December 2021 no longer available.

2. Please seek consent from all parties on other options for the  Intended Summons.”  

144.  On 8/12/2021, H’s lawyers wrote back to this Court bombarding with the same request for the Holiday Summons either to be heard as soon as possible or by way of paper disposal given the “urgency” of the application.

145.  Notwithstanding the fact that there was already in place increased (emphasis added) interim weekday access on every Tuesdays, Wednesdays, Fridays and Saturdays (emphasis added) totaling 4 days within a week[58] and that such pattern of interim access also run through the Christmas and Chinese New Year holidays until further order, the “urgency” raised by H as per his Holiday Summons, amongst others, was simply extended hours on weekday access over the first half of long holidays, 1 overnight staying access from 22/12/2021 to 23/12/2021; 1 overnight staying access from 4/2/2022 to 5/2/2022; dinner access on 31/1/2022; day access on 1/2/2022.    The original interim access was on every Tuesdays, Thursdays and Saturdays, that is only 3 days within a week[59]. 

146.  On 10/12/2021, this Court sent to H’s lawyers on my comments/directions granted on 9/12/2021 as follows :-

“1.	Your letter refers.
2.	The so called “urgency” for hearing the Intended Summons prior to commencement of the coming Christmas school holiday on 21/12/2021 was based upon the Respondent’s personal wish, aspiration and/or manipulative and/or assertive manner of conducting litigation as opposed to any legitimate juridical grounds considered objectively.
3.	Given the limited resources and valuation time of the Court, bombarding requests for immediate or short-notice hearing under the disguise of “urgency” should be refrained as such requests would not be considered by the Court.
4.	Paragraph 2 of the Court’s directions dated 6/12/2021 was to ensure all other parties were given the fair chance and option(s) of expressing their views over the way to dispose of the Intended Summons and not directing them to concede to the reliefs within the Intended Summons.”

147.  With the above short description of the chronology fully reviewed and carefully considered, there was every justification for the Court to uphold procedural fairness and ensure resources are evenly distributed amongst other court users.  To express the Court’s concern by giving a stern warning over H’s clear manipulative litigation conduct with the view to prevent the Court’s agenda and diary being steamrollered and hijacked could not be said to be casting criticisms against H or being biased upon him.

148.  In Miss Yip, SC’s Written Submissions, it was said that I had made a Grepe v Loam order or a Restricted Application Order against H which was clearly unwarranted and unjustified[60].   With all respect, this was a non-starter.   It was clear from the above short description of the chronology, that there was no clarification from H’s lawyers as to why they requested to list a hearing date for the Holiday Summons whilst, in paragraph 6 therein, he sought for the application to be dealt with by way of paper disposal.   

149.  Apparently, the either “listing a date” or “by way of paper disposal” of H’s Holiday Summons was only clarified in H’s lawyers’ letter dated 19/11/2021 after such conflicting scenario having been raised by this Court by letter on the same day[61].   This was not a case of any Grepe v Loam order in any perspective.

150.  The submission of this Court (indirect) pre-mature dismissal of H’s Holiday Summons by using my case management power[62], with due respect, was also a complete non-starter.   The legal teams are expected to ensure the terms of the application are clear and unambiguous.   Seeking a

date of hearing before the Court of an application when simultaneously asking for the application to be dealt with by way of paper disposal is clearly unclear and ambiguous which called for clarification.

151.  Had a Grepe v Loam order or a Restricted Application Order been made against H, the Court would not have sent the letter to H’s lawyers dated 19/11/2021[63].

152.  I do not see that an objective by-stander would conclude that there was any apparent bias or risk of apparent bias against H for the arrangement of his Holiday Summons. 

153.  I find H’s Grounds of complaint D5, D6 and D7 unjustified.

Directions as to the potential hearing date of 15/11/2021

154.  It was said that I had taken away H’s opportunity to be heard timely on 15/11/2021 by :-

- asking H to check with W for consent and on their readiness for the hearing on 15/11/2021;

- in so doing, giving W the veto power to refuse H’s opportunity to be heard when W refused to give consent to the 15/11/2021 hearing be used by H, this

- was within my reasonable contemplation given this is a high conflict case.

155.  It is trite that procedural fairness must not be compromised to a party’s preference.   According to the aforesaid short description of the chronology, it was only on 8/11/2021 that H’s lawyers requested to make use of 15/11/2021 hearing for his Holiday Summons, a date which had yetto be vacated (emphasis added).   On that day, there was no Consent Summons before me to vacate the hearing scheduled for H’s Committal Summons.   This caused the Court to send over the letter of reply on 9/11/2021[64].

156.  When the hearing on 15/11/2021 (Monday) was vacated on 12/11/2021 (Friday) by the Order granted in respect of the Consent Summons[65], there was only 2 days left over the weekend.   From any perspective, it would be procedural unfair for W to tackle with H’s 13^th Affidavit and the 8 exhibits (adding up to 135 pages) over the weekend within 48 hours.  

157.  The direction to H to seek consent and check on readiness with W and Official Solicitors (representing the children) was granted, from any objective views, on all fairness to H to secure his right and chance to be heard (if W and OS are ready) rather than rejecting outright his opportunity to be heard on 15/11/2021.

158.  There was no basis for an objective by-stander to conclude that there was any apparent bias or risk of apparent bias against H on granting the orders/directions in respect of the potential hearing date of 15/11/2021.   

Directions on 9/12/2021

159.  The directions granted on 9/12/2021 had been set out in paragraph 144 of this Decision.   H submitted that this Court’s directions simply refused to hear H’s Holiday Summons for the reason of lack of urgency[66].

160.  On 15/12/2021, H’s lawyers wrote back to this Court in response to the said directions and, insofar as the Holiday Summons was concerned, it was said :-

“In the premises, even if this Court considers the application is not urgent, could we seek the Learned Judge’s permission for our client to file his Intended Summons and have it fixed the usual way (i.e. by allowing the Listing Officer to provide our client the first available return date)?”

161.  I failed to see what H was addressing upon.

162.  It was not necessary to seek for permission to issue Summons if it was done in the usual way.  Why would H’s lawyers said in their letter that they would seek my permissions is a complete mystery.   As a matter of fact, they chose not to issue the Holiday Summons after their letter of 15/12/2021.   Hence, it was utterly wrong to say that H was not even allowed to take out the Holiday Summons in the usual way.   There is no room for H to be able to shift his fault, hopefully not misunderstanding of the simple procedure of issuing Summons in the usual way requires no permission to do so (emphasis added), into a blame on me to support his recusal application.

163.  This part of H’s complaint was completely groundless and unsubstantiated.    

164.  Finally, in the case of Locaball (UK) Ltd v Bayfield Properties Ltd &Another (unreported PTA 1999/6041-42) the Court of Appeal in England was of the view that a judge should not yield to tenuous or frivolous objection on the ground of bias to recuse himself from hearing a case.  It found force in the views expressed by Mason J in the Australian case of Re JRL ex parte CJL (1961) 161 CLR 342 :

“Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualifications of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

Decision

165.  For all the above reasons above, I decided that H’s Recusal Summons dated 30/12/2021 (filed on 3/1/2022) fails.

166.  All applications pending this Decision could now be restored on giving the other party 48 hours’ notice in writing.   Upon restoration, parties may approach the Listing Officer for arrangement of hearing date(s) in the usual way.

Costs

167.  Given the fact that H completely fails in his application, it is fair and reasonable for him to bear W’s costs of and occasioned by his application, including all costs reserved (if any).

168.  And I will so order. 

169.  I will also grant Certificate for one Counsel.

Orders

170.  I now grant the following orders :-

(a)  H’s Summons dated 30/12/2021 (filed on 3/1/2022) be dismissed;

(b) H do pay to W the costs of and occasioned by his application to be taxed; if not agreed, and

(c)  There be Certificate for one Counsel.

171.  This is a costs order nisi which would become absolute if no application to vary the same was filed within 14 days from the date of this Decision.

172.  Last but not least, I wish to thank Senior Counsel, junior Counsel and the legal teams for both parties for their valuable assistance to this Court.

[1] A1/1-3

[2] A1/4-14

[3] A1/15-59

[4] A1/60-77

[5] B4/902-910

[6] B1/1 - 83

[7] See §24 of this Decision

[8] See §28 of H’s Written Submissions

[9] See §7 of the Update Memo

[10] See §8 of the Update Memo

[11] See 68L to 68M of the transcript

[12] See 68N of the transcript

[13] See 68O to 68P of the transcript

[14] See 68S of the transcript

[15] See 70I of the transcript

[16] See 70J of the transcript

[17] See 70K to 70M of the transcript

[18] See 70N of the transcript

[19] See 70O of the transcript

[20] See 70P of the transcript

[21] See 70Q of the transcript

[22] See 70S of the transcript

[23] See 70S to 71C of the transcript

[24] See 72S to 73C of the transcript

[25] See 74T to 75A of the transcript

[26] See 75B to 75C of the transcript

[27] See 75E to 75F of the transcript

[28] See 75G of the transcript

[29] See §10 of this Decision

[30] See §§30 to 33 of H’s Written Submissions

[31] See 63M to 63O of the transcript

[32] See §31 of H’s Written Submissions

[33] See §32 of H’s Written Submissions

[34] See §73 of this Decision

[35] See Order 1A rule 1 of the RHC

[36] See §41 of H’s Written Submissions

[37] See §40 of H’s Written Submissions

[38] See §80 of this Decision

[39] B3/543 to 580

[40] See B3/578 to 579

[41] B1/65E to 65I

[42] §47 of H’s Written Submissions

[43] §48 of H’s Written Submissions

[44] §48 of H’s Written Submissions

[45] §50 of H’s Written Submissions

[46] See §90 of this Decision

[47] See §56b (iii) of H’s Written Submissions

[48] See §56b (iv) of H’s Written Submissions

[49] See B1/243 to 244

[50] See B1/72 to 73

[51] See B1/75 to 76

[52] See Exhibit “SYH-17-4” of H’s 17^th Affidavit

[53] See §110 of this Decision

[54] See §58 of H’s Written Submissions

[55] See §59 of H’s Written Submissions

[56] See B1/257 to 263

[57] See B1/257 to 263

[58] See §9(a) and (b) of Order dated 7/9/2021

[59] See §7 of Order dated 29/7/2021

[60] See §63 of H’s Written Submissions

[61] See §§138 to 139 of this Decision

[62] See Ground of complaint D7

[63] See §139 of this Decision

[64] See §133 of this Decision

[65] See §136 of this Decision

[66] See §87 of H’s Written Submissions

FCMC 4633 / 2020

[2023] HKFC 94

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4633 OF 2020

----------------------------

----------------------------

-------------------------

D E C I S I O N
(Rule 121 of MCR, Cap.179A)

-------------------------

General Background

1.  The Petitioner is the wife (“W”) and the Respondent is the husband (“H”).   Parties married with each other on 28/9/2007.   There are 2 children born out of the marriage, a boy in 2009 and a girl in 2012.

2.  On 29/9/2017, W filed a Petition for divorce on the fact of “Unreasonable Behaviour” under FCMC No.12797/2017.  These divorce proceedings ended up with the consensual arrangement that a fresh petition for divorce on “Two Years Separation” to be filed.

3.  On 9/6/2020, W filed the Petition for divorce on the fact of “Two Years Separation”.   Decree Nisi was granted on 8/6/2021. Questions of custody and ancillary reliefs were adjourned for further disposal. 

4.  By an Order dated 29/7/2021, interim care and control of the 2 children was granted to W.  Interim defined and supervised access was granted to H which involved the services of “Rent-A-Mum” during the defined access.

5.  By an Order dated 7/9/2021, the interim defined and supervised access arrangement was varied on some logistics as to the time and place of pick up and return of the 2 children.

6.  Suffice it is to say that the parties are persistently in high-conflict momenta over children’s matter; in particular, over the elder child who was at the age of 12 in 2021.   

7.  There are various interlocutory application(s) which was pending to be resolved as a result of H having taken out a recusal application and the decision of which was pending (“Recusal Decision”).   Those “yet-to-resolve” interlocutory application(s) would be disposed of after the Recusal Decision was available.   H was seeking that I should recuse myself from further handling these proceedings.   

Chronology of events leading to W’s application

8.  On 26/4/2023, W’s lawyers Messrs. Ho & Ip (“HI”) wrote to the Duty Judge of the week (who was then Deputy Judge J Cheung) seeking an urgent date to be listed for hearing W’s application under Rule 121 of the Matrimonial Causes Rules, Cap.179A (“MCR”) and the inherent jurisdiction of the Court (collectively called the “Rule 121” application).   Attached with the letter was a draft of the Summons and the 17^th Affidavit of W sworn on the same day.   The letter was marked to copy to my clerk and H’s lawyers Messrs. Withers (“Withers”).

9.  In broad terms, W’s Summons sought for :

“General leave be granted to the Petitioner to use, produce and/or refer to

the documents and/or information disclosed or filed in the present proceedings under FCMC 4633 of 2020 and FCMC 12797 of 2017 and correspondences relating thereto and to provide the same to MRL for defence of the criminal charges in HKSAR v MRL under ESCC 108 of 2023 at the Eastern Magistrates Court.

The Petitioner be released from any implied undertaking in relation to the   abovementioned documents and/or information for the purpose stated in    the above.”

10.  On 27/4/2023, this Court granted directions as follows :-

“Please provide a schedule listing out which documents, information and correspondence in FCMC 4633/2020 and FCMC 12797/2017 sought to be disclosed in the said ESCC case.”

11.  On 28/4/2023, HI wrote in reply and attached with a 3-page schedule of documents categorized under different headings, namely, (A) Pleadings; (B) Affidavits; (C) Summonses; (D) Orders; (E) Reports; all of which in total 49 items (collectively called “the Documents”).

12.  On the same day, that is 28/4/2023, Withers wrote to HI and copied to this Court regarding HI’s requests made to this Court for issuing the intended “Rule 121” application where they said :-

-  Delay of HI in copying to them the letter dated 26/4/2023 sent to the Family Court until after this Court granted the directions on 27/4/2023.  They only received HI’s letter and attachment(s) at 1740 hours on 27/4/2023; and

-  The need of confidentiality to safeguard the privacy of parties in proceedings in the Family Court; protection of intimate disputes also involving private evidence especially when young children are involved.

13.  On 2/5/2023, Withers wrote to this Court stating their preliminary views on W’s intended “Rule 121” application where they said :-

-  As per HI’s schedule of documents, W was seeking disclosure of the majority of documents in the divorce proceedings which they estimated taking up approximately 10 bundles.  W was only making a blanket request and not answering this Court’s memo of directions dated 27/4/2023;

-  In light of the pending “Recusal Decision”, whether it is appropriate for this Court to hear and determine W’s intended “Rule 121” application;

-  H should be afforded sufficient time to prepare his response to W’s request for leave.  It concerns children and their privacy.  W’s application needs to be properly heard and not deal with in any rush manner.  It was W who chose to issue the application very late.

14.  This Court was informed by HI that there was a 3-day trial in the criminal case of ESCC 108 of 2023 commencing 17/5/2023 at the Eastern Magistracy which called for the urgency of dealing with W’s intended “Rule 121” application.

15.  On 5/5/2023, this Court arranged a 30-minute hearing for W’s Summons for the “Rule 121” application.   Specific directions were granted on the exchange of written submissions and the time allotted for oral submissions (if any) by each party within the 30-minute hearing.

16.  Parties’ legal teams complied with the directions given by this Court and produced their respective written submissions. In their submissions, each side referred to one authority as directed by this Court.  W referred to the unreported case of DJ v LRM, FCMC No.8507/2013.  H referred to the Court of Appeal decision in Secretary for Justice v FTCW[1].

The statutory provisions and related cases

17.  Rule 121 of the MCR provides :-

“121. Inspection etc. of documents retained in court

(1) A party to any matrimonial proceedings or his solicitor or the Secretary for Justice may have a search made for, and may inspect and bespeak a copy of, any document filed or lodged in the registry in those proceedings.

(2) Except as provided by rules 47A(3) and 95(3) and paragraph (1) of this rule, no document filed or lodged in the registry, other than a decree or order made in open court, shall be open to inspection by any party without leave of the court, and no copy of any such document, or of an extract from any such document, shall be taken by, or issued to, any person without such leave.”

18.  Matrimonial proceedings are largely private in nature.  The rationale of Rule 121 was for the protection of the parties involved in the matrimonial proceedings.   The documents filed in such proceedings shall not be disclosed in public unless leave of the court seized with the matrimonial proceedings has been obtained:  see Horst Joachim Franz Geicke v I-Onasia Ltd, HCA 2379/2009, 17 October 2011 §32, per DHCJ Lok (as he then was).

19.  In the case of Li Lihong v Choi Tung Chi & Anor[2], where it was said by DHCJ William Wong, SC., at paragraph 6 :-

“The proper forum to seek leave for the use of the documents covered by MCR Rule 121(2) and the implied undertaking …..……. is the Family Court (see Nayler v Beard [2001] 2 FLR 1346 per Wilson J (as he then was) at para 25 and per Hale LJ (as she then was) at para 49). The rationale of such practice is that the other party to the family proceedings (here, Mr Chan) should be allowed a voice in the debate, and this voice is likely going to be given proper attention in proceedings to which he is a party.

20.  In the unreported case of Wong Kwok Hin v Wong Lai Fan & Anor, date of decision: 13/6/2001, where Hon P. Cheung J (as he then was) had said :-

“2.  Rule 121 of the Matrimonial Causes Rules provides that a party to any matrimonial proceeding may, among other things, bespeak a copy of   any document filed in the registry of those proceedings.  As to non-  parties, Rule 121(2) provides that : “Except as provided by Rules 47A(3)   and 95(3) and paragraph 1 of this rule, no document filed or lodged in the  registry other than a decree or order made in open court, shall be opened to inspection by any person without leave of the court, and no copy of     any such document, or of an extract from any such document, shall be  taken by or issued to, any person without such leave,”

3.  The provisions of Rules 47(A)(3) and 95(3) are not relevant to this case.  By virtue of Rule 121(2), the affirmation is clearly confidential in    nature and intended to be so.

4.  ……

5.  ……

6.  Phipson on Evidence 15^th Edn, at para.22-07 stated that “..….once affidavit has been served and filed, it would have been hard to imagine     that it was possible to assert a claim for privilege even against the third party in subsequent proceedings.”   And also, “No implied undertaking      arose in the case of an affidavit once served not to use it for collateral    purpose, save in those situations where the affidavit will require for a   compulsion, where it was established that undertaking not to use the     affidavit for collateral purpose would be implied.”

7.  In my view, affirmations filed in matrimonial proceedings must      be subject to special treatment because of the terms of Rule 121(2).  It     would be absurd if a non-party which had not obtained leave in the first   place to inspect or copy the documents would nonetheless be able to use    the documents in subsequent proceedings as if Rule 121 does not exist.     (emphasis added).

8.  There were cases in which documents relevant to family  proceedings were supplied to a third party by either the immediate parties   or their privies in the matrimonial proceedings, examples are, Medway v  Doublelock Ltd [1978] 1 All ER 1261, where the wife in a matrimonial      proceeding supplied her husband’s affidavit of means to parties who were  engaged in litigation with the husband; S v S [1997] 3 FCR 1 and R v R   [1998] 1 FLR 922 are cases where the Inland Revenue received documents     of family proceedings in which there was evidence that the husbands had    under declared their income.  The court in these cases had to consider the     nature of the case before deciding whether the third party could make useof the documents. (emphasis added)

H’s point of concern

21.  Before giving consideration to W’s application substantively, it is pertinent for me to first address the concern of Withers as stated in their letter dated 2/5/2023[3] (although such concern was no longer raised in the written submissions dated 8/5/2023 by Senior Counsel Miss Anita Yip S.C. leading Mr. Ken Chan or at the oral hearing) about the suitability for me to hear and determine W’s “Rule 121” application in light of the “Recusal Decision” was pending.  

22.  In the case of Secretary of Justice v FTCW & Anor[4] which is a case on appeal by the 2^nd to 4^th defendants against an order granting access to the Secretary of Justice to inspect and take copies of documents which had been filed or lodged before the trial judge Saunders J in matrimonial proceedings HCMC 5 of 2008 and also in the case of HCA 566 of 2010.

23.  The learned trial judge had also released the 1^st defendant (the wife in the matrimonial proceedings) from her implied undertaking in HCMC 5 of 2008 for disclosing to and discussing with the Secretary of Justice and the Police on documents; in particular, an “Agreement for the Grant of a Loan Conversion Option” which may be required in the course of criminal investigation.   

24.  At paragraphs 16 to 19 of the judgment, Hon Lam VP (giving the judgment of the Court of Appeal) said :-

“B. The jurisdiction to grant access

11. …..

12. …..

13. …..

14. …..

15. …..

16. In our judgment, it is clear before peradventure that the court has inherent jurisdiction to control access to the documents placed in its custody in relation to legal proceedings, whether they are filed in accordance with the rules or produced as exhibits during the course of proceedings or simply lodged with the court or handed up to a judge by the parties for the purpose of the legal proceedings. Since control would include the power to restrict as well as the power to grant access. Whilst there are different rules governing specific areas of this power in the Rules of the High Court, e.g. Order 35 Rules 12 and 13 and Order 63 Rules 4 and 9, as well as the Matrimonial Causes Rules (Rule 121), they are not a comprehensive code. They only represent some facets of the general power of control exercisable by the court over access to documents within its custody. We do not accept the submission that those rules have the implied effect of abrogating any common law power of the court in granting or restricting access to documents. A similar contention based on rule 5.8 of the Criminal Procedure Rules 2011 were rejected by the English Court of Appeal in the Guardian News case. In that case, Toulson LJ considered the power to grant access as an incidence of open justice. Whilst we are in respectful agreement with that analysis, the underlying rationale for the exercise of such inherent power can also be explained by reference to the nature of the judicial process, which is of greater relevance in the context of the present appeals.

17. One significant difference between the adjudication of a dispute by a court of law and the resolution of such dispute by other means like arbitration or mediation is that the exercise of judicial power is one with public authority. The judicial process is a coercive one, meaning that it is not a consensual process. Rather a judicial decision is backed up by sanction imposed by a public authority. An order or a judgment of the court can be enforced coercively by means which are not available to other

private dispute resolution mechanism.

18. There is another facet to this public character of the judicial process: it is not up to the parties to decide consensually what the rules are. They have to follow the rules in the relevant set of rules of court and other directions given by the court in the conduct of their litigation. That is so irrespective of whether the court hears a case in open court or, like most first instance hearings in family cases, hears a case in chambers not open to public. The parties do not have control over the process. Thus, once a document has been filed, lodged or otherwise placed in the custody of the court, a party has no control over its use. Whilst he or she might advance submissions to the court as to whether there should be restriction on the access to the document, he or she cannot withdraw the document unilaterally. Nor can he or she dictate the terms as to which the document is supplied to the court. This does not mean that the court can exercise its control over the document arbitrarily. But it does have the power to determine to whom access should be given in respect of a document and to regulate the manner in which such access should be exercised.

19. Though the documents are sourced from the parties (or witnesses), once they come into the possession and custody of the court, they are   subject to the power of the court in terms of access to the same.  The court  does not exercise its power of possession or custody on behalf of the   person from whom the document is supplied.  The court has possession and custody of the document as part of the judicial process and it exercises   its power of control over the document with reference to the interest of   that process.  Whilst the primary interest of the process is the fair    adjudication of the dispute, the court also has a duty in safeguarding the     integrity of the process.”

25.  It is clear from the above that W’s present application falls within the judicial process of this Court to exercise its power of control over documents in its possession and custody.   This is in stark difference from this Court adjudicating upon the parties’ respective reliefs ‘vis-à-vis’, financial or otherwise, in these matrimonial proceedings. It is only in the latter scenario that the “Recusal Decision” was pending would be a matter of concern.  

26.  Moreover, it is trite that the filing of a recusal application against the judge in charge of a case and the decision of such recusal application was pending does not operate as a stay of the proceedings in respect of which the recusal was sought.   More importantly, the fact that there was a pending decision on recusal does not abrogate or inhibit the judge’s function or power to exercise control over access to the documents placed in its possession and custody in the proceedings.

27.  This is in analogy to cases of appeal whereby the filing of a Notice of Appeal or an application seeking leave to appeal does not, insofar as the proceedings are concerned, (i) operate as a stay of the decision being appealed against; and (ii) change or alter the state of the proceedings from where it last stands.

28.  In Withers’ letter dated 2/5/2023[5], it also referred to this Court’s decision at the last hearing to “adjourn” all of H’s parallel application(s) for the interim.    With respect, this was not the record of the Court.   There was no Order granted at the last hearing to “stay” these proceedings ending up with “adjourning” all of H’s parallel application(s) in the interim.   Nor was there any standalone adjournment order made at that hearing.   It was, however, a case management direction/decision that, in light of H’s recusal application being lodged in parallel to his other interlocutory application(s), it was usual and proper for all of H’s parallel interlocutory application(s) in the interim to be dealt with (emphasis added) after determination of H’s recusal application in order to see how things go.   This was so decided at the previous hearing.   With respect, it was incorrect, if not being unfair, to mis-interpret the situation as if this Court had made an order to “adjourn” all of H’s parallel interlocutory application(s) at that time but nonetheless deals with W’s application at this time.

29.  Being the docket judge overseeing the background of this case, and with a full picture of the many “yet-to-resolve” interlocutory application(s) in abeyance, I believe it is most suitable and proper for me as the docket judge to deal with W’s present application.  This would also be fair to the Duty Judge who quite often was required to seize upon a case on short notice. 

30.  Since Withers’ concern on this aspect was not taken further in their Counsels’ written submissions and at the oral hearing, I shall say no more on this.

The Balancing Exercise

31.  On top of Rule 121 of the MCR, the Family Court has the general power of control over access to documents within its possession and custody at common law (emphasis added), and the exercise of the inherent jurisdiction is subject to a balancing exercise in terms of weighing the relevant conflicting interests and rights: see Secretary for Justice v FTCW & Ors [2014] 1 HKLRD 849, at §§ 16, 27-28, per Hon Lam VP.

32.  In the Secretary for Justice v FTCW case (supra), the 2^nd to 4^th defendants in the case appealed against an order of the Court of First Instance granting leave to the Director of Public Prosecution (“DPP”) to inspect and take copies of documents which had been filed or lodged in the matrimonial proceedings HCMC 5 of 2008 and HCA 566 of 2010 for the purpose of carrying out criminal investigation.   The wife in the matrimonial proceedings was also released from her implied undertaking as to confidentiality for the sole purpose of disclosing to the Secretary of Justice and the police such documents as may be required for the criminal investigation.

33.  At paragraph 114 of the judgment, Hon Lam VP said :-

“E. The balancing exercise

114. After due consideration on the principal grounds of the Husband and STL to resist access being granted by the court to the Director, we can now come back to the balancing exercise. We repeat para 85 of Guardian News in which Toulson LJ set out the approach for balancing conflicting factors :

“In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons…..…I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose ofthe open justice principle, the potential value of the material inadvancing that purpose and, conversely, any risk of harm whichaccess to the documents may cause to the legitimate interests ofothers.” (emphasis added)

34.  As regards the scope of documents that are subject to the implied undertaking, it was said in Matthews & Malek, Disclosure (5^th Edn 2017) at 19.11 to 19.14 the following :-

“At common law the undertaking covers not only documents disclosed on discovery, but also any other documents disclosed by a party under compulsion of court process. Thus the undertaking has been held to apply to documents produced under a subpoena duces tecum, or under the Norwich Pharmaceutical procedure, or under an order made pursuant to s.7 of the Bankers’ Books Evidence Act 1879, or for the purposes of detailed assessment of costs, or under the procedure for giving effect to letters of request, as well as affidavits and exhibits produced only because the court has ordered them to be provided by way of discovery of assets pursuant to the asset-freezing (Mareva) jurisdiction or a search (formerly Anton Piller) order, or in matrimonial proceedings. The undertaking also extends to information in Lists of Documents given on discovery as well as to the documents themselves. It has even been held to apply beyond documents, but where an equivalent process of compulsory disclosure has been used by the court to order inspection of a machine or tests on samples, and, in Canada, to transcripts of oral discovery examination…..

The undertaking also applies to information supplied under the NorwichPharmacal procedure. Similarly, r.31.22 applies to documents disclosed as a result of a Bankers Trust/Norwich Pharmacal order. But where the court making the original order is alerted to the possibility of subsequent proceedings (whether in this jurisdiction or some other) the court must be taken to have consented to the use of any documents obtained under the order in those subsequent proceedings.

The undertaking does not apply to documents voluntarily disclosed, such as affidavits and exhibits put in voluntarily and not by any order of the court in opposition to an application for asset freezing (Mareva) relief, or in support of a strike out application. This is consistent with the rationale of the implied undertaking. In relation to documents voluntarily disclosed, the court has not invaded the privacy of the party; it is the party himself who has destroyed the privacy of the documents. Nor does the undertaking apply to documents or information which belong to the claimant who recovers them as a result of the execution of a “search and seize” (Anton Piller) order. More curiously, it seems that it does not apply to information disclosed pursuant to an interim receiving order under the Proceeds of Crime Act 2002.”

35.  So much has been said on the law and legal principles, I will now move on to the substantive reasons put forward by W for her “Rule 121” application.

W’s application in context

36.  In her 17^th Affidavit, W deposed that her domestic helper MRL was charged by the Police for 3 counts of “common assault” of which H was the alleged victim.   MRL was facing a 3-day trial in the Eastern Magistrates’ Court in less than a month’s time commencing 17/5/2023 (the “Criminal Proceedings”).   All the offences were said to have taken place in 2020 and 2021 at the former matrimonial home when H was still residing there. Shortly before today’s oral hearing, I was informed by HI that the 3-day criminal trial has now been adjourned for a mention hearing on 26/6/2023.  

37.  I was also informed previously that Mr Eric Kwok S.C. had been instructed to defend for MRL at the said 3-day trial of the Criminal Proceedings.  W said she was given to understand lately by MRL’s legal team that MRL could only properly conduct her defence to the 3 charges with access to the materials in these divorce proceedings.[6]   Hence, W could only apply to this Court on short notice.

38.  W said MRL was one of her witness in these divorce proceedings and had filed affidavit evidence on the dynamics within the former matrimonial home at the material time.  MRL’s affidavit evidence could show H’s aggressive behavior towards MRL and her as well as his bad influence on the 2 children of the family[7].

39.  The reasons provided by W[8] for her “Rule 121” application and release from her implied undertaking could be summarized as follows :-

(a) The incidents of the former matrimonial home which are now the subject of the 3 charges laid upon MRL have been detailed in a number of affidavits of H and herself in these divorce proceedings;

(b) It is important for the criminal court to be apprised of the broader background to the alleged assaults as deposed to in the parties’ affidavit evidence; as well as other documents and correspondence; (c)  An overview of the background of the parties would shed light on the incidents leading to the 3 charges laid upon MRL;

(d) The criminal court had known the existence of these matrimonial proceedings.   H in his statement to the Police had said MRL would gather evidence against him in these matrimonial proceedings;

(e) As one of MRL’s defence witness in the Criminal Proceedings, she would be cross examined on broader context surrounding the 3 alleged incidents of assault.  It may become necessary for her to refer to documents and/or correspondence in these matrimonial proceedings;

(f) The use of the documents, correspondence and information in these matrimonial proceedings would be limited to assisting MRL in properly defending the 3 charges, there would be no prejudice caused to H.

40.  In the following paragraphs of this Decision, I will refer to W’s reasons by their alphabetical numbering of (a) to (f).

Discussion

41.  One of the feature in this application was that the access to and disclosure of documents sought by W was not for herself but to facilitate the non-party MRL in defending the Criminal Proceedings.   As H’s Senior Counsel Miss Yip S.C. pointed out in her submissions at the oral hearing, which I agree, why should W be in the “driver seat” for MRL for this application ?   Why, and to what extent should, MRL be given the information and materials, which are not only substantial in quantity, but also covering confidential materials relating to parties and children, even contained personal materials covered by medical confidentiality be disclosed to MRL and be used, but only if she was so advised, in her defence in the Criminal Proceedings ?

42.  W’s Counsel Miss Theresa Chow replied and submitted that upon research there was no local authority on a non-party intervening in matrimonial proceedings to seek for disclosure of documents and information although there are some overseas authorities on such point.   Counsel Miss Chow in reply conceded the “non-party” point and came up with a “fall-back” position that W would accept that leave be granted for her to send over to MRL’s legal team the list of requested documents for them to consider if they would come forward to seek leave from this Court. 

43.  Given that such belated “fall-back” position only came up ad hoc and was not stated as an alternative reliefs sought in W’s Summons, it would be unfair for me to deal with such belated “fall-back” position at this stage and in this hearing.

44.  In the case of DJ v LRM, unreported, FCMC No.8507/2013, the Rule 121 application was allowed to enable the wife in that case to prepare her written representation to the Department of Public Prosecution (“DPP”), to invite them to reconsider their decision to prosecute her on child abuse.   The learned judge rightly decided the application under the open justice principle and, upon his balancing exercise, he came to the conclusion that an overview of the background of the ongoing matrimonial disputes between the husband and the wife would probably shed light enabling the DPP to have an objective evaluation of the incident upon which prosecution was decided.  In the judgment, the learned judge said :-

“22. As can be seen from the above authorities, the default position is that access to documents filed in court proceedings should be permitted on the open justice principle, subject to the proportionality exercise. The fact that these are matrimonial proceedings does not detract from such a position but represents only one factor to be taken into account in the balancing exercise.

23.   In the present case, obviously it is in public interest to enable W    to properly conduct her defence against a criminal charge laid against her.   No doubt it is in the interest of justice that W should have access to relevant and necessary materials for the purpose of conducting her defence     in the criminal proceedings.”

45.  In my view, the facts of this case are different from the DJ v LRM case (supra).    Here it was MRL (W’s domestic helper and a non-party to these matrimonial proceedings) who was being prosecuted and not W. I have not been assisted by either one of the legal teams whether it is permissible, in the criminal law context, for a defence witness to “inter-twin” with the defendant by providing the defendant additional information and materials other than performing his or her duty to give truthful oral testimonies in the Criminal Proceedings as a witness of fact.

46.  I must confess that with my limited experience in criminal cases, I have reservation on such peculiar situation since the applicant for access or disclosure was a party to the marriage who seeks to assist a non-party’s defence to criminal charges whilst the alleged victim of those charges was the other party to the marriage.   W would also be giving evidence as one of the defence witnesses in the criminal trial.   This is different from the case of Medway v Doublelock Ltd (supra) which involved civil claims referred to in the judgment of Wong Kwok Hin v Wong Lai Fan & Anor (supra)[9]. It also differs from S v S (supra) and R v R (supra) where the recipient of documents was the Inland Revenue for enforcement under due process of law.

47.  Assuming it was permissible for W (defence witness) to assist MRL (defendant) in the criminal law context, I would still refuse W’s application on the open justice principle with the balancing exercise properly done from the public interests and confidentiality perspective and also from the criminal procedure perspective.    

48.  Prosecution in criminal proceedings are conducted by the DPP under a set of rules and procedure different from civil cases in many aspects.   First and foremost, unless otherwise provided by statute or at common law, the burden of proof in criminal cases always rests upon the prosecution and the requisite standard of proof is that of “beyond reasonable doubt”.   It is not for the defence to prove innocence.     

49.  That said, the defendant has the right to make the submission of “no case to answer” after the prosecution case was closed.   Further, the defendant also has to right to elect not giving evidence even after “a case to answer” was ruled in by the criminal court on the prosecution evidence.    With all these in mind which was not ascertainable at this stage, nor was W capable of managing MRL’s strategy of defence,the balancing exercise must lean towards protecting the confidentiality of the parties in the matrimonial proceedings rather than affording the non-party MRL to use confidential materials in these matrimonial proceedings at her ease and convenience under the shield of “public interests”.

50.  Besides, in the criminal law context, the privilege against self-incrimination (“PSI”) at common law available to MRL was something which this Court must consider when deciding whether to grant access or disclosure.  However, as MRL’s defence witness, W was in no position to address this Court on the issue PSI on behalf of MRL.  Such issue could only be brought up for this Court’s consideration by the defendant in the Criminal Proceedings (that is MRL) who was not the applicant in this Rule 121 application.

51.  At paragraph 29 of the Secretary for Justice v FTCW case (supra), where it was said :-

“29. Before we turn to the balancing exercise, we must examine two principal grounds relied upon by Mr. Pointer and Mr. Thomas in resisting permission to grant access :

(a) Privilege against self-incrimination [PSI]; and

(b) Legal professional privilege [LPP].

In the course of doing so, we must also consider (if such privileges can      be relied upon) whether the privilege concerned present an absolute bar   against the grant of access instead of being one weighty factor in the   balancing exercise.”

52.  Finally, there was no affirmation from MRL to provide the reasons (if any) as to why she did not seek leave herself from this Court or was she aware of W’s “Rule 121” application.    Given the acrimony between H and W in these proceedings, it would be important for W when seeking leave for access and disclosure of documents and information, in particular in assisting a non-party, to convince this Court that her application was a bona fide one and not taken out mala fide or any concerted effort with MRL to vandalize H.    Such information would assist the Court’s proportionality exercise to evaluate the purpose of using the documents and information and any risk of harm to the legitimate interests of H.[10]

W’s grounds of application[11]

53.  On ground (a), I failed to see how the incidents of the former matrimonial home could not be revealed, if so required, during the course of trial of the Criminal Proceedings and need to be checked upon the contents of the parties’ affidavits filed in these proceedings.   This ground is not accepted.

54.  On ground (b), the importance and relevance of the broader background to the alleged assault(s) are matters within the decision of the criminal court and not for W, a defence witness, to decide or say so.  This ground is not accepted.

55.  On ground (c), this is a replicate of ground (b).   The need (only if so required) and importance to have an overview of the background are matters within the decision of the criminal court and not to be dictated by W.   This ground is not accepted.

56.  On ground (d), whether the criminal court was aware of these matrimonial proceedings is neither here nor there.  Granting or refusing access and disclosure under Rule 121 of the MCR does not premise upon the awareness of the criminal court of these proceedings where documents or materials were obtained.   This ground is not accepted.

57.  On ground (e), when being cross examined at the trial of the Criminal Proceedings, W was only required to tell the truth from the best of her memory and recollection.   W failed to show that she was incapable or unable to give oral testimonies without the aid of the documents and materials which she now sought for access and disclosure.   This ground is not accepted.

58.  On ground (f), the need to safeguard confidentiality of parties in these proceedings outweighed MRL’s right to use the documents, correspondence and information sought by W.   This ground is not accepted.

H’s areas of concession

59.  I noticed that at paragraph 15 of H’s Written Submissions, H proposed that leave be granted to W to disclose items 11 to 16 (properly redacted) of her 3-page schedule of documents.   This was not accepted by W who pressed for access to and disclosure of all the items in the 3-page schedule.

60.  The Court’s jurisdiction to control access to the documents and information placed in its possession and custody in relation to legal proceedings is a judicial process in respect of which the parties do not have control.[12]   Hence, there is no room for H to concede to W’s access and disclosure if such application was not accepted by the Court under the open justice principle, not to also mention failing in the balancing exercise.

61.  With my decision on W’s application unsuccessful in its context and entirety rather than on the scope of documents, I do not grant leave to use those documents which are conceded by H.

62.  With such decision, I do not need to venture into each and every one of those 49 items of documents in W’s 3-page schedule.

Uplift of Implied Undertaking

63.  On W’s application for uplift of the implied undertaking, I also stand by my decision against W in respect of her application made under the statutory provisions of Rule 121 of the MCR.

Decision

64.  For all the above reasons above, I decided that W’s “Rule 121” application fails.

Costs

65.  Given the fact that W completely fails in her application, it is fair and reasonable for her to bear H’s costs of and incidental to her application.

66.  And I will so order.  

67.  This is a standalone application unrelated to the parties’ ancillary reliefs, or to any of the “yet-to-resolve” interlocutory application(s), I decided that H’s costs to be taxed if not agreed, and to be paid forthwith by W.

68.  W’s application does not involve any difficult points of law or any complexity which called for the assistance of Senior Counsel.   Hence, I would only grant Certificate for one Counsel for H.

Orders

69.  I now grant the following orders:

(a)  W’s Summons dated 26/4/2023 be dismissed;

(b)W do pay to H the costs of and occasioned by her Summons dated 26/4/2023 to be taxed if not agreed, and to be paid forthwith; and

(c)  There be Certificate for one Counsel.

70.  This is a costs order nisi which would become absolute if no application to vary the same was filed within 14 days from the date of this Decision.

[1] [2014] 1 HKLRD 849

[2][2018] HKCFI 2344

[3] See paragraph 13 of this Decision

[4] [2014] 1 HKLRD 849

[5] See paragraph 13 of this Decision

[6] See paragraph 7 of W’s 17^th Affidavit

[7] See paragraph 5 of W’s 17^th Affidavit

[8] See paragraphs 9 to 14 of W’s 17^th Affidavit

[9] See paragraph 20 of this Decision

[10] §114 of Secretary for Justice v FTCW & Ors [2014] 1 HKLRD 849

[11] See paragraph 24 of this Decision

[12] §18 of Secretary of Justice v FTCW & Anor [2014] 1 HKLRD 849

FCMC 4633 / 2020

[2022] HKFC 174

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 4633 OF 2020

-------------------------

-------------------------

________________

D E C I S I O N
(Leave to Appeal)

________________

Background

1.  By way of general background, the Petitioner was the Wife and the Respondent was the Husband.  Parties married in 2007.  There are 2 children of the family whose custody so far had not been any serious issue.  Interim care and control was granted to the Petitioner but access had all along been a contested issue, in particular over the elder child, between these

highly conflict parents.  The 2 children whom I will refer to them as “G” a boy, aged 12 and “S” a girl, aged 9.  I will refer to the Petitioner mother as “M” and the Respondent father as “F” in this Decision.

2.  On 6/9/2021, F filed a Summons seeking variation of access in respect of the 2 children.  This application was named as “Access Summons” by F.

3.  On 3/1/2022, F filed another Summons seeking an order that the elder child “G” be placed with a boarding school in Hong Kong for the academic school year in 2022/23 to start in September 2022.  This application was named as “Schooling Summons” by F.

4.  Yet there was another Summons filed by F on the same day of 3/1/2022 for this Court to recuse himself from participating in these proceedings any further and that all hearings be vacated, adjourned and re-fixed until determination of the recusal application.  This application was named as “Recusal Summons” by F.

5.  At the hearing on 11/1/2022, this Court granted a composite Order which undisputedly was a case management decision over all application(s) pending before the Court on that day.  This composite Order was named as “Adjournment Order” by F in respect of which, or more precisely part of which, he is now seeking leave to appeal.

6.  F’s leave to appeal was proceeded in the usual way as per the “New Arrangement for Application for Leave to Appeal in the Family Court” issued by Acting Principal Family Court Judge C.K. (as he then was).

7.  F was represented by Miss Anita Yip S.C. leading Mr Ken S.H. Chan.  M was represented by Miss Audrey Eu S.C. leading Miss Theresa Chow.

The Adjournment Order dated 11/1/2022

8.  Apart from the Access Summons and the Schooling Summons, there are the following Summonses which are pending further disposal by this Court as at the hearing on 11/1/2022 :-

-  M’s Discovery Summons dated 27/1/2021;

-  F’s Discovery Summons dated 9/4/2021;

-  M’s Summons dated 10/12/2021 for setting aside leave to issue Committal Summons obtained by F;

-  F’s Summons dated 22/11/2021 for variation of costs order nisi.

9.  The terms of the Adjournment Order are, inter alia, that the Recusal Summons be fixed for substantive hearing in consultation with Counsel’s diaries with 1 day reserved.  The Access Summons, Schooling Summons, and all the other pending Summonses aforesaid[1] be adjourned for disposal after determination of the Recusal Summons.

F’s Recusal Summons

10.  F’s Recusal Summons reads as follows :-

“(1) His Honour Judge George Own shall recuse himself from participation in these proceedings under FCMC 4633/2020 including any further hearings (“Recusal Application”);

(2) All further hearings under FCMC 4633/2020 be vacated, adjourned and re-fixed until after the determination of the Recusal Application; and

(3) There be no Order as to costs of this application.”

F’s Leave to Appeal

11.  F’s Summons seeking leave to appeal the Adjournment Order actually referred to only 2 orders, namely, the order on adjourning the Access Summons (paragraph 1 (a) of the leave to appeal Summons); the order on adjourning the Schooling Summons (paragraph 1 (b) of the leave to appeal Summons).  The remaining application was that this Court made no directions on all interim matters concerning children and finances (paragraph 1 (c) of the leave to appeal Summons).

F’s Draft Grounds of Appeal

12.  There are 3 grounds as follows :-

Ground 1 :  The exercise of case management power by the Learned Judge is plainly wrong in that it blatantly disregards the welfare of the       Children;

Ground 2 :  The Learned Judge was plainly wrong in not directing another family judge to handle and hear the Schooling Summons, the Access Summons and all interim matters;

Ground 3 :  The Adjournment Order was irrational, prevented the Court from carrying out its task and in breach of natural justice.

The statutory provisions on granting leave to appeal

13.  The jurisdiction on granting leave to appeal was under section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

14.  The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Fok JA (as he then was) at paragraphs 8 and 9 of the Judgment).

Chronology of Events that had happened

15.  Given that F is now seeking leave to appeal a case management decision of this Court, where only Ex Tempore reasons were delivered for the decision, it is important and necessary to refer to matters or events that had arisen prior to the granting of the case management decision on 11/1/2022 in respect of which F is now seeking leave to appeal. 

16.  To start with, at the hearing on 26/1/2021 before Deputy Judge Thelma Kwan (as she then was), which was the hearing for the 1^st Appointment, Children’s Appointment, Interim care, control and access of the children and also the call-over hearing of M’s Summons for ouster order against F, the learned deputy judge after hearing parties’ submissions adjourned most of the outstanding matters and directed, inter alia, that Miss Lora Lee to be appointed as the parties’ single joint expert whose scope of appointment, accepting those proposed by F’s Senior Counsel, was as follows :-

“Miss Lora Lee be appointed as the SJE to prepare a Children Psychologist Report on the children of the family and with focus on the children’s respective relationship with each of the parents. If deemed appropriate, Miss Lee may speak with/interview the parents for the purpose of preparing this report on the children.”

17.  Miss Lora Lee produced her 66-page (270 paragraphs) Report dated 25/6/2021.  In a gist, Miss Lee recommended that the child G to be removed from his home and separated from his parents to protect himself and the safety of those around him.  G would only have overnight stay access with his parents over the weekend when[2] :

A : Both parents have undergone psychiatric evaluation, to assist the court in determining the safety of the children’s mental health and physical safety when under their care.

B : The court has decided on living arrangements based on the   psychiatric evaluation of the parents[3].

18.  Miss Lee further recommended :-

“261. While G is in a safe and secure environment, he should receive intensive therapy with an experienced petitioner.

262. While he is staying in a safe and protected environment, regular but structured supervised visits by his parents should be arranged, so that he does not feel abandoned. In order to provide a sense of safety for G, this would be best supervised by Auntie C (the nanny).

263. An official solicitor to be appointed to represent G once the treating psychologist feels that G is in a stable mental state, so he feels a better sense of control for having his voice heard.

264. In order for G to feel safe and be able to build trust with his therapist, I suggest that his therapist not provide a report to the parents or the court but only record the number of sessions with G. This ensures that G is receiving support and the parents’ continued involvement.

265. To avoid the likelihood of G becoming more paranoid and suspicious of others, both parents must stop recording what G says.

266.  ………..”

19.  At the next hearing on 30/6/2021, both parties indicated that they did not agree (emphasis added) to G to be “left-alone” and separated from his parents.  This Court then directed the Social Welfare Officer in charge of this case to be provided with a copy of Miss Lora Lee’s Report for him to review and then to provide a short memo to this Court, on an expedited basis (emphasis added), as to :-

-  The appointment of Official Solicitor for the 2 children or, only for the child G in light of G’s condition;

-  Views and Recommendations in light of Miss Lora Lee’s Report.

20.  On 26/7/2021, the Social Welfare Officer sent in an “Update Memo” reporting, inter alia, that appointment of the Official Solicitor (“OS”) to represent the 2 children would protect their interests and having their voice heard.  Both F and M expressed no objection to the appointment of the OS so recommended by the Social Welfare Officer.

21.  Given the acrimonious relation between the parents which had persisted if not escalated throughout these proceedings, and the need to ensure that the children’s interests are best secured, and also taking into account the Updated Memo from the Social Welfare Officer, this Court at the hearing on 29/7/2021 (which lasted from 2:33 p.m. to 8:31 p.m. intermittentlyfor 6 hours) directed the Official Solicitor to represent the 2 children in these proceedings.  At this hearing, the Court also granted interim defined supervised access to F on every Tuesdays and Thursdays from 7 p.m. to 9 p.m. and on every Saturdays from 4 p.m. to 9 p.m.

22.  At the same hearing on 29/7/2021, the Court granted further specific and detailed directions as follows :-

-  Dr Peter Lee be appointed as psychologist for the child G;

-  Both parties do undergo psychiatric assessment/treatment by a jointly appointed psychiatrist.  If the parties undergo assessment by their own psychiatrist, each party shall also be assessed by the other party’s psychiatrist.  The respective psychiatrists to produce the following reports to the Court :–

(a)  Psychiatric assessment of the party appointing the psychiatrist;

(b) Psychiatric assessment of the other party;

(c)  Psychiatrists for both parties to meet after finalising their reports and to prepare a joint report setting out (i) agreed and non-agreed observations of F and M; and (ii) reasons for any disagreement.

23.  On 25/8/2021, the OS sent in a letter on an urgent basis (emphasis added) reporting that there are several outstanding matters which need to be addressed.  For the sake of completeness, the relevant parts of the OS’s letter are reproduced hereunder :-

“1. As stated in paragraph 263 of the single joint expert Madam Lora Lee dated 25^th June 2021 expert recommended that Official Solicitor to be appointed to represent G once the treating psychologist feels G is in a stable mental state, so he feels a better sense of control for having his voice heard. However, the Petitioner and the Respondent have not yet arranged G to have the 1^st therapy with Professor Peter Lee even that he was ordered by the Court on 29^th July 2021 to be the expert for the therapy. As we are not medical expert, we are not certain if G was in a stable mental state to voice at the interview.

2. The parties are also yet to undergo (emphasis added) psychiatric assessment/treatment either with their own psychiatrist or by the psychiatrist appointed by the other party to make observations. It is unable to ascertain if the Petitioner or the Respondent are in the capable mental condition to take care of the children.

3. The single joint expert Madam Lee suggested to place G at a foster family as an interim measure. The parties are yet to explore (emphasisadded) the possibility of placing G in a foster family and provide the details thereto.

4. Also the updated social investigation report may be required.

In light of the aforesaid, we have reservation whether the OfficialSolicitor’s Report to be prepared at this moment can properly andcorrectly reflect the true voice and best interest of the children as ourobservation to be submitted will definitely subject to the above pre-conditions (emphasis added).

It is, therefore, in our view that an adjournment of the trial for the partiesto settle the above matters maybe more appropriate. We should begrateful if the Court will consider and give direction for an adjournmentof the trial fixed for 7^th September 2021, if he sees fit (emphasis added).

    Kindly place this letter before the Honourable District Judge G. Own for    consideration and direction.  We look forward to hearing from you on an       urgent basis. Thank you.”

24.  On 27/8/2021, this Court replied to the OS as follows :-

“ 1. Official Solicitors’ views noted and agreed.

2. OS do liaise with both parties on their views.

3. Parties do assist OS on the outstanding matters that need to be done to assist their preparation of the OS Report;

4. A Pre-Trial Review (30 minutes) be scheduled after the OS Report is ready and completed;

5. Trial on 7 to 10 September 2021 be vacated.”

25.  On 30/8/2021, the OS produced their Report.  In their letter of

the same date, the OS requested the following directions :-

“ (a) In addition to our letter to the Court dated 25^th August 2021, whether we are authorized to disclose the Official Solicitor Report filed on 30^th August 2021 to the Petitioner and the Respondent for consideration;

(b) Whether Supplemental Official Solicitor Report is required upon the completion of the outstanding matters; and

(c) Whether the Pre-Trial Review is to be scheduled after the completion of the Supplemental Official Solicitor Report, if so required.”

26.  The OS’s requests for directions were all responded to by the Court with an affirmative answer – “Yes” to each of the 3 requests for directions.

27.  On 2/9/2021, F’s lawyers wrote in to seek leave to issue a Summons on an urgent basis (emphasis added) for variation of the interim care and control of either or both children; and also on the then existing interim defined supervised access arrangement (the “Intended Summons”), asking it to be listed for hearing together with the upcoming directions hearing for M’s Summons for an ouster order against F which had been listed for 7/9/2021 (that is, 5 days later).

28.  On 3/9/2021, leave was granted to F’s urgent request on short notice for the Intended Summons.

29.  On 6/9/2021, F issued his 3-page Intended Summons supported by his 26-page 11^th Affidavit with 11 exhibits adding up to around 200 pages.  As said, with leave of the Court, F’s Intended Summons was listed for hearing on 7/9/2021, which was just the next day.

30.  On 7/9/2021, the hearing started at 10:55 a.m. and ended at 5:46 p.m. intermittently lasted for about 7 hours.  Insofar as F’s Summons for variation of the interim care and control and supervised defined access application was concerned, apart from granting general directions on the filing of affirmation evidence, the Court granted detailed and comprehensive orders as follows :-

-  F’s Summons for variation of care and control and access be     adjourned for substantive argument with 1 day reserved;

-  F’s application for variation of interim care and control of the child G be rejected;

-  F’s application for interim staying access of the child G  be rejected;

-  F’s application for uplift supervised access of Rent-A-Mum be rejected;

-  F do have interim interim dinner access with the 2 children every Tuesday, Wednesday and Friday from 6:30 p.m. to 8:30 p.m. supervised by Auntie C and a representative from Rent-A-Mum commencing 7/9/2021;

-  F’s interim defined supervised access on Saturday between 4 p.m. to 9 p.m. by Auntie C and Rent-A-Mum do continue until further order;

-  Interim telephone access on those non-access days, namely, Monday, Thursday and Sunday, of not more than 1 hour between 6:30 p.m. and 8:30 p.m.  The children shall continue to use their own iPhone or other electronic devices given by F for the interim telephone access;

-  The handover for access days shall take place as follows :-

(i)    Pick up of the children at the beginning of access shall take place at the lobby of M’s residence at xxxx;

(ii)   Collection of the children at the end of access shall take place at the lobby of F’s residence at xxxx; and

(iii)  Both pick up and collection of the children are to be conducted in the presence of Auntie C and a representative from Rent-A-Mum, but in the absence of the parties.

-  In the event that Auntie C is not available to attend F’s access, such access shall be supervised by two representatives from Rent-A-Mum. In the event that Rent-A-Mum is unavailable to secure another representative in time for access, such access shall be suspended and make-up access shall be arranged.”

31.  In addition, the following detailed and comprehensive case management directions were granted at the same hearing :-

-  Professor Lee do prepare a preliminary report on present condition of G with recommendation and timetable on therapy (without disclosing what G has told him) to be filed with the Court and served on all parties and the Official Solicitor (“OS”) within 42 days (“Prof. Lee’s Report”);

-  The joint report to be prepared by the psychiatrists of both parties as stated in paragraph 10 of the Order dated 29/7/2021 shall be filed and served on all parties and the OS within 42 days (“Joint Report”);

-  Within 28 days of service of Prof. Lee’s Report and the Joint Report, the OS do prepare a supplemental report to be filed and served on all parties (“OS Supplemental Report”);

-  The Social Welfare Officer do prepare a further report after receiving Prof. Lee’s Report, the Joint Report and the OS Supplemental Report (“Updated SWR”) to be filed and served on all parties;

-  A Pre-Trial Review for F’s Summons filed on 17/9/2020 in respect of interim care and control of the Children shall be fixed after the service of the OS Supplemental Report and the Updated SWR.”

32.  On 9/11/2021, F issued an Ex Parte Summons on Noticeon anurgent basis (emphasis added) returnable the next day on 10/11/2021 seeking various interlocutory reliefs. In a gist, F had arranged an interview and assessment for the child G at xx School at 11:45 a.m. on the followingday, that is, 11/11/2021. He wanted to have access to the child G and bring him for the interview and assessment.  The short noticeurgent application was listed for hearing on 10/11/2021 which started from 9:46 a.m. until 1:44 p.m. intermittently for 4 hours.  OS representing the children also attended this hearing.

33.  At the end, F’s application as per his Ex Parte Summons onNoticewas dismissed with costs to M and with Certificate for Counsel.

34.  On 22/11/2021, F issued a Summons seeking variation of the costs order nisi in respect of his Ex Parte Summons on Notice which was dismissed.

35.  On 3/1/2022, F issued the Schooling Summons and the Recusal Summons.

Discussion

36.  First and foremost, it is common ground that case management decisions, which are the exercise of discretion, are pre-eminently within the province of the trial judge.  The appellate court would only interfere in very exceptional circumstances.  The appellant faces a high hurdle in showing that the first instance judge had gone clearly wrong and made orders which

clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that the order was irrational[4].

37.  Secondly, F with the benefit of full legal advice from reputable firm of matrimonial practice and Senior Counsel, decided to seek “All furtherhearings in FCMC No.4633/2020 bevacated, adjourned and re-fixed until after thedetermination of the Recusal Summons[5]” in his RecusalSummons is clear and unambiguous.  The Adjournment Order was precisely what F had prayed for and had achieved by the filing of his Recusal Summons.

38.  It is blatantly wrong, with respect, for F to be able to renege from what he had been seeking for or hoping to achieve by his RecusalSummons and, once achieved (emphasis added), be able to pick and choose those applications which he hoped to proceed under the disguise that the “welfare of the Children” was disregarded by the Court when granting the adjournment.  As M’s Senior Counsel fairly and rightly submitted, which I fully agree and accept, that F actually is now appealing an adjournment caused by his own Summons[6].  In so doing, F was cherry picking for the result that whilst there should be an adjournment for some other applications, those applications that he wished to proceed should be excluded from the Adjournment Order and, since the recusal application had yet to be heard, those applications he wished to proceed would then need to be disposed of by another Judge of the Family Court.

39.  Complaint was also laid upon the trial of F’s Summons filed earlier on 17/9/2020 seeking interim shared care and control of the children was vacated by this Court without hearing the parties and against protests by F.  It was said by F that access was extremely limited and with the trial being vacated with no foreseeable re-fixed dates, F had no choice but to take out the AccessSummons on 2/9/2021 seeking increase access.

40.  As outlined above, F’s access was initially scheduled on 29/7/2021 for Tuesdays, Thursdays and Saturdays which was 3 days within a week[7]. Starting from 7/9/2021, it was increased to 4 days within a week on Tuesdays, Wednesdays, Fridays and Saturdays.  In addition, there are telephone access on non-access days (that is, Mondays, Thursdays and Sundays)[8].  On any objective view, the access arrangement could hardly be said to be “extremely limited” so alleged by F.

41.  Given that OS was directed by this Court on 29/7/2021 to start representing the children[9], they must take part in all hearings affecting the children with no exception to the trial of F’s Summons even though it was taken out back on 17/9/2020 for interim shared care and control of the children.  Given the many outstanding issues that need to be addressed[10] before the OS was in a position to take part constructively and meaningfully in the trial of F’s said Summons, this was an exceptional circumstances that had arisen within the ambit of the Civil Justice Reform which warranted vacating the trial of F’s said Summons.  That said, it served no legitimate purpose for hearing the parties and to do so would only increase parties’ costs and to waste Court’s limited resources, leaving aside elevating acrimony between the parties.

42.  Complaint was also made to this Court’s refusal to accommodate F’s request to hear the Recusal Summons substantively on 8/3/2022, which date was originally listed for trial of F’s Access Summons but was vacated by the Recusal Summons.   It was also said by F that the time frame proposed for the filing of affirmations/submissions, namely 3 weeks for M followed by 2 weeks by F, would bring up to 1/3/2022 with 7 more days to follow before 8/3/2022.

43.  F’s Recusal Summons was served on M’s lawyers and correctly so, also served on the OS representing the children.  Although it was likely or probable that the OS might take a neutral stance on F’s recusal application, it could happen that M’s affirmation/submissions in opposition and/or F’s affirmation/submissions in reply (both of which had yet to be filed and seen) contain information over the children which called for OS’s assistance by way of affirmation/submissions. The time frame on exchange of affirmation/submissions proposed by Senior Counsel Miss Yip, namely, that 3 weeks for M followed by 2 weeks thereafter by F, with respect, had not taken into account such scenario.   It is procedurally wrong for F to take it for granted as to OS’s stance without the parties’ affirmations/submissions “on the table” but to plainly ignore or exclude the OS’s right to file affirmation/submissions as they may see fit and necessary to do so.  It is clear from Miss Yip, S,C.’s time frame aforesaid that no heed was taken of the OS.

44.  Given the vulnerable characteristic of the children in this case for whom the OS was required to represent them, this case is not one of those “run-of-the-mill” recusal application in a “childless” marriage or, with children who does not require separate legal representation.

45.  Further, leaving aside the OS’s right to file affirmation/submissions as they may see fit and necessary, and given the parties’ affirmations and exhibits filed so far are voluminous in terms of number of pages, it is fair and reasonable for both parties to have the same time span of 3 weeks each for filing of affirmation/submissions notwithstanding that F was happy with having only 2 weeks to file his affirmation in reply, apparently hoping to catch up with the date of 8/3/2022 which Senior Counsel Miss Yip had so submitted at the hearing.  M’s side in opposition had asked for 3 weeks.  As M’s Senior Counsel rightly submitted[11], it is fair for both parties to be given sufficient time to prepare their respective affirmation/submissions. The Court should be able to resist being steamrollered in its case management decision.  More importantly, I am minded to say that court’s resources must be fairly and evenly distributed amongst all other court users and not be manipulated or monopolized by parties in any particular case.

46.  The Covid-19 pandemic had caused a further session of General Adjournment Period (“GAP”) starting from 7/3/2022 to 11/4/2022 (both days inclusive).  With the benefit of hindsight, had the date of 8/3/2022 been utilised for replacing the trial of F’s Summons for interim shared care and control with the trial of F’s Recusal Summons, it would still have been vacated and re-fixed in any event as it falls within the GAP. 

47.  I accept that the Court does not have any crystal ball for knowing in advance at the hearing on 11/1/2022 that a further session of GAP was forthcoming in March 2022.  Had the Recusal Summons been fixed for 8/3/2022, F might possibly argue that it still could be heard as it falls within the “exceptional and urgent” category of cases which, according to the guidelines for GAP, could still be heard.  In my view, given the increased access arrangement from 3 days a week to 4 days a week plus non-access days telephone access, which essentially gave F daily access to the children but in different form, F could hardly say that the Recusal Summons was one of those “exceptional and urgent” cases within GAP that this Court should hear and to consider recusing himself.  Further increasing interim access and the uplift of supervised access vis-à-vis asking the Court to recuse himself fall under different context from any perspective.  In my view, F was cherry picking not only on applications that he wished to proceed, he was also judge shopping around to his favour.

48.  Although F conceded that this case is at the highest end of high conflict cases requiring speedy resolution[12], as a matter of fact, he was “thefrolic of his own”.  With the benefit of full legal advice, F ought to know or to have been advised on the practical meaning and effect of the terms of his Recusal Summons; in particular, paragraph 2 therein which would inevitably delay rather than advance speedy resolution of the children matter.  It is fundamentally and conceptually wrong for F to be able to :- (a) on the one hand specifically ask for adjournment of all hearings (emphasis added) and; (b) on the other hand to “complain” that all interim matters are in the void[13] without saying a single word as to any interim arrangement in his Recusal Summons.  F could not complain that the Court did not descend into the arena and grant interim reliefs when he had not, but could have, asked for it.

49.  In the absence of any consensus and requests from both parties, it is procedurally wrong for the Court on its own initiative (emphasis added) to proceed with granting interim reliefs without noting that the key question of recusal had been raised which had yet to be determined.  Apart from unfairness to M who was opposing the recusal, it would create complications if interim orders and directions are granted and implemented during the adjournment period before the substantial trial of the recusal application if, at the end, it turned out to be successful. 

50.  It is readily discernible from the above chronology of events that any complaint or grievances levelled at this Court for disregarding the welfare of the children, failing to direct another judge to hear F’s AccessSummons and Schooling Summons and to make orders on other interim matters are devoid of merits and must fail.

51.  Grounds 1 and 2 of F’s Grounds of Appeal have no reasonable prospect of success.

52.  Ground 3 referred to the Adjournment Order was irrational, this Court not carrying out its task and was in breach of natural justice.

53.  Given full and careful consideration to each and every one of the case management directions at each stage of the proceedings within the above chronology, not even to mention the exceptionally long hours taken up for resolving purely interlocutory matters through the granting of directions, it is abundantly clear that any criticisms of irrationality are self-serving statements purposely made which are devoid of merits and bound to fail.

54.  Further, F’s criticisms or complaints on this Court not carrying out its tasks and in breach of natural justice was raised clearly upon his dissatisfaction that his desired results not being accepted by the Court rather than upon any substantial grounds.

55.  Hence, I find Ground 3 of F’s Grounds of Appeal have no reasonable prospect of success.

Any other grounds in the interests of justice?

56.  Although F did not specifically plead or separately raise this limb in his draft Grounds of Appeal as he might have included this in his Ground 3 abovementioned on breach of natural justice, I have given full and careful consideration and come to the conclusion that there are no other grounds for leave to appeal to be given to F in the interests of justice.

57.  Quite to the contrary, I find that interests of justice would not be secured or observed if leave to appeal was to be granted to F. 

Decision

58.  For all the reasons above, I decided that F’s application for leave to appeal fails.

Costs

59.  F had failed completely in his application for leave to appeal.  I decided that the normal order of costs to follow the event must be fair and reasonable.

60.  And I will so order.

61.  I also grant Certificate for 2 Counsel.

Orders

62.  I now grant the following Orders :-

(a)  F’s Summons dated 25/1/2022 for leave to appeal be dismissed;

(b)  F do pay to M the costs of the application for leave to appeal; including all costs reserved (if any), to be taxed if not agreed; and

(c)  There be Certificate for 2 Counsel.

63.  This is a costs order nisi which would become absolute if no application to vary the same was made within 14 days from the date of this Decision.

64.  The only remaining thing is for me to express gratitude to the valuable assistance rendered to this Court by Senior Counsel, Counsel and the legal teams for both parties.

[1] Paragraph 8 of this Decision

[2] See paragraph 258 of Miss Lee’s Report

[3] See paragraphs 259 and 260 of Miss Lee’s Report

[4] See NPYJ v SMRC [2020] HKCA 832/CAMP 155/2020 §23

[5] Paragraph 2 of F’s Recusal Summons

[6] Paragraph 3 of M’s Skeleton Submissions

[7] See paragraph 21 of this Decision

[8] See paragraph 30 of this Decision

[9] See paragraph 21 of this Decision

[10] See paragraph 23 of this Decision

[11] See paragraph 11 of M’s Skeleton Submissions

[12] See paragraph 16 of F’s Skeleton Submissions

[13] See paragraph 11(d) of F’s Skeleton Submissions