HCCL 17/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
COMMERCIAL ACTION NO 17 OF 2012
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BETWEEN
GRANT THORNTON INTERNATIONAL LIMITED
1st Plaintiff
JONATHAN RUSSELL LEONG
2nd Plaintiff
RINGO CHIU WING CHEUNG
3rd Plaintiff
ANDREW LAM HUNG YUN
4th Plaintiff
GARY TERENCE JAMES
5th Plaintiff
LO NGAI HANG
6th Plaintiff
AU YIU KWAN
7th Plaintiff
LI WING YIN
8th Plaintiff
NORMAN TWUI KA CHE
9th Plaintiff
and
TANG CHUNG WAH
1st Defendant
LEE FUNG YING
2nd Defendant
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Before: Hon Ng J in Chambers
Date of Hearing: 13 November 2013
Date of Decision: 11 June 2014
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D E C I S I O N
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Introduction
1. The substantive matters before this court were (1) the Plaintiffs’ application to strike out the counterclaim on the ground that it discloses no reasonable cause of action and (2) the Defendants’ application to strike out the 2nd to 9th Plaintiffs from these proceedings on the ground that Messrs King & Wood Mallesons (“KWM ”) are not duly authorized to issue and conduct these proceedings.
2. As far as (1) was concerned, Mr Brock informed this court that the Defendants had issued a summons on 7 November 2013 for leave to discontinue the counterclaim and the Plaintiffs were agreeable to paragraphs 1 and 2 of that summons. The only live issue was the question of costs.
3. Before this court proceeded to deal with either (1) or (2), Mr Cheung, for the Defendants, made an oral application that I ought to recuse myself and that application, by consensus between Mr Brock and Mr Cheung, had to be dealt with first.
4. This is the court’s decision on the recusal application.
The application
5. The sole ground of the application was apparent bias which in turn was based on what Mr Cheung described in his skeleton submissions as “past skirmishes” which the Defendants, whilst acting in person, had encountered with this court on previous occasions, including in particular, a hearing which took place on 29 August 2013. The Defendants were said to have developed an acute concern as to whether it was viable for this court to continue presiding over these proceedings.
6. In an application of this sort, the court applies the reasonable apprehension of bias test ie the court must first ascertain all the circumstances which have a bearing on the suggestion that the judge is biased; it must then ask whether those circumstances would lead a reasonable, fair-minded and well-informed observer to conclude that there is a real possibility that the tribunal would be biased: Re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700; Porter v Magill [2002] 2 AC 357; Deacons v White & Case (2003) 6 HKCFAR 322.
7. The events which cumulated in the hearing on 29 August 2013 were these.
8. By a summons dated 10 June 2013, the Plaintiffs applied (i) for summary judgment against the Defendants in the sum of GBP57,500 together with interest, and (ii) to strike out the counterclaim on the ground that it discloses no reasonable cause of action. The sum of GBP57,500 was the subject of a costs order made by Hildyard J of the Chancery Division of the High Court of England & Wales against the Defendants back in November 2012. The summons was returnable on 23 July 2013 at 9:30 am and set down for 15 minutes.
9. By a summons dated 18 June 2013, the Defendants applied to strike out the 2nd to 9th Plaintiffs from these proceedings on the ground that KWM are not duly authorized to issue and conduct these proceedings. The summons was returnable on 29 August 2013 at 9:30 am and set down for 30 minutes.
10. On 23 July 2013, after hearing Mr Brock for the Plaintiffs and the Defendants appearing in person, this court granted the Plaintiffs’ application for summary judgment in the sum of GBP57,500 together with interest on the ground that the Defendants had failed to show by affidavit or otherwise a defence on the merits.
11. As there was not enough time to deal with the Plaintiffs’ striking out application, this court adjourned it to be heard together with the Defendants’ striking out application, with two hours reserved. This court specifically asked each of the Defendants whether they had any objection to adjourning the two striking out applications together. They indicated no objection.
12. On 26 July 2013, the parties were informed that the hearing scheduled on 29 August 2013 had been vacated due to insufficient time and directed to go before the listing clerk to re-fix the hearing of the two striking out applications together. The parties’ representatives went before the listing office on 1 August 2013 and the hearing was re-fixed to 18 September 2013.
13. On 5 August 2013, the Defendants wrote to this court seeking to re-fix the hearing scheduled for 18 September 2013 on the ground that the 2nd Defendant would be out of town on that day as she had to attend a business meeting in London. On 12 August 2013, the Defendants were directed to make their application to the court in accordance with the Rules of the High Court or the Practice Directions as appropriate.
14. On 21 August 2013, the Defendants issued a summons seeking to vacate the hearing date of 18 September 2013. The summons was returnable on 29 August 2013 at 10:00 am and set down for 3 minutes.
15. At the commencement of the hearing on 29 August 2013, the 2nd Defendant stood up to address this court that she might not be able to attend the hearing on 18 September 2013 because of her “very important business and family commitment” – she had to go to the UK to attend an international conference and also her youngest daughter was to go to study in the UK for the first time and she had to go with her. The 2nd Defendant then gave an undertaking to the court that she would definitely be available after October when she came back to Hong Kong and asked this court to protect her interests.
16. The 1st Defendant then addressed this court. There was no suggestion that he was not available on 18 September 2013, but upon inquiry from this court, the 1st Defendant confirmed it was his application too and made submissions accordingly.
17. Mr Brock, for the Plaintiffs, opposed the application on the ground that the proceedings had been dogged by delays caused by the Defendants. He submitted that it was the 2nd Defendant’s choice not to be legally represented in these proceedings whereas in other proceedings ie the bankruptcy proceedings against the Defendants, they were represented by Messrs Joseph Li & Co. He further submitted that this was just another ploy on the part of the Defendants to delay the proceedings.
18. In the end, this court made a case management decision to accommodate the 2nd Defendant’s personal commitments and re-fix the two striking out applications in consultation with the parties’ diaries, with two hours reserved.
19. This court then heard the parties on costs. Mr Brock asked for costs to be assessed summarily on the basis that the Defendants were seeking an indulgence from this court to vacate a hearing duly given by the listing clerk. The Defendants resisted it and asked for costs from the Plaintiffs. In the end, this court ordered costs be in the cause.
20. As a result of this court’s order on 29 August 2013, the two striking out applications were further re-fixed to 13 November 2013.
21. Applying the reasonable apprehension of bias test, I do not consider any reasonable fair-minded and well-informed observer would conclude that there is a real possibility that I would be biased against the Defendants.
22. At the hearing on 29 August 2013, the 2nd Defendant was given the opportunity to address me on her alleged “difficulties” in attending the hearing scheduled for 18 September 2013. The 1st Defendant, who had no reasonable cause for seeking to vacate the 18 September 2013 hearing, was also given the opportunity to address me in support of what was in substance the 2nd Defendant’s application. No complaint was made by either Defendant at the hearing that this court was biased in favour of the Plaintiffs or that they had acute concern about this court’s impartiality in dealing with the application. The application to vacate the September 2013 hearing was decided after considering all the underlying objectives set out in RHC Order 1A. It was more than six weeks later, on 16 October 2013, that the Defendants lodged a complaint to the Chief Judge of the High Court accusing this court of being biased in favour of the Plaintiffs.
23. As far as previous court hearings were concerned, there were altogether six of them.
24. On 4 March 2013, this court extended the time for the Plaintiffs to file and serve its Reply and Defence to Counterclaim until the final determination of the Plaintiffs’ summons filed on 19 February 2013.
25. On 7 March 2013, this court heard the Plaintiffs’ summons filed on 19 February 2013 and
(1) ordered the Defendants to provide to the Plaintiffs an English translation of their Defence and Counterclaim filed herein;
(2) ordered the Defendants to provide to the Plaintiffs an English translation of all further Chinese documents to be filed in court and served by them on the Plaintiffs, at the time of filing and service of the same;
(3) varied the Order this court made on 4 March 2013 such that the time for the Plaintiffs to file their Reply and Defence to Counterclaim was extended to 28 days after the Defendants had provided the English translation of their Defence and Counterclaim to them.
26. The Defendants failed to provide to the Plaintiffs an English translation of their Defence and Counterclaim within 14 days in accordance with the 7 March 2013 Order. The Plaintiffs applied for an unless order by summons dated 21 March 2013 to compel the Defendants to do so.
27. On 11 April 2013, this court heard the Plaintiffs’ summons for unless order. The 1st Defendant was absent, but upon the 2nd Defendant indicating to this court that she would comply with the 7 March 2013 Order, this court adjourned the Plaintiff’s summons and further extended the time for the Defendants to file and serve an English translation of their Defence and Counterclaim for another 14 days.
28. The Defendants still failed to comply with the 7 March 2013 Order as extended.
29. On 29 May 2013, this court, having been satisfied that the Defendants’ failure to comply with the Order made on 7 March 2013 and extended on 11 April 2013 was intentional and contumelious, made an unless order in the following terms:
“Unless the Defendants do within 7 days from today file and serve an English translation of their Defence and Counterclaim dated 4 February 2013, the Defence and Counterclaim be struck out and default judgment be entered in favour of the Plaintiffs in terms of the Statement of Claim herein.”
30. On 5 June 2013, this court heard four applications by the Defendants:
(1) First, the Defendants’ application by summons dated 20 March 2013 for leave to appeal against the 7 March 2013 Order and stay of execution pending appeal.
(2) Second, the Defendants’ application by summons dated 13 May 2013 for leave to appeal against this court’s order dated 8 May 2013 whereby a previous costs order nisi made by this court that “costs of and occasioned by the Plaintiffs’ application for an extension of time be to the Defendants” was varied on paper to “costs of and occasioned by the Plaintiffs’ summons dated 22 February 2013 for extension of time to serve their Reply and Defence to Counterclaim, as well as costs of the Plaintiff’s application to vary costs order nisi by summons dated 21 March 2013, be in the cause, to be taxed if not agreed” and stay of execution pending appeal.
(3) Third, the Defendants’ application by summons dated 29 May 2013 for leave to appeal against the Unless Order and stay of execution pending appeal.
(4) Fourth, the Defendants’ application by summons dated 29 May 2013 to compel the Plaintiffs and KWM to submit documentary proof that KWM were duly appointed and authorised by the Plaintiffs prior to the commencement of the present proceedings.
31. For reasons given in a Decision dated 5 June 2013, this court dismissed all three leave applications and stay applications. This court also dismissed the Defendants’ last-mentioned application by summons dated 29 May 2013 as misconceived.
32. Lastly, on 23 July 2013, as mentioned in paragraph 10 above, this court granted the Plaintiffs’ application for summary judgment in the sum of GBP57,500 together with interest on the ground that the Defendants had failed to show by affidavit or otherwise a defence on the merits.
33. Again applying the reasonable apprehension of bias test, I do not consider any reasonable fair-minded and well-informed observer would conclude from this court’s previous decisions that there is a real possibility that I would be biased against the Defendants.
34. At all the hearings, each of the Defendants, if they chose to turn up in court, was given the opportunity to address me in the language of their choice. Neither of them complained during or immediately after the hearings about the lack of opportunity to make submissions to this court. Neither of them raised during or immediately after the hearings any concern about this court’s impartiality. The applications before this court were all decided on their merits and strictly in accordance with the law and this court’s powers conferred by the Rules of the High Court.
35. In the view of this court, a reasonable fair-minded and well‑informed observer would instead conclude the Defendants are litigants disgruntled at not having their way before this court and hope to switch to another judge who may be more sympathetic to their cause. That is not permissible under our legal system.
Disposition
36. For the above reasons, I would dismiss the recusal application.
(Peter Ng)
Mr Denis Brock, of King & Wood Mallesons, for the plaintiffs
Mr Jeremy Cheung, instructed by Joseph Li & Co, for the defendants