MJN (formerly known as MJS) v. TMN

FCMC 2131 / 2019

[2019] HKFC 283

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 2131 OF 2019

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R U L I N G
(Recusal)

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Introduction

1.  This is a short Ruling to determine whether or not it would be appropriate for HH Judge Melloy to recuse herself from the case going forward. On the 7 August 2019 the Respondent issued a summons seeking an order inter alia in the following terms:

1.   Her Honour Judge Melloy should not adjudicate upon any further aspects of these proceedings and that all further proceedings and hearings in these proceedings should be listed before some other judge of the Family Court;  

Background

2.  By way of background, the present applications before the court concerns the arrangements for the only child of the family, a little girl EMN who was born on the XX March 2011 and is now 8 years of age. The Petitioner mother wishes to relocate to the United Kingdom with EMN and the father wishes her to remain in Hong Kong and for her care either to be shared, in the event that the mother remains in the territory, or for (sole) care and control to vest in him, in the event that the mother decides to relocate to the UK regardless.  

3.  On the 30 May 2019 there was a Children’s Dispute Resolution hearing before HH Judge Melloy. The mother was represented at that hearing by counsel. The father represented himself. The father has now raised some concerns with respect to some of the preliminary views expressed by the Judge during that hearing. In essence he does not believe that she can be impartial at trial given some of the comments made.

4.  This is a potential issue that what raised and discussed at Committee level, before the Children’s Dispute Resolution protocol was introduced. At that initial stage it was understood that litigants would have the opportunity to invite a Judge to recuse him or herself in appropriate circumstances. In reality however, this has been rarely done. This though is one such case.    

 The issue

5.  The issue then is whether or not the Judge should recuse herself from the case, given the father’s concerns, which in turn are not accepted by the mother?

Recusal – the law

6.  In considering this matter it is accepted that the court is concerned here with “apparent bias” as opposed to “actual bias”. Halsbury sets out a useful summary of the law on recusal generally at para 90. 1056 as follows:   

[90.1056] Duty of trial judge to recuse himself in appropriate circumstances It is important that the trial judge is, and is seen to be, impartial as between the parties and the trial judge should not continue to act where such is not the case. The test applied for many years by the English and Hong Kong courts was whether there was a real danger of bias on the part of the judge.

However, more recently, following the lead of the High Court of Australia, the House of Lords decided that the appropriate test for determining the existence of bias (so as to require the judge to recuse himself) should be whether a fair-minded and informed observer would consider that there was a possibility of bias on his part.  This test of the ‘fair minded and informed observer’ has now been accepted in Hong Kong and applied on several occasions.

There are other circumstances, falling outside the arena of bias, where the trial judge should recuse himself i.e. stand down so that the trial is conducted by another judge.  Such a situation might arise, for example, if the trial judge has become aware of privileged evidence.

7.  There have been a number of cases on the issue of recusal in Hong Kong including the Court of Final Appeal’s decision in Deacon v White & Case Ltd Liability Partnership [2004] 1 HKLRD 291, which was later followed by the Court of Appeal’s decision in Chau Siu Woon v Cheung Shek Kong. Reference was also made by both sides to the more recent decision in Lai Yiu Mun Susanna v Tsang Kai Choy Paul [2019] 2 HKLRD 359.     

8.  It is then clear that the test is not whether the Judge is biased against the father, as a matter of fact, but whether a fair-mind observer might come to the conclusion that there was a possibility of apparent bias going forward, given the circumstances. Would a reasonable, fair minded and well-informed individual come to the conclusion that there was a real possibility that the Judge might be biased if she were to proceed with the case and to hear the relocation/care and control trial? That is the question to be determined.  

Discussion

9.  On this occasion the father was aggrieved about a number of matters arising out of the Children’s Dispute Resolution hearing. In particular, he says that the Judge had pre formed and incorrect views about school holidays. He also took particular offence to the suggestion that his application for more time with EMN in the short term had “strategic undertones”. He also states that the characterisation of the case as “almost a classic relocation case” was inaccurate and prejudicial to him. He also felt that his view point had not been fully considered and comments that he was “given no opportunity to add or explain [his] response to Counsel’s submissions or [his] position on the points raised by Counsel and explored by the Judge”. In contrast he says that the Judge seemed more lenient and sympathetic to the mother. He adds that

16. From the above, I believe that HHJ Melloy’s various comments indicated that she has already formed a view of my opposition to the Petitioner's application.  I verily believe that HHJ Melloy prejudged my credibility, and has prematurely and unjustifiably formed a view on the pre-reading of the papers, to an extent which the comments made by HHJ Melloy were neither merely tentative or preliminary comments or findings about the case. The Social Investigation Report dated 14 February 2019, recommended that “The Petitioner Mother’s. relocation application is not supported... The Father be granted sole care and control while reasonable access be granted to the Mother”. As I indicated at paragraph 6 above, when I pointed out to HHJ Melloy that she had not addressed this factor at all, she dismissed the report saying “I’m not bound by the social worker...1 think the social worker was probably under a misapprehension about the position of the mother and certainly, if we were going to trial, I’d want an updated report.  I may also want a psychological report on E.” This indicates there may be a possible bias towards a subsequent report if it repeats the initial reports’ recommendations.

10.  The mother for her part does not accept most of the criticisms levelled against the Judge by the father. The difficulty, however, is that these appear to be the father’s strongly held views regardless and it is hard to see in such circumstances how he can be shifted from them. It is also accepted that the Judge was perhaps more frank in expressing herself than she might have been on other occasions. This was supposed to have been helpful given that the father was acting in person at the time. Unfortunately, it is clear that the father found it far from helpful.          

Conclusion 

11.  Given the circumstances, it is accepted on reading the transcript of the Children’s Dispute Resolution hearing, that a fair minded observer might come to conclusion that there could be the possibility of “apparent bias” going forward. The fact that the Judge may not be actually biased, is neither here nor there. The possibility of “apparent bias” is nevertheless a possibility. On that basis, and given the assurances given when the Children’s Dispute Resolution Practice Direction was first put into place, it seems that it would be more appropriate to err on the side of caution and to make the order that the father seeks, save that there shall be a further PTR before HH Judge Melloy in the first instance.

12.  HH Judge Melloy was told on the 6 September 2019 that the case was now ready for trial and on that premise it was ordered inter alia that the mother’s relocation summons dated the 30 November 2018 and the father’s potential summons (dated the 4 October 2019) should be set down for trial with four days reserved and that the dates would be provided by the court in due course pending the outcome of this application. Consequently, both summonses shall now be set down for trial on the 9 March 2020 at 9:30 am, with the 10 – 12 March reserved, before a judge to be confirmed. In addition, there shall be a further PTR before HH Judge Melloy on the 14 November 2019 at 11 am.  

Costs

13.  Given that the recusal summons is connected to a child related matter, the court shall exercise its discretion and make an order nisi to be made absolute in 14 days’ time that there shall be no order as to costs.