T v. W

FCMP 38/2007

[2023] HKFC 166

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 38 OF 2007

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D E C I S I O N

(RECUSAL)

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Application

1.  This case has a very long history.  We have now come to a stage where a committal summons against the Respondent (“the father”) has been fixed to be heard by me in a week’s time, i.e. on 23-24 August 2023.  But on 19 July 2023, the father issued the present summons asking for:

(1)  I shall recuse myself from further hearing these proceedings; and

(2)  A stay of proceeding and the hearing on 23-24 August 2023 to be adjourned pending the result of the father’s recusal application.

2.  The Applicant (“the mother”) was represented by Mr. Jeffrey Li of counsel and raised objection to this application of recusal.  As the committal hearing is imminent, I have decided to give a short decision after hearing the parties’ respective submissions.

3.  As can be seen from the father’s supporting affirmation (at §6), he is saying that I have actual or apparent bias against him, and therefore the coming committal hearing will not be heard before an impartial tribunal pursuant to Article 10 of the Bill of Rights (“BoR”).  Despite the allegation of actual bias, the father went on to say (again at § 6), that he was not “challenging the Judge’s integrity, but the appearance of bias warrants recusal to preserve my rights to a fair trial.”  At today’s hearing, the father confirmed that he is now relying on apparent bias only, but not on actual bias.

The Law on Recusal

4.  There is no dispute that a judge should recuse himself from the case if he is biased.  Bias may be in the form of actual bias or apparent bias.  Recusal as a result of actual bias is quite easy to understand and requires no detailed discussion.  A Judge having actual bias against a party should of course recuse himself as there will not be a fair and impartial hearing.  As to apparent bias, the test is whether a fair-minded and informed observer would conclude that there was a real possibility of bias on all the circumstances of the case known to him: per Cheung JA in Chan Siu Woon v Cheung Shek Kong and others [2010] 3 HKLRD 49 at §§12-13.

Discussion

5.  By reading the father’s supporting affirmation, his allegations on apparent bias are based on 4 broad grounds:

(1)  Unreasonable negative inferences being drawn against him in previous hearings.

(2)  The hearing of a Hadkinson application without a proper summons or notice.

(3)  Reference being made to the father’s occupation as a solicitor.

(4)  Favourable assumptions being made regarding the mother’s position.

6.  I will discuss Grounds (1) and (4) together.

7.  On 22 September 2020, I handed down a judgment after trial disposing of the mother’s application for upward adjustment of maintenance and the father’s 2 applications for down ward adjustment of maintenance payable by him.  In the judgment, I have drawn some adverse inferences against the father after I was satisfied that he had failed to give full and frank disclosure of his finances (§§95-112 of the Judgment).   It will serve no useful purpose to repeat all those findings here, except to say that the making of adverse inferences, or finding of facts for or against a party after trial happens all the time.  They cannot be regarded as bias per se.  After the father had failed to obtain leave from this court to appeal, he made no further attempt to overturn those findings by taking the matter to a higher court.  He must be taken to have accepted those findings. 

8.  It is also worth noting that in his draft grounds of appeal and written submissions to this court on 5 October 2020, the father relied on various grounds to say why the judgment or findings were erroneous, but bias had never been one of them.  In other words, the allegation of bias is only raised for the first time here, i.e. 3 years after the judgment.  It lends support to the suggestion that this is purely an attempt to derail the committal proceeding which is coming up in a week’s time. In my judgment, there are no merits in Grounds (1) and (4).

9.  As to Ground (2) on the Hadkinson hearing, the father’s objection has to be considered in context. 

10.  In the year of 2019, the mother issued an application for an upward variation of maintenance.  In response, the father issued 2 applications for down ward variation of maintenance, one on 25 February 2019 from HK$50,000 to HK$28,000 per month, another one on 28 June 2019 from HK$50,000 to HK$16,500.  The Judgment on those 3 applications were handed down on 22 September 2020 wherein the mother succeeded in raising the maintenance from HK$50,000 to HK$52,000 whilst the father’s 2 applications for downward variation were dismissed.  But shortly before the judgment was handed down, i.e. on 1 September 2020, the father issued a third summons for further downward variation of the maintenance to nil, the trial of which was later fixed on 24-25 June 2021.

11.  When this court prepared for the trial of the father’s third summons, it has become obvious that the father’s repeated applications and/or the continuation of the third application within such a short period of time may amount to an abuse of the court’s process.  It was my view that this abuse of court process should not be allowed to continue and so a notice was sent to both parties on 22 June 2021 alerting them that the court might consider to exercise its Hadkinson powers at the coming trial. 

12.  At the first day of trial, counsel for the mother asked the court to exercise its Hadkinson powers.   The father said the Hadkinson principles did not apply.  But he agreed to deal with the Hadkinson application first and indicated that he could proceed with the argument.  The matter was then adjourned to the next day, i.e. 25 June 2021 for hearing the parties’ submissions.  On 24 August 2021, the court handed down its decision exercising its Hadkinson powers to stay the father’s third application unless and until he has paid up the 2 sums of HK$328,500 and HK$100,000 of arrears of maintenance.  No attempt was made to appeal against that decision.

13.  It may be true to say that the Hadkinson application was heard without a formal summons being issued.  But in view of the clear abuse of the court’s process by the father, this court has a duty to stop such abuse by exercising its Hadkinson powers.  The interests of the 2 minors were at stake and the wastage of the court’s valuable time and resources had to be stopped.  By looking at the matter from this perspective, I am not convinced that a fair-minded and informed observer would come to a conclusion that there was a real possibility of bias against the father.

14.  Ground (3) concerns with the fact that I have mentioned, may be more than once, the father’s occupation as a practising solicitor in the Judgment.  This is a fact of which I do not think he is now disputing.  The father’s occupation must be one of the relevant factors to be considered in determining his earning capacity, or his understanding of the court process. I do not think a fair-minded and informed observer would come to a conclusion that there was a real possibility of bias against the father in this regard.

Conclusion and Order

15.  Based on the above discussion, I am not convinced that the father has made out a case of actual or apparent bias.  The father’s summons dated 19 July 2023 for recusal and adjournment is dismissed.

Costs

16.  Costs to follow event. The mother is given the costs of the summons on a party and party basis, with certificate for counsel, and such costs are to be taxed if not agreed.  As to the mother’s own costs, they will be taxed in accordance with Legal Aid Regulations.

Representation: