ZEE MARGARET v. WONG TSENG HON

HCA 2190/2016

[2019] HKCFI 647

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2190 OF 2016

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RULING

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1.  There is before me an application by the defendant, made orally,that I recuse myself from these proceedings.

2.  This application arose in this way.

3.  In the course of the opening, it occurred to me for the first time that I might have come across the plaintiff when I saw her in the public gallery,but I could not remember in what context.

4.  Upon making enquiries over the morning break, I realised that she had been a witness (and interested party, although not a formal party) in arbitral proceedings (“the Other Proceedings”) conducted about 5 years ago,whereas I had acted as counsel for the other side and cross-examined her.

5.  I only had a very vague recollection about the facts and issues in that case.

6.  I therefore invited the parties to consider their own positions in light of the above.  I adjourned to the afternoon for the parties to make any application they saw fit.

7.  Mr Hectar Pun SC, leading counsel for the plaintiff, indicated that he had been able to go through some of the papers in that arbitration and did not wish to make any recusal application.  He was content for me to try the case.

8.  Mr Brian Wong, counsel for the defendant, informed me that his client instructed him to apply for me to recuse myself.

9.  While the Other Proceedings did not concern the defendant client, and my professional involvement was on the opposite side of the plaintiff, counsel for the defendant was concerned that it may give rise to an appearance of “reverse bias” (for want of a better word) which would operate to the disadvantage of his client.

10.  In Superb Quo Ltd v Lee Yuen Cheung Co Ltd & others HCMP 29/2011 (14 February 2011), Le Pichon JA at paragraph 14 made the following observations regarding subconscious bias:

“ Subconscious bias operates subtly and imperceptibly. The process could be said to be insidious. Because of its very nature, ‘hard’ evidence is seldom (if ever) available. But it does not follow that absent such evidence, it would not be possible to arrive at an objective view based on known facts as to whether or not there is a real possibility of subconscious bias. I do not accept that any such view has to be rejected as speculative.”

11.  After hearing the application, I indicated that I would give my ruling at 10 am the following morning together with brief reasons given the time constraints.

12.  The law in this area has been comprehensively set out in a number of Hong Kong decisions: Deacons v White & Case LLP (2003) 6 HKCFAR 322 at paragraphs 18 – 24; and the two recent decisions of Zervos J (as Zervos JA then was) in Komal Patel v Chris Au [2016] 1 HKLRD 328 and ZN v Secretary for Justice [2016] 1 HKLRD 174.

13.  It is not always easy to identify where the line lies.  I note in Superb Quo (supra) that not all members of the Court were in agreement on whether a case of apparent bias had been made out.

14.  Mr Pun SC rightly reminded me that in the present exercise, when considering the matter from the fair-minded observer, he/she will always reserve judgment on every point until he/she has seen and fully understood both sides of the argument and will not be unduly sensitive or suspicious.

15.  The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased, but this should cover more broadly all relevant circumstances, and then ask whether the circumstances would lead a fair-minded observer to conclude that there was a real possibility that the judge was biased.

16.  He further highlighted the observations of Mason J (as his Lordship then was) in Re JRL, ex parte CJL (1986) 161 CLR 342, 352 where he held that:

“ 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 disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”

17.  I have reminded myself that it is incumbent on an applicant in a case such as the present to show a logical connection between the asserted apprehension of bias and a particular fact or issue in the case.

18.  I explored with Mr Wong whether the present case in fact turned on testimony and credibility at all.  As I had observed in the course of Mr Pun SC’s opening, having read all the papers (and they are not at all voluminous) it struck me that the present dispute was basically about contractual interpretation, and what the witnesses had to say was of secondary importance.

19.  Notwithstanding that I have very real doubts as to whether anything will turn on cross-examination, having heard Mr Wong I cannot rule out at this stage that it will be irrelevant for certain.  This is of course one relevant consideration.

20.  In Locabail (UK) Ltd v Bayfield Properties Ltd[2000] QB 451,a decision which of course pre-dates Porter v Magill [2002] 2 AC 357, the English Court of Appeal considered at 480B–D that:

“ It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot, however, conceive of circumstances in which an objection could be soundly based onthe religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family; or previous political associations; ormembership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party[1], solicitor or advocate engaged in a case before him; or membership of the same Inn, circuit, local Law Society or chambers (see K.F.T.C.I.C.v.Icori Estero S.p.A. (Court of Appeal of Paris, 28 June 1991, International Arbitration Report, vol. 6, 8/91)).”

(my emphasis)

21.  This passage is cited with approval by Zervos J in ZN (supra) at paragraph 47.

22.  While the principles are clear, the application of them is less straightforward as the circumstances can vary.

23.  One additional and significant factor in the present case is that one party (the defendant) is unable to fully ascertain and understand my involvement in the Other Proceedings.

24.  Given that these arose in the context of arbitration, involving none of the parties to the present proceedings, it is not possible and it is not open for the defendant to be able to get clarity, whereas as I understand it, the plaintiff can.

25.  It is also not possible for me to explain with any level of detail to the defendant my involvement and the factual matrix involved in the Other Proceedings for the same reasons.

26.  I have refreshed my memory as to my involvement and while I will say nothing specific for the reasons explained above, I consider that in all the circumstances, a fair-minded and informed observer, having considered the facts (and assuming that he would be fully cognisant of my involvement in the Other Proceedings), would conclude that there was a real possibility that the tribunal could be biased.

27.  Justice must be done and must be seen to be done.  In circumstances such as the present where the defendant is effectively and has to remain in the dark, I can understand that from his perspective there would always be a lurking doubt in his mind.

28.  As Zervos J observed in ZN (supra) at paragraph 25:

“ It is deeply rooted in the common law that the appearance of impartiality is essential for public confidence in the administration of justice. This is founded on the principle that justice should not only be done, but should be seen to be done.”

29.  In Superb Quo (supra), Rogers VP at paragraph 1 cautioned that:

“ Clearly, the purpose of judicial proceedings is to arrive at a conclusion where, whatever the outcome, the parties can rest assured it has been arrived at without any possibility of bias. Hence, were there any doubt about the matter I consider that a court should always come a decision would do the least harm [sic] or to put it in a more colloquial way ‘err on the side of caution’.”

30.  It is thus with regret that I accede to the application and will give further directions as to the conduct of these proceedings.