LCFM formerly known as LCFM v. LSF

FCJA 2346 / 2018

[2026] HKFC 104

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION NO. 2346 OF 2018

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D E C I S I O N
(Recusal)

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Introduction

1.  This is the substantive argument of a Summons taken out by the 2^nd Applicant Husband (“A2”) dated 19/5/2025 (my emphasis) which was scheduled for the first call over hearing on 16/6/2025 (my emphasis).

2.  The 2 main reliefs sought by A2, as described by his team of Counsel Mr. Peter Barnes and Mr. Sebastian Leung in their Skeleton Submissions, inter alia, read as follows :-

(a)  His Honour Judge G. Own be recused from further participation in these proceedings, including all further hearings;

(b)  The Trial of the 2^nd Applicant’s Summons dated 4 March 2024 fixed on 17^th and 18^th June 2025 (my emphasis) be vacated and refixed for hearing before a different Judge of the Family Court.”

3.  I will refer to A2’s Summons as “Recusal Application” in this Decision.

4.  Given the dates set forth above which I emphasized and underlined, it could readily be seen that A2’s Recusal Application was taken out less than 1 month (my emphasis) before the 2-day trial scheduled to commence on 17^th and 18^th June 2025. The call-over hearing was just the  day before the trial commences (my emphasis).

Legal Representation

5.  As the docket judge overseeing these proceedings since 2018 which ended up with a Consent Order dated 18/6/2019 (”2019 Order”) to dispose of the parties’ ancillary reliefs, and now come with the submission in the Recusal Application that I have “disapproved H (A2) or his legal teams”, it may be useful to have a snapshot of the parties’ legal teams before going to the substantive parts of the Recusal Application.

6.  I will do so in a chronological order, beginning from the date of the 2019 Order until A2’s Recusal Application(s), as per the following table.

Date	Events	A1’s solicitors	A1’s Counsel	A2’s solicitors	A2’s Counsel
September 2020	A2’s 1st variation application issued	HWG		Withers
June 2023	A2’s 1st variation application be dismissed		Mr. Eugene Yim		Mr. Peter Barnes and Mr. Sebastian Leung
July 2023	A2’s change of solicitors			CRS
October 2023	A2’s leave to appeal application be dismissed by the Family Court		Mr. Eugene Yim		Mr. Richard Todd KC, Mr. Peter Barnes and Mr. Sebastian Leung
March 2024 (NB: before Court of Appeal decision)	A2’s 2nd variation application issued
September 2024	The Court of Appeal dismissed A2’s renewed application for leave to appeal (CAMP 339/2023)		Mr. Eugene Yim		Mr. Richard Todd KC, Mr. Peter Barnes and Mr. Sebastian Leung
January 2025	PTR hearing for A2’s 2nd variation application, trial date be fixed on 17-18 June 2025		Mr. Eugene Yim		Mr. Sebastian Leung
May 2025	A2’s Recusal Summons issued
16th June 2025	1st call over hearing of the Recusal Summons, trial fixed on 17-18 June 2025 is vacated		Ms. Alison Choy		Mr. Peter Barnes and Mr. Sebastian Leung

7.  “HWG” stands for Messrs. Hampton, Winter & Glynn, Solicitors; and “CRS” stands for Messrs. Charles, Russell and Speechlys, Solicitors.

Litigation History

(a)  A2’s 1^st round of application back in 2020

8.  As said, parties’ ancillary reliefs were concluded by the 2019 Order[1].

9.  On 25/9/2020, A2 took out a Summons (amended on 22/4/2021) through his then lawyers Messrs. Withers seeking variation of the 2019 Order (“1^st variation application”). In essence, A2 was seeking discharge of certain undertakings embodied in the 2019 Order.

10.  Trial of A2’s 1^st variation application lasted for 3½ days before me bitterly fought between the parties with experienced Counsel engaged on both sides. Actually the team of Counsel engaged on both sides for the present Recusal Application are the same for the trial of A2’s 1^st variation application.

11.  On 30/6/2023, I handed down my Judgment (“2023 Judgment”) dismissing A2’s 1^st variation application with costs to A1 and Certificate for Counsel; in respect of which A2 (assisted by Mr. Richard Todd K.C., leading the trial Counsel Mr. Peter Barnes and Mr. Sebastian Leung) sought leave to appeal from me.

12.  On 7/7/2023, a Notice of Change of Solicitors was filed by Messrs. CRS acting in place of Messrs. Withers for A2.

13.  On 20/10/2023, I dismissed A2’s application for leave to appeal. A2 through his present lawyers Messrs. CRS renewed his leave to appeal application before the Court of Appeal (again assisted by Mr. Richard Todd, K.C., leading the same team of Counsel Mr. Peter Barnes and Mr. Sebastian Leung).

14.  On 10/9/2024, the Court of Appeal dismissed A2’s renewed application for leave to appeal with costs to A1 and Certificate for Counsel. Matters then stayed on as they were with the “2019 Order” and my “2023 Judgment” undisturbed.

A2’s 2^nd round of application in 2024

15.  On 4/3/2024, whilst the Court of Appeal’s decision on A2’s 1^st variation application was still pending (my emphasis), A2 filed another Summons seeking discharge and replacement of certain undertakings embodied in the 2019 Order.  The Pre-trial review hearing of A2’s 2^nd variation application took place before me on 6/1/2025 (“PTR hearing”).

16.  At the PTR hearing, the same members of Counsel represented the parties, namely, Mr. Eugene Yim for A1 and only Mr. Sebastian Leung (without Mr. Peter Barnes) for A2. According to the records, the PTR hearing started at 9:45 a.m. and ended at 10:37 a.m. (that is, only around 52 minutes).  

17.  At the end of the PTR hearing, I fixed 2 days trial of A2’s 2^nd variation application to be heard on 17^th and 18^th June 2025 (that is, around 5½ months after the said PTR hearing).

A2’s grounds for seeking recusal

18.  The grounds are all related to things said and decisions made by me during the PTR hearing. A2 in his 6^th Affirmation[2] referred to various matters which his team of Counsel categorized under the following sub-headings (with reference only to the paragraph numbers in A2’s 6^th Affirmation) :-

(a)  statements made by me at the PTR[3];

(b)  the imposition of a Penal Notice[4];

(c)  the comments made by me in respect of the likelihood of an appeal[5];

(d)  the comments made by me which might suggest disapproval of A2 or his legal team[6]; and

(e)  the inappropriateness of approving the 2019 Order[7].

A1’grounds of opposition

19.  A1’s grounds of opposition are contained in her lawyer’s affirmation dated 10/6/2025[8]. In short and in gist, A1’s Counsel categorized the opposition on :-

(a)  Late application affecting Milestone date; and

(b)  Recusal application meritless.

20.  That said, summary dismissal of A2’s Recusal Application  with costs on indemnity basis was sought by A1.

Events happened subsequent to the PTR hearing

21.  A quick snapshot on this topic is important.

22.  On 18/2/2025, which was 6 weeks after the PTR hearing (my emphasis), a letter was first received from A2’s lawyers Messrs. CRS seeking leave to release the DVD audio of the PTR hearing. The reasons put forward for the need of the DVD audio are as follows :-

“We write to seek leave from this Court to release the DVD audio recording of the said PTR hearing to the parties, as there appear to be differences as to the parties’ recollection of the Judge’s indication(s) with regards to the alleged outstanding child maintenance payment from the 2nd Applicant to the 1st Applicant and whether the same is immediately due.

The exchange which took place at the said hearing will be helpful for the parties to sort out this issue, and may be relevant to the 2nd Applicant’s  defence to the intended committal proceedings (repeatedly threatened) to be issued by the 1st Applicant.”

23.  I will refer to the above passages quoted as “reasons for obtaining DVD audio”.

24.  On 21/2/2025, leave was granted for the release of the DVD audio for the reasons stated for obtaining the same.

25.  As per Messrs. CRS’s confirmation, they received the DVD audio on 28/2/2025 and forwarded it to their Counsel Mr. Peter Barnes who once attended the trial of A2’s 1^st variation application back in 2022 (but not the PTR hearing on 6/1/2025) for his consideration and advice.

26.  This was not the reasons first provided by Messrs. CRS for obtaining the DVD audio. In any event, it now turned out the DVD audio was needed for A2 or his legal team to “facilitate or structure” his case for the Recusal Application.  

27.  Despite the trial dates of 17^th and 18^th June 2025 had been fixed at the PTR hearing on 6/1/2025, there was a period of almost 2 months (that

is March and April 2025) of silence or inactivity on the part of A2 and his lawyers Messrs. CRS until late April or early May pushing hard for the Recusal Application to be issued and scheduled for an urgent hearing.

28.  On 2/5/2025, Messrs. CRS wrote to seek leave to issue A2’s Summons seeking recusal and adjournment of the 2-day trial. Worse still, this letter was not copied to A1’s lawyers and was met with, amongst others,

requisitions from this Court as to the lateness in so doing. The Court’s requisitions are contained in a letter dated 6/5/2025.

29.  It however took a week for Messrs. CRS to reply by letter dated 13/5/2025 to the Court’s requisitions. As to lateness in the application, it was said :-

“ The Court will of course appreciate that an application of this nature is not to be made lightly, but after very careful consideration and upon appropriate advice being given.

We are aware of the desirability for the Application to have been issued
as soon as possible for better case management purposes and had worked to prepare and finalize the Application in around 7 weeks, taking into account the intervening public holidays (Ching Ming and Easter holidays)”

30.  On 16/5/2025, I decided to grant leave for Messrs. CRS to approach Listing Officer for A2’s Recusal Application despite the fact that there was an earlier Order of Master E Yeung dated 6/8/2024 prohibiting interlocutory application.

Reasons in general for seeking recusal

31.  In general, recusal applications are brought if a litigant (legally represented or unrepresented) was genuinely concerned with his or her case not be fairly adjudicated or determined in due process of the law. The judge of whom recusal was sought would be said (or criticized) to have “taken side” or “pre-judged/pre-determined” on any issue or over the case which led to a “reasonable bystander” or an “independent and fair-minded observer” who might reasonably apprehend that the judge would not fairly consider the case upon the evidence or discharge his/her judicial functions

impartially at the standard which was expected of him/her by the general public including the parties of the case.

Submission of “pre-judged/pre-determination” by A2

32.  A2’s team of Counsel Mr. Peter Barnes and Mr. Sebastian Leung referred me to the case of Falcon Private Bank Ltd v. Borry [2014] 3 HKLRD 375.  Actually this was the only case that I was referred to by A2’s team of Counsel without any specific submission as to the nature or extent of “bias”, be it actual or apparent, save as to words said by me and directions granted at the PTR hearing.

33.  On the part of A1, and indeed their contention, it was that A2’s Recusal Application was (a) belatedly lodged at the eleventh hour; if allowed or not dismissed summarily, would necessarily derail the 2-day trial which are milestone dates; and (b) A2’s Recusal Application was without merits. Given careful consideration, I decided to exercise my case management powers and discretion to strike a balance between the prejudice (if any) brought upon A1 and the injustice (if any) to A2 if the Recusal Application was summarily dismissed outright at the first call over hearing on 16/6/2025 urged upon me to do so by A1’s Counsel Miss Alison Choy.

34.  Noting A2’s grounds for seeking my recusal hinged upon things happened during the PTR hearing before me, I decided that it would be fair for A2 to be given a chance to fully argue his case for my recusal.  Given that the 2-day trial was to vary the 2019 Order which A2 was long dis-satisfied with (as shown by A2’s repetitive attempts to vary) whilst A1 was

contended with it to continue, any unavoidable delay or derailment of the 2-day trial would affect A2 more than A1. Having said, I believe such undesirable impact over A2 must have been at the forefront of his lawyers Messrs. CRS before seeking my recusal.  The delay in resolving A2’s intended 2^nd variation was clearly noted by A2 who, apart from seeking my recusal, also seeking re-fixing the upcoming trial before another judge.

35.  At the end, I decided to vacate the 2-day trial. A2’s Recusal Application was scheduled for substantial argument on the submission that I have “pre-judged/pre-determined” against A2 on his 2^nd variation, let alone any other views that I was “bias” be it actual and/or apparent bias without any differentiation.

The test for apparent bias

36.  First and foremost, on the topic of apparent bias, in 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.”

37.  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 it was 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.”

38.  In the same case of Falcon [2014] 3 HKLRD 375, where the Court of Appeal (Date of Judgment : 10 September 2013) 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 Football Union, 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. (Emphasis added)
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 conclusion based 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).”

39.  In the later 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 v Magill [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 Falcon Private 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 Helow v Secretary of State for 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.”

Some important observation

40.  At the outset, I wish to highlight the importance and necessity of obtaining official transcripts of hearing if a party wishes to recite and refer to words spoken during a court hearing. As I said above[9], Messrs. CRS only applied for and obtained DVD audio of the PTR hearing without obtaining official transcripts of the same. Nonetheless, Messrs. CRS decided to extract and transcribe into words by their own effort part of the DVD audio and then adduced them as evidence to substantiate A2’s grounds for my recusal. With respect, this is not good or acceptable practice, if not incorrect.

41.  At this juncture, I should perhaps mention that in another case of WSSA v SYH (FCMC No.4633 of 2020)[10], date of decision : 30/6/2023, which was also a case for recusing me from the case lodged by the husband for “…….…what had happened at the hearing on 7/9/2021…….”[11]. Coincidentally, the husband in that case was represented by Messrs. Withers, the same firm of lawyers represented A2 earlier in this case from whom Messrs. CRS took over.

42.  In my Reasons for Decision in the WSSA case (supra), it can be seen that Messrs. Withers had adduced the official transcripts of what I said (including words exchanged with Counsel at the said hearing on 7/9/2021) which I have quoted the relevant parts of the official transcripts in my Reasons for Decision.[12]  Despite the said hearing on 7/9/2021 lasted for around 3 ¼ hours (from 10:55 am to 1:03 pm and from 4:35 pm to 5:46 pm) and the official transcripts are voluminous, the need and good practice of producing official transcripts had been observed. Comparing with the PTR hearing in this case which lasted for only 52 minutes (from 9:45 am to 10:37 am)[13], I failed to see why such good practice was not or need not be observed nor was there any explanation provided by A2’s legal team for not so doing. 

43.  On such unorthodox way of arranging DVD audio evidence, I have a few observations.

44.  First, there is always the risk of incorrect transcriptions.

45.  Secondly. there is always the risk (and indeed it was contended by A1 in the present case), that the transcriptions were referred to out of their proper context and thus, even correctly transcribed, could not be relied upon in isolation without viewing what was said before and/or after those words quoted; and also to consider the underlying background and/or circumstances under which those quoted words came along. Without the full official transcripts in place, there could always be the risk of, using the Chinese colloquial maxim (斷章取義).

46.  Thirdly, in the absence of official transcripts. it incredibly increases the workload of the Court and the other party to search and look for which part of the DVD audio was the transcribed (assuming that they were correctly done) came out from. Worse still, I noticed that the time of the DVD audio from where the transcribed words were made was not stated

anywhere by A2 at paragraphs 32 to 49 of his 6^th Affirmation of in his team of Counsel’s Skeleton Submissions. This is outrageous if not disastrous. It was never the task or obligation of the Court to go through the DVD audio to search and find where the quoted words or sentence come from.

47.  Fourthly, legal practitioners are always expected to assist the Court and to safeguard his/her client’s best interests on whatever applications they are instructed to pursue in accordance with the rules, procedure and Practice Directions. For practitioners experienced in civil and family law cases to (i) produce unofficial and self-transcribed contents of audio recording; and (ii) to put forward and rely upon (and yet without any identification as to which part of the audio was it); and (iii) adducing them as material evidence for the Court’s consideration is totally unacceptable, let alone any issue as to professional standards or competence.  

48.  Given the impact and importance of Recusal Application (which Messrs. CRS rightly agreed in their letter dated 13/5/2025)[14], in respect of which full and complete text of the official transcripts are an integral part of the evidence, there could hardly be an room for me to consider the self-transcribed, unidentified and unofficial extract of words and sentences to substantiate A2’s case for my recusal.  

49.  Further, with the assurance of Messrs. CRS stated in their letter of 13/5/2025 aforesaid that careful consideration had been given before making the Recusal Application and, Counsel Mr. Peter Barnes’s advice and assistance had been sought and further; it also took nearly 2 months (or to be precise 7 weeks) to prepare and finalize the Application[15], there could hardly be any plausible reasons or explanation for pursing the Application in the way as it was before me.

50.  With these important observation in mind and as caveat, I would now consider each of the grounds relied on by A2’s and his team of Counsel, followed by my views on A1’s grounds of opposition.

Discussion and Analysis

51.  A2’s first complaint referred to remarks and comments made by me which he chose to set out in paragraph 32 of his 6^th Affirmation which I now reproduced hereunder :-

a.	“Of course you can advise your client properly on the terms of the Order. The Order didn’t say the HK$10,000 dollars for any specific purposes, but you are trying to say there was a specific purpose”
b.	“Because I have in mind, this matter has been out of this Court for a while since my decision. And now we have the trial, 2 days trial. And with past experience, I have no idea whether my decision would be taken up further on by either party at the end of the day. It will take a long time, a very long time.”
c.	“I was also informed that during this period of time no payment have been made in respect of my order paragraph 2 and as I said the order was valid unless and until it was set aside, or dismissed, or overturned on appeal. In light of what has happened in the past, where there is, of course the parties’ right to bring matter forward, as in the last occasion after my decision in terms of the variation now before me. If that happens then of course the matter will be further delayed for some time. This matter had once been delayed with the appealing procedure so I decided on case management reasons I endorse a penal notice on my order on 2019 and of course I would believe the parties would have sufficient legal advice as to what that actually means, so penal notice be endorsed on the maintenance order.”

52.  It was said by A2 that these statements, taken cumulatively would pose a reasonable apprehension that I was “biased” against him; or had already formed a negative view on the merits of his 2^nd variation. This was, in my decision, totally unsubstantiated.

53.  Viewed upon the statements made by me properly and in their proper context, what was said was nothing more than a clear reflection of the latest state of affairs whilst, as the docket judge overseeing this case since 2018, was able and entitled to do so. It could hardly be denied by A2 that the statements were made to both parties’ (my emphasis) on their respective rights on appeal without aiming at or targeting A1 or A2. Hence, A2 should not arbitrarily, if not unscrupulously, seized upon such unequivocal statements and twisting them around to say that he had been “targeted” as the losing party and that he was the one who would be appealing.

54.  Given both parties are Chinese, I may perhaps borrow the Chinese colloquial maxim (此地無銀) to describe A2’s mind set for raising such complaint as one of his grounds for seeking my recusal.

55.  A2’s second complaint was that there was “bias” on my part against him when I decided to add a Penal Notice to the 2019 Order when (i) this was not requested for by A1; (ii) there was no application to “amend” the 2019 Order to add the Penal Notice; and (iii) there was no chance given to Counsel, in particular, A2’s Counsel Mr. Sebestian Leung who attended the PTR hearing to make submissions before I decided to add the Penal Notice. In my decision, this complaint is a complete non-starter, if not misunderstanding of the nature and effect of a Penal Notice.

56.  Penal Notice, as the name implies, is a notice to parties drawing his or her attention the need to follow or abide by the terms of the order that they are subjected to.  In the event of non-compliance, the disobedient party will face punitive sanctions and consequences will follow. To a certain extent, the Penal Notice carries with it a degree of coerciveness ensuring compliance upholding due process of the law. The addition of the Penal Notice by me on the 2019 Order (which was dated 18/6/2019) was necessitated by the withdrawal of children maintenance payment by A2 which was revealed by A1’s Counsel Mr. Yim during the PTR hearing.

57.  It has always been the duty of the Court to uphold the sanctity of their orders ensuring compliance and not condoning breach or non-compliance which came to their notice. Since most of the time A2 was legally represented, I believed he must have been advised such duty of the Court. The addition of the Penal Notice arose out of his non-compliance (or to be fair to A2, defective compliance) when he did not directly pay A1 pursuant to the terms of the 2019 Order. Thus, addition of the Penal Notice should not be something unexpected of by A2 or his legal team.

58.  In my decision, the Court in the discharge of  its duty to uphold justice does not call for the need to give reminders to the party in breach (especially when he/she was legally represented); nor was there any need to give advance notice to the disobedient party as the punitive sanctions of “liable for contempt” were spelt out well and loud by the clear wordings of the Penal Notice; nor does it require any application by the other party entitled to enforce the order against the disobedient party. The jurisdiction of the Court to do so is inherent and justification highly manifested.

59.  A2’s other complaint that the 2019 Order was “amended” by me with the addition of the Penal Notice could not stand. A2’s team of Counsel, with respect, was unable to convince me, or had they ever attempted to argue, that the 2019 Order should have come with a Penal Notice in the first place which, for reasons unknown, had been accidentally left out when it was sealed and perfected.  In my decision, it was only in such a scenario of accidental omission that the notion of “amendment” under the “slip rule”[16] clicks in which would then call for a Summons or an application for amendment by way of Summons.

60.  On the topic of Penal Notice, there was A2’s other complaint that I only invited Counsel’s submissions after I decided to add the Penal Notice but not before. Whilst this might be the case (but subject to the official transcripts), A2’s team of Counsel again, with respect, missed the point.  For the reasons as to adding the Penal Notice which I outlined, the submissions that I had invited was clearly aimed at matters other than the Penal Notice. According to my recollection (but again subject to the official transcripts), A2’s Counsel Mr. Sebastian Leung clearly and firmly replied to my invitation on submissions in the negative. Such complaint of A2 is clearly an “after-thought” for otherwise, why Mr. Sebastian Leung did not voice out this complaint there and then and only do so now some 5½  months later as one of the grounds for my recusal ?  Any competent Counsel would have done so without any hesitation or delay.

61.  At paragraph 9 of A2’s 7^th Affirmation in Reply[17], A2 deposed to the threats from A1 on issuing committal proceedings on the strength of the Penal Notice that I added.  It was also said by A2 that there was an Order granted by Master E Yeung to stay A1’s garnishee proceedings Since A1’s garnishee proceedings against him had been stayed pending determination of his other Summons on the children’s schooling, the addition of the Penal Notice by me provided an avenue for A1 to proceed to commit him for contempt. As a pragmatic measure, and to prevent committal proceedings brought by A1, A2 said he had resumed payment pursuant to the terms of the 2019 Order.[18]

62.  I failed to see the logic of what A2 said at paragraphs 9 and 10 of his 7^th Affirmation.  For those reasons that I set out at paragraph 57 of this Decision on adding the Penal Notice to the 2019 Order, of which Order A2 had tried to vary and also to appeal but both was failed, and also there was no order for stay of the 2019 Order (my emphasis), A2’s default in compliance would never be condoned by any court of law, with no exception to this Court.  With such underlying facts, how could A2 still boldly or justifiably say or complain to the addition of a Penal Notice to ensure his compliance of what he was ordered to do as a matter of law.

63.  From what A2 had deposed to at paragraphs 9 and 10 aforesaid, it was plain and obvious that but for the addition of the Penal Notice, he would not have resumed payment. That said, A2 did not seem to have any insight of his breach of the 2019 Order. The fact of resumption of payment proves the addition of the Penal Notice was correct and necessary.

64.  As to A2’s complaint that the Penal Notice provided A1 with an avenue to issue committal proceedings to which he had successfully prevented or avoided by resuming payment, I have 3 observations. First, A2’s subsequent resumption of payment was, as a matter of law, acts to purge the contempt already committed by him rather than his prevention or avoidance of the cause for committal to arise. Secondly, committal proceedings should only be taken as the last resort, there are all reasons for it not to be taken by A1 at this stage. Thirdly, given that leave to issue committal proceedings was required under the rules[19] which had yet to be obtained by A1, such submission by A2 does not even get off the ground.

65.  Hence, the alleged impact of the addition of the Penal Notice exposing A2 to committal proceedings surely would not lead to any independent, well informed and fair-minded observer an apprehension that I was “bias” against A2 as he now alleged.

66.  There is the “golden rule” in litigation that “Court orders are made which need to be complied with”. This should always be at the forefront of legal practitioners with Counsel and solicitors alike. As shown in the table at paragraph 6 above, most of the time A2 was legally represented by experienced family law practitioners assisted by the same team of Counsel. A2 could hardly dispute not knowing or advised of such “golden rule” . The addition of the Penal Notice was simply to enhance and ensure the observance of such rule which has now been unscrupulously twisted as an act of “bias” of this Court.

67.  There was A2’s complaint that there was “bias” over his legal team for my enquiry made with Messrs. CRS of the unsigned Form H. Given that producing unsigned Form H was not in line with Practice Direction 15.11 and such enquiry was made under my case management powers, this could hardly be taken as any act of “bias” over his legal team.

68.  Lastly, on A2’s submission on the appropriateness of approving the 2019 Order, as one of his grounds for seeking recusal, this would be bound to fail. Any dissatisfaction of the 2019 Order would have to be dealt with by way of appeal, which A2 had sought leave from this Court and the Court of Appeal, but both failed.

69.  In conclusion, I decided that none of the grounds put forward by A2 could support his Recusal Application. A2’s Summons dated 19/5/2025 must be dismissed.

A1’s submissions in opposition

70.  On the first contention that A2 brought his Recusal Application at the eleventh hour, I agree. Nonetheless, given A2’s application was to seek recusal of the docket judge to be the trial judge for the upcoming 2-day trial starting on the day following the call-over hearing, I decided on all fairness to A2 to exercise my case management powers to vacate the milestone trial dates to provide A2 the fair chance of full argument of his Recusal Application. As I said earlier, derailment of the trial would have a much significant impact on A2 as the trial was related to A2’s 2^nd variation application whilst A1 was at the other end to oppose.

71.  On the topic of lateness, which at one stage I had raised with Messrs. CRS in one of my requisitions[20], the answer given to me as per their letter dated 13/5/2025[21] are, amongst others, as follows :-

“……The letter from this Court granting leave for the said audio recording

be released to the parties dated 21 February was only received by our firm by post on 28 February 2025 (Friday).

We approached the Registry at the first opportunity and obtained the

DVD on 3 March 2025 (Monday). We subsequently provided the said

DVD to our Trial Counsel Peter Barnes (who did not attend the PTR

hearing) for his consideration and to advise on the Application.

The Court will of course appreciate that application of this nature is not

to be made lightly, but after very careful consideration and upon

appropriate advice being given.

We are aware of the desirability for the Application to have been issued

as soon as possible for better case management purposes and had worked

to prepare and finalize the Application in around 7 weeks, taking into

account the intervening public holidays (Ching Ming and Easter

holidays)”

Contention on delay - the time span of 7 weeks

72.  Noting the amass experience of Mr. Barnes in matrimonial cases and he was the trial Counsel (also leading Counsel Mr. Sebastian Leung) for A2’s 1^st variation of the 2019 Order thus knowing quite well background of the case, and now was also assisted by his able assistant Mr. Sebastian Leung who attended the 52-minute PTR hearing on 6/1/2025, the time of 7 weeks taken for listening the 52-minute DVD audio (which I believe he would also be assisted by briefing from his able assistant Mr. Sebastian Leung) appears to me long and unusual even taking into account the intervening holidays and other work commitments of Mr. Barnes.

73.  When forming such views, I have also taken into account that the supporting 6^th Affirmation of A2 was only 10½ pages long in total and without any exhibits. Excluding the opening paragraphs and concluding jurat, it was only around 8 pages long. The bulk of the contents were reciting some historical background (which Mr. Barnes and Mr. Leung must be familiar with).

Contention on Merits

74.  As to A1’s other contention that A1’s Application was meritless, I agree. I stand by my analysis and discussion in the preceding paragraphs of this Decision.

Conclusion

75.  I decided that A2 fails in his Recusal Application.

Costs

76.  As I said earlier, Miss Alison Choy Counsel for A1 who attended the first call over hearing on 16/6/2025 invited me to dismiss outright A2’s Summons for recusal with costs on indemnity basis, citing authorities of Town Planning Board v Society for protection of the Harbour Limited (2004) 7 HKCFAR 281 and King Fung Vacuum Ltd v. Toto Toys Ltd [2006] 2 HKLRD 785.

77.  The Town Planning Board case involved proceedings instituted in public interest with consideration of general public importance. The King Fung case involved interlocutory injunctions where the party instigating such application failed to act promptly. There was a period of unexplained delay of 6 weeks in the King Fung case.

78.  Costs are always in the broad discretion of the Court as to how costs should be paid and on what basis costs should be awarded. However, the Courts must exercise its discretion fairly and in accordance with principles, after taking into account relevant considerations which indicated that the case possessed special and unusual features (see Town Planning Board case (supra).

79.  Given careful consideration to all the circumstances and background of this case, I am minded to say there are no special and unusual feature in A2’s Recusal Application save for his mis-trust on the Court’s administration of justice. In any event, I decided that indemnity basis of costs is not fair and appropriate.

80.  With the complete failure of A2 on his Recusal Application, I decided that the usual order of costs to follow the event (including all costs reserved) must be granted to achieve justice. I will so order.

81.  On the perspective of equality of arms, I decided that there will also be Certificate for Counsel Mr. Yim for A1 who have had to contest with 2 Counsel Mr. Barnes and Mr. Leung throughout.

82.  Given the nature if Recusal Application, I also decided that costs awarded (including Counsel fees) have to be paid forthwith by A2 to A, to be taxed if not agreed.

Orders

83.  I now grant the following Orders :-

(a)  A2’s Summons dated 19/5/2025 be dismissed;

(b)  A2 do pay to A1 all costs of and occasioned by the said Summons, including all costs reserved, on party and party basis, to be taxed if not agreed and be paid forthwith;

(c)  There be Certificate for Counsel.

84.  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.

Others

85.  As the Recusal Application had now been decided, A2’s 2^nd variation application as per his 4/3/2024 Summons would have to be restored for trial. With the benefit of hindsight, had the original trial dates

of 17^th and 18^th June 2025 been utilized, A2’s 4/3/2024 Summons by now would have been disposed of one way or the other.

86.  Last but not least, I wish to thank parties’ legal team and Counsel for their valuable assistance to this Court.