HUI KEE CHUN v. THE PRIVACY COMMISSIONER FOR PERSONAL DATA

HCA1980/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1980 OF 2006

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DECISION

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1. This is an application made by the plaintiff (“Mr Hui”) under Order 62 rule 35 for the review of a taxing master’s certificate.  In addition to the application under rule 35, there are also applications made under Order 62 rules 7 and 8 which in short are wasted cost order applications.

2. Only Mr Hui attended today’s hearing.  By a letter dated 5 June 2009 from the defendant’s solicitor Fred Kan & Co. (“the Firm”), they indicated that for cost-saving reason they would not be represented at today’s hearing. 

3. At the outset of this hearing, Mr Hui raised the question of whether there would be any conflict of interests on my part on the ground that I am a practising barrister and after my sitting as a Recorder I will return to private practice.  My attention was then drawn to certain exchange of correspondence.  This started with the letter dated 27 May 2009 written by Mr Hui to the Registrar of the High Court.  In paragraph 2 of this letter, Mr Hui requested that the hearing be presided by a judge instead of a Recorder or a Senior Counsel.  This letter was responded to by the Clerk to the Hon Madam Justice Chu (in her capacity as the Listing Judge) dated 1 June 2006.  I do not think I need to repeat the details of this letter, suffice it to say that this letter explained to Mr Hui that when a barrister is sitting as a Recorder he or she is discharging a judicial function and not practising as a barrister. 

4. Mr Hui was not satisfied with the answer and by a further letter dated 2 June 2009, Mr Hui reiterated his request and asked for certain directions.  Amongst others, Mr Hui sought a direction that I shall not be hearing this case as there will be a conflict of interests and particularly he referred to the application made under Order 62 rules 7 and 8. 

5. On the same day, i.e. 2 June 2009, the court responded to the letter of Mr Hui and the letter said :

6. It is unfortunate that Mr Hui’s skeleton submissions did not refer to this exchange of correspondence and such exchange was only drawn to my attention at the beginning of this hearing.  In light of the point raised by Mr Hui and in all fairness to Mr Hui, I have informed Mr Hui at the hearing that although I personally do not know the handling solicitors in question, I do know some of the solicitors in the Firm.  Further, having been alerted of this issue, I have looked at the papers again and discovered that the handling partner who was supposedly supervising the handling solicitor is Mr Fred Kan whom I know personally.  I also indicated to Mr Hui that the Firm had in the past, from time to time, instructed me and currently there is, as far as I can recall, one pending case which I, in my capacity as a practising barrister, am instructed by the Firm. 

7. In light of this and having explained to Mr Hui that if I were to accede to Mr Hui’s application for recusal, today’s hearing might have to be adjourned to another day to be fixed because it would be practically impossible to arrange another judge to take over this matter on such short notice.  Mr Hui, as I understand, has no objection if this matter is to be adjourned to another day. 

8. I fully understand why when this matter was first raised by correspondence by Mr Hui, the Registrar did not see the need to refix this hearing before another Judge.  However, having considered the matter and in all fairness to Mr Hui, I agree that I shall not deal with this case.  As is often said : “justice should not only be done, but must be seen to be done.”  In light of the fact that Mr Hui is not legally represented and to avoid any unnecessary perception of bias in the administrations of justice, I, though not without reluctance, accede to Mr Hui’s application for recusal. 

9. Therefore, I direct that this hearing be adjourned and be refixed before another Judge or another Recorder who does not have any connection or dealings with the Firm. 

10. For the avoidance of doubt, I shall make this clear.  I am not suggesting that a Recorder cannot handle application made under Order 62 rules 7 and 8.  This shall not be seen as the ratio of my decision.  Each case depends on the facts.  It is on the facts of this particular case and in light of the objection raised by Mr Hui the plaintiff that I made this decision. 

11. Further, if I may also supplement, the adjournment of this hearing would not have any costs implication because the defendant has chosen, as I indicated at the outset, not to be represented at this hearing.  Therefore, the adjournment of this hearing will not have costs implication and that is part of reason why I agree to accede to Mr Hui’s application.  For the avoidance of doubt also, I will not made any costs order for today’s hearing or the costs arising from the adjournment thereof.