DME v. MFH

FCMC 10434/2005

[2019] HKFC 156

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO 10434 OF 2005

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J U D G M E N T

(Recusal)

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The Application

1.  This is an application taken out by the Petitioner Wife (“Wife”) by way of Summons filed on 13 November 2018 asking for me to recuse myself from this case and asking to have another Judge be assigned.  The Respondent Husband (“Husband”) opposed to the application.

2.  The Wife had filed an affirmation in support for the application (“Supporting Affirmation”) on the same day.  It is the Wife’s stance that she was “not getting fair and equal treatment in the courtroom” and “there is favouritism for the respondent [Husband]”.  In other words, there is bias.

Background of the case

3.  The Wife is now 64 years old.  As stated in her Form E filed on 16 January 2017, she is an English tutor.

4.  The Husband is now 70 years old.  According to his Form E filed on 11 February 2017, he is a company director.

5.  The parties were married in 22 March 1986.  The Petitioner took out application for divorce on 20 September 2005.  There was no child in this marriage. 

6.  On 24 October 2008, by consent, it was ordered that the Husband do pay the Wife periodical maintenance in the sum of HK$2,000 per month.

7.  Decree Absolute was granted on 28 October 2008.

8.  The Husband had remarried in 2009.

9.  Subsequently, the Wife took out application for variation of maintenance, which was disputed by the Husband.  After trial, it was ordered on 11 February 2014 that the periodical payment the Husband to pay to the Wife be increased from HK$2,000 to HK$8,000.

10.  Subsequently, there was non-compliance of the payment of maintenance.  On 3 November 2016, the Wife took out application for judgment summons.  On 1 December 2016, the Husband took out application for variation of maintenance.  The Husband asked that the obligation to pay maintenance to the Wife be discharged.

11.  The parties had been ordered to file Form E to disclose their financial satiation.

12.  There were numerous summons applications for discovery made by the parties.  The parties were not satisfied of the discovery made and there were various allegations of non-disclosure against each other.

13.  It is in the middle of these interlocutory applications for discovery that the Wife took out the present application for recusal.

The legal principles

14.  There are a number of cases in Hong Kong about the legal principles to be considered in this area.  I have considered the Court of Final Appeal’s decision in Deacon v White & Case Ltd Liability Partnership [2004] 1 HKLRD 291, the Court of Appeal decision in Chau Siu Woon v Cheung Shek Kong [2010] 3 HKLRD 49 and the Court of First Instance decision in Komal Patel and Others v Chris Au and others [2016] 1 HKLRD 328. 

15.  To summarise, it is a fundamental rule of natural justice and an abiding value of the legal system in Hong Kong that every litigant is entitled to an impartial and independent Judge, free from bias.

16.  When an application for recusal of a Judge is made, it is a matter of whether the judge might not bring an impartial and independent mind to the resolution of the question that he or she is required to determine.

17.  The reasonable apprehension of bias test is stated in paragraph 9 of the case Komal Patel and Others, which cited and adopted the test as articulated by Lord Hope of Craighead in the Court of Appeal case in the United Kingdom in Porter v Magill [2002] 2 AC 357 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.”

18.  I find paragraphs 16 and 17 of the case Komal Patel and Others especially useful and relevant for the present proceedings, which I quote below :-

“16.  It is incumbent upon judicial officers to be true to their oath of office to decide cases without fear, favour or self-interest or deceit. To this end, judicial officers are required to discharge their professional duties unless disqualified by law.

17.  Fairness dictates that a court should be actively involved in the management or control of proceedings in order to secure the just resolution of a dispute in accordance with the substantive rights of the parties.  To this end, a court is required to make decisions or give directions that may impact on the issues of the case and on the rights of the parties before the case is finally resolved but this will be done on the evidence and arguments then presented and will invariably involve the court making tentative or preliminary comments or findings about the case.  However, this is understood to be necessary for the good management and just disposal of the proceedings and subject to final determination of the case when all the evidence and arguments have been presented.  If this did not take place, the wheels of justice would come to a grinding halt.”

Discussion

19.  In the Wife’s Supporting Affirmation, she has set out the background and her reasons of the application, as follows :-

“Whereas :

A)  Deputy District Judge Ms Rita So, has clarified point/s of the law to both the respondent [Husband] and myself [Wife].

B)  She has been instrumental in the sorting out and approving the items on the Questionnaire for Further information on Form E.

C)  Judge Rita So has conducted the courtroom in the past in a very organized manner with thought. She also had been able to keep the courtroom moving forward.

Whereas:

1)  I feel I am not getting fair and equal treatment (see first instance below)

2)  Summons are often not heard on the scheduled court date.

3)  The judge allows the respondent [Husband] to be off topic and ramble on filling up the allotted time.

4)  Moving towards trial with out answers to the questions.”

20.  With each of the above 4 grounds, the Wife has further elaborated and given details in support of her application, which I will go through each of the grounds in turn.

21.  As I do not understand the 4^th ground, I asked the Wife to clarify at the hearing.  She explained that in fact the 4^th ground was referring to the same matter as the 2^nd ground, which I will consider together.

1^st Ground

22.  For the 1^st ground, the Wife is of the view that she was not getting fair and equal treatment in the court room.  She had cited 2 examples in support.  In the first example, the Wife explained in her Supporting Affirmation that,

“I am not getting fair and equal treatment on this matter in the courtroom. On June 20, 2018 Judge Rita So was giving a folio # and I asked for clarification of which summons it referred to. I was told that it did not involve me. Judge Rita So said ‘she was giving the information to assist the respondent [Husband].’ Discussions in the courtroom do involve me. At that time the judge was giving the folio number for a summons I had submitted. Date and time of this comment by Deputy Judge Rita So occurred at 10:56:19 to 10:57:17 on June 20, 2018”

23.  My understanding is that the Wife is of the view that my comment at the hearing on 20 June 2018 gave her the feeling that she was not involved, while obviously being a party the Wife is of course involved.  The Wife’s view is that the wording I used in Court gave the Wife the feeling that she was not getting fair and equal treatment in Court.

24.  The Wife’s view cannot be agreed.  What I said in Court should not be taken out of context.  On 20 June 2018, it was a call over hearing of 15 minutes.

25.  In fact, during the previous hearing on 7 February 2018, the court had heard parties’ submissions on discovery application and by consent, the Court had made orders for the parties to file and serve their respective affirmation to answer some questions asked and to provide documents.  The Court had also adjourned the case to 18 July 2018 for pre-trial review hearing and also for sorting out any outstanding discovery matters.

26.  The Wife took out a Summons on 25 April 2018 for discovery application, which is returnable on 20 June 2018.  Subsequently, the Wife took out 5 other Summons, intending for them to be heard on 20 June 2018.  In view of case management, the Court had ordered that these Summonses were to be taken out, all returnable on 20 June 2018 for call over.  Therefore for the call over hearing on 20 June 2018, the Court has to deal with the following 6 Summonses, all taken out by the Wife :-

(a)  Summons dated 25 April 2018 (with folio number 176);

(b)  Summons dated 20 April 2018 (with folio number 178).  It was pointed out by the Court and was confirmed by the Wife during the hearing on 20 June 2018 that the request made by this Summons is a duplication to the Summons already taken out and there is no need at all to repeat.  Leave was granted to the Wife to withdraw this Summons;

(c)  Summons dated 7 June 2018 (with folio number 180);

(d)  Summons dated 7 June 2018 (with folio number 182);

(e)  Summons dated 7 June 2018 (with folio number 184);

(f)  Summons dated 12 June 2018 (with folio number 186);

27.  At the hearing on 20 June 2018, both parties attended the hearing, acting in person. It is fair to say that for all the previous hearings, including the hearing on 20 June 2018, the atmosphere had not been particularly harmonious, if one is to hear all the exchanges at the hearings and the parties’ submissions.  In fact, the Court has to interrupt from time to time to ensure the proper procedure of the Court and for case management.

28.  Together with the fact that a lot of the documents were hand-written, some wordings written in the summonses and the supporting affirmations are not quite legible.  For the applications taken out, some were repeated.  There was the need to do clarification and confirmation with the parties.  In order to ensure the smooth running of the case, the court has to interrupt parties’ submissions from time to time.

29.  My understanding was that it was at a time when the Husband was making submissions and the documents could not be located.  While the Court was explaining to the Husband and giving a folio number to assist in finding the document, the Wife interrupted.  I explained that the giving of the folio number to the Husband was to assist him, so as to facilitate the smooth running of the hearing, and it did not involve the Wife, as it was not yet her turn to make submissions.

30.  Viewing the whole hearing in context, I do not agree that the Wife was not getting fair and equal treatment in Court.

31.  For the second example for this 1^st ground, the Wife explained in her Supporting Affirmation that :-

“I am not getting fair and equal treatment in this matter in the courtroom. As, I understand it, on or about December 12, 2017, folio number 161, Deputy Judge Rita So issued a court order stating that affirmations must be approved by her prior to being submitted by the desk staff on the M2 floor for processing. On July 18, 2018, I informed the judge that it appeared to me that Mr. M [the Husband] processed a document on the M2 floor of family court, without prior approval of the judge. In response to me saying this, your honor replied to me in an annoyed manner and dismissed my concern without listening to me and without any investigation whatsoever. I now know that was folio number 192 this appears unfair to me when the respondent is allowed to ramble on, as on June 20, 2018 when I am quickly stopped from speaking.”

32.  Again, I am of the view that the Wife had taken a snap shot of the hearing out of context.  First, the hearings were not for the Court to inquire and ascertain how the Wife and the Husband was respectively treated in “M2”, ie. the registry of the family court.  The Court should focus on the issues to be determined, but not to do investigation on each and every single matter raised by a party, which is not an issue to be determined.  I had exercised my discretion in active case management in not listening further to the Wife’s complaint and to focus on the issues to be dealt with at the hearing.  I disagree that it was unfair to the Wife.

33.  In relation to the hearing on 18 July 2019, I will further explain in paragraphs 41 to 47 below.

34.  In relation to the Wife’s allegation that “the respondent [Husband] is allowed to ramble on, as on June 20, 2018 when I am quickly stopped from speaking”, this is far from the truth and again, this comment is taken out of context.  If one hears the entirety of the hearing, a fair-minded person will notice that both the Wife and the Husband had been given reasonable time to make submissions. 

35.  I have to emphasise that the Court is not to give absolute equal time to each party. When exercising active case management decision, the Court has to rule according to the nature of application, the need to clarify matters with the parties and the sequence of parties making submissions, including the time allowed for them to speak.  I have to emphasise that in time when any party is making repeated or irrelevant submissions, the Court has the duty to interrupt for case management purpose.

36.  In relation to the Wife’s 1^st ground, I disagree that there is bias.

2^nd Ground

37.  For the 2^nd Ground, the Wife is of the view that summonses are often not heard on the scheduled court day.  As clarified by the Wife during the hearing, the 2^nd ground and the 4^th ground are referring to the same matters, which I will consider together.

38.  In support for these 2 grounds, the Wife provided details as follows :-

“2) Summons are often not heard on the scheduled court date. I submitted summons folio #182 on June 7, 2018. The summons is my request for the respondent [the Husband] to answer the questionnaire with the deadline of June 20, 2018. The order was not issued during that hearing or after the next hearing of July 18, 2018. In court on July 18, 2018, Judge Rita So began discussing Folio #182 and suggested to me that we should disregard my questionnaire to the respondent [the Husband]. I strongly objected at that time. Judge Rita So then told me it needed to be renumbered & we recessed. We returned to the courtroom when I finished. The points on the summons and the answers to the questionnaire are needed for me to defend myself in court.”

“4) My summons has not been properly dealt with for a court order to be issued. Leaving my questions unanswered in the wake of a trial.”

39.  After asking the Wife to clarify these points at the hearing, my understanding is that the Wife was of the view that at the hearing on 18 July 2018, her questionnaire has not been properly dealt with, leaving the questions she needs to ask unanswered in the wake of a trial.

40.  I have to point out that the summary of description by the Wife of the hearing on 18 July 2018 is largely inaccurate.  The Wife had wrongly and inaccurately presented her understanding of what happened at the hearing.

41.  At the hearing on 18 July 2018, it had originally been fixed for a pre-trial review and for outstanding discovery matters to be dealt with, in the hope that when all discovery matters are dealt with, the case could be adjourned for a date for trial.  However, in view of the Summonses taken out by the Wife, 5 Summonses had been adjourned from the call-over hearing on 20 June 2018.  The hearing on 18 July 2018 had been used for argument hearing for the various discovery applications.  Apart from the 5 Summonses that the Wife had taken out (refer to paragraph 26 above), there are other discovery applications the Court had to deal with, as follows :-

(a)  Summons dated 16 April 2018, taken out by the Wife, which was not filed;

(b)  Summons dated 13 July 2018, taken out by the Wife, which was not filed;

(c)  Summons taken out by the Husband (with folio number 190)

42.  At the end of the hearing on 18 July 2018, after hearing parties’ submissions, almost all the summonses had been disposed of, and the Court had given directions accordingly, to summarise, as follows :-

(a)  Wife’s Summons dated 16 April 2018, which was not filed, was dismissed.

(b)  Wife’s Summons dated 13 July 2018, which was not filed, was dismissed.

(c)  Wife’s Summons dated 25 April 2018 (with folio number 176) was dismissed.

(d)  Wife’s Summons dated 7 June 2018 (with folio number 180) was dismissed.

(e)  For the Wife’s Summons dated 7 June 2018 (with folio number 182), by consent, it was ordered that the Husband do file and serve an affirmation to answer some of the questions asked therein, and the matter will be adjourned to 20 November 2018.  The consolidated questionnaire of the Wife had also been adjourned to 20 November 2018 for argument hearing, with 1 day reserved.

(f)  Wife’s Summons dated 7 June 2018 (with folio number 184) was dismissed.

(g)  Wife’s Summons dated 12 June 2018 (with folio number 186) was dismissed.

(h)  For the Husband’s Summons (with folio number 190), by consent, it was ordered that the Wife do file and serve an affirmation to answer some of the questions asked therein.

43.  In relation to the Wife’s questionnaire, it was a consolidated questionnaire, with 3 parts (Part A, Part B and Part C).  There is no sequential page number.  For Part A, they are numbered as 1/8 to 8/8.  For Part B, they are numbered as 1/16 to 16/16.  For Part C, they are numbered as 1/13 to 13/13.  Out of the 36 pages of the Wife’s questionnaire, there are no question numbers.  There are different paragraphs without sequential numbering, which will be hard to be referred to, and there are statements made, which did not clearly show what the questions were.  Looking at the Wife’s questionnaire, it is fair to say that it is not easily comprehensible and it is very difficult to refer to without proper numbering and tidying up.

44.  The Husband opposed to the Wife’s questionnaire, and submitted that it was oppressive for the Wife to keep asking questions and some of them were repeating.

45.  In fact, in view of the background and relationship of the parties, and the fact that parties acted in person, the Court had asked parties to consolidate the questionnaires from the different questions and questionnaires asked.  More importantly, it is not practical and manageable with the questionnaire that the Wife had produced.  Therefore, with case management in mind, I have asked the Wife to re-number and the Court stood down for her to do so.    

46.  From the Court record, when the case resumed, it was time, well past the court’s normal time of 4:30 pm.  With the Wife having re-numbered the questionnaire, it is fair for her and the Husband to reconsider the position, to check if any questions were repeating, if any questions could be agreed and which questions were still opposed.  In fact, all but one summons had been disposed of, as I explained in paragraph 42 above.  Also in view of the time, I exercised case management decision that the summons be adjourned to another occasion, intending to give parties time to re-consider the position and to get themselves more organised for argument and submissions. 

47.  I have to point out that the questionnaire the Wife drafted had not been dismissed, but had been adjourned to 20 November 2018 for argument hearing to be further dealt with.  The trial dates had not been fixed yet.  There is no prejudice to the Wife and there is no bias. 

3^rd ground

48.  For the 3^rd ground, the Wife explained in her Supporting Affirmation that :-

“The respondent [the Husband] has been allowed on numerous occasions to ramble off topic and fill the allotted time in court. Specifically on June 20, 2018 we had a 15 minute allotted time. Your honor granted the respondent 3 minutes to speak. While the respondent ran past the 3 minutes granted, I protested several times repeated that his rambling was not on topic. Your honor allowed the respondent to use over his allotted time and not address my summons. We do not appear to be advancing to a fair trial date.”

49.  As I explained in paragraph 26 above, the hearing on 20 June 2018 was a 15-miute call over hearing, in which the Court has to deal with 6 summonses.  From the Court’s experience in how previous hearings were conducted, I had, at the beginning of the hearing, indicated a rough time limit for the parties to speak.  I reiterate that the court has to exercise discretion in case management matters.  As it was only a 15-minute call over hearing, the main focus was to get to know parties’ stance, and if possible, to dispose of the matters. If the matters were not agreed, then the matter will be adjourned for argument at the hearing already fixed to be heard on 18 July 2018.

50.  At the call over hearing on 20 June 2018, I may have allowed the Husband to go on for more than 3 minutes that I had indicated earlier as the time set for each party, but it was done in the exercise of my discretion in view of case management. Besides, the argument hearing was heard later on 18 July 2018, and as I explained in paragraphs 41 and 42 above.  I am of the view that there is no prejudice to the Wife.  There is no unfairness to any party.

Conclusion

51.  To conclude, there is no merit at all in the Wife’s application and I dismiss the Summons accordingly.

52.  I have to emphasise that there is the duty of the Judge in active case management, which I have always been doing.  The court in doing case management should not be viewed as being unfair to any party, otherwise the court cannot carry out the duty.  Without making case management decisions, the Court cannot hear and rule cases fairly.

53.  As a passing remark, I have more than once reminded parties to be reasonable and practical regarding interlocutory and discovery applications, and urged parties to focus on the main and relevant issues.  The legal principles in relation to discovery applications had also been explained to the parties, which I am not going to repeat here.  Parties are reminded that discovery applications are interlocutory applications for the preparation of the trial, and subsequently the case has to move on to trial.  Unnecessarily and unreasonably dragging on in interlocutory applications is disapproved and would not help any party in the case.

54.  In relation to costs, I see no reason why costs should not follow the event.  As the Wife’s Summons is dismissed, I order that the Petitioner should pay the costs of the Respondent, summarily assessed at HK$200.  This is a costs order nisi, which shall be made absolute within 14 days.