NPYJ v. SMRC

FCMC 9098/2018

[2021] HKFC 47

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9098 OF 2018

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JUDGMENT

(Recusal)

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Background

1.  The respondent husband took out his summons on 31 December 2020 for the following:

(1)  That I should not adjudicate further upon any aspects of this case, including but not limited to the children matters and the finance matters;

(2)  That this case be listed before another family judge, but not HHJ A Tse, HHJ S Lo or Deputy District Judge J Chow;

(3)  All proceedings be stayed until the final determination of this recusal application;

(4)  The petitioner wife do bear his costs on an indemnity basis.

2.  This is his 3^rd application for recusal of the docket judges of Family Court of this case.[1] No recusal order was formally made for his previous recusal applications, partly due to the fact that the said docket judges were already or would be deployed out of the Family Court at the time of the relevant applications.

3.  This is also the 4^th judgment handed down by me since I took up this case on 29 September 2020. The background of the parties and their litigation history can be seen from my previous judgment handed down respectively on:

(1)  4 November 2020 (on the husband’s application for vacation of an ancillary relief notice at the land registry);

(2)  9 December 2020 (on the husband’s leave to appeal against my case management directions including appointment of a government clinical psychologist); and

(3)  21 December 2020 (on the husband’s leave to appeal against judgment dated 4 November 2020).  

4.  Where applicable, I shall adopt herein the same abbreviations used in the aforesaid judgment.

Circumstances leading to the recusal application

5.  Since the handing down of the above judgment dated 9 December 2020, this court issued a court note to both parties on the same date (“9/12/2020 Direction”) and invited written submission from them on 2 areas:

(1)  the husband to show cause why the 3/11/2020 Summons and 9/11/2020 Summons should not be struck out for, inter alia, abuse of process.[2]

(2)  Whether the Official Solicitor should be requested to represent the daughters of this case, in line with PDSL6: Guidance on Separate Representation for Children in Matrimonial and Family Proceedings.

6.  The deadline for the husband to lodge and serve his written submission on the 3/11/2020 and 9/11/2020 Summonses was 18 December 2020. On 22 December 2020, he took out a summons (“22/12/2020 Summons”) for, among other things, time extension to lodge the relevant written submission (at paragraphs 1 to 3 therein), which was returnable on 25 January 2021.

7.  By my court note dated 24 December 2020 (“24/12/2020 Direction”), I directed that the following matters be brought forward to be heard and/or argued in the hearing of 4 January 2021:

(1)  The 3/11/2020 Summons;

(2)  The 9/11/2020 Summonses;

(3)  Paragraphs 1 to 3 of the 22/12/2020 Summons.

8.  The hearing of 4 January 2021 was also the first appointment hearing of the parties’ ancillary relief matters and the pre-trial review (PTR) of 4 of the husband’s summonses on children matters (ie variation of care and control to him and relocation, or alternatively extended access).  The hearing was fixed for 1 hour only.

9.  It is clear that the matters set out at §7 above need to be disposed of, before the trial of various children summonses of the husband can be fixed, and thus the rationale of the court that the matters at §7 should be brought forward or fixed for disposal in the hearing of 4 January 2021.

10.  However, subsequent to 24/12/2020 Direction, the husband took out his recusal summons on 31 December 2020. One can see in the later part of this judgment that although this recusal summons was filed on 31 December 2020, he relies heavily on what I was said in the hearing way back on 29 September 2020 to support his claim that I have apparent bias against him.

Hearing of 4 January 2021

11.  Parties came before me on 4 January 2021 for all the matters/summonses referred to at §7 and §8 above. In addition, the court also intended to consider the appointment of the Official Solicitor to represent the daughters in the hearing.

12.  When the case was called, I told the parties that I would first deal with the ancillary relief matters and asked the husband why he failed to file and serve his updated Form E, which should have been filed by 16 December 2020.[3]

13.  Instead of answering the court’s enquiry, the husband boldly said that I should not handle this case any further, not even hearing his explanation as to why he has not complied with the time line (suggested by his own summons) to file his updated Form E, because he has taken out a summons that I should rescue myself from this case. He then proceeded to make the following line of oral submission:

(1)  Once his summons for recusal was filed, I have no jurisdiction or power to handle or deal with this case, including making any decision about the matters/summonses set out at §7 above, unless and until his recusal summons is determined;

(2)  When asked to provide authority on this point, he relied on (but without giving a copy to the court) the judgment of the Court of Final Appeal in Deacons v White & Case [2004] 1 HKLRD 291; (2003) 6 HKCFA 322 and the judgment of HHJ Melloy in AAG v JDC, FCMC 4022/2016, [2018] HKFC 79 to support his proposition at sub-paragraph (1) above.    

14.  Upon hearing from parties, I refused to accept the husband’s submission.  It is not the position of the law as reflected in Deacons v White & Case (supra) nor MJN (formerly known as MJS) v TMN (supra) that by merely the fact that a recusal summons is taken out, the judge involved cannot not deal with or case-manage the case anymore until the said recusal summons is determined.

15.  I then proceeded to hear the reason(s) as to why the husband failed to file his updated Form E and the submission from both parties as to why an unless order for him to file his updated Form E should not be made. In the result, I made an unless order that he do file his updated Form E by 4 pm of 25 January 2021, failing which his summons for variation of maintenance pending suit/interim maintenance be struck out with costs to the wife. It is noted that the unless order was duly complied with.

16.  Yet, as substantial time was spent in the hearing to deal with the aforesaid argument/submission of the husband, there left insufficient time for me to deal with all the matters/summonses that were meant to be dealt with in the hearing. Hence, all the matters/summonses scheduled for the hearing of 4 January 2021 were forced to be adjourned to a date to be fixed.

17.  Directions were then made for the recusal summons to be determined by way of paper disposal.

The test for apparent bias

18.  A recusal application can be found on either actual bias or apparent bias. The present application is based on apparent bias.

19.  The test for determining the appearance of bias, as accepted by the Appeal Committee of the Court of Final Appeal in Deacons v White & Case (supra) at §20 of its judgment is 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, or a real danger, the two being the same, that the tribunal was biased.” (my emphasis added)

20.  The Appeal Committee of the Court of Final Appeal also said in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd & Anor (2014) 17 HKCFAR 281 at §38 that,

“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.” (my emphasis added)

21.  In Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd & Anor [2014] 3 HKLRD 375, our Court of Appeal further elaborates on the test for apparent bias as follows:

“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.

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. Mr Grossman also referred us to the judgment of the Supreme Court of South Australia in IOOF Australia Trustees Ltd v SEAS Sapfor Forests Pty Ltd (1999) 78 SASR 151 in which the court made illuminating comments in the context of recusal arising out of the judge’s attitude to counsel. I bear in mind these remarks at para 174:

‘…disqualifying bias is not established merely by pointing to circumstances indicating tension, or even some hostility, between the judge and counsel. The relevant principles are directed towards ensuring the appearance and the reality of a fair hearing. That is, one in which the case on each side is fairly considered. Just as that does not require that a judge approach the merits of the case with no preconceived views about issues that might arise in the case, so long as the judge is willing to listen fairly to argument on either side, so the principle does not require that the judge not have, or at least not disclose, any adverse views about a particular counsel appearing in the case. What is important is that the judge be willing to consider the case presented by that counsel fairly. It is when the hostility between the judge and the counsel is such that the fair-minded observer might reasonably apprehend that the judge will not fairly consider the case being presented for the client that disqualifying bias is present.”

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).” (my emphasis added)

The recusal application

22.  By his 88^th and 90^th affidavits, the husband comes up with 13 grounds which he says show “apparent bias” on my part.

23.  Having considered all the evidence and submission, I am of the view that the said 13 grounds essentially boil down to the following major categories:

(1)  inappropriate observation made by me in the hearing of 29 September 2020;[4]

(2)  favouring the wife; [5]

(3)  singling out the husband;[6]

(4)  unfair, unnecessary and wrong comment about and/or unfair treatment to the husband; [7]

(5)  refusal to adjudicate on his access to the daughters, so that justice delayed and justice denied; [8]

(6)  publication of various judgment despite his objection and/or without giving him a chance to be heard on his objection to publish the same; [9]

(7)  wrongly continuing to adjudicate on the ancillary relief matters, despite this recusal application. [10]

Inappropriate observation

24.  The husband says that I made inappropriate observation in the hearing of 29 September 2020, in that I commented that he should reflect on why the daughters said “no” to his access at this stage. He says that this shows that I have “already formed a view that the lack of access is somewhat his fault.” 

25.  He also says that the court’s suggestion in the said hearing that access be supervised subject to the determination by the social welfare officer (“SWO”) is precisely the wife’s case as she knows it results in “no access”. He says that the SWO’s approach of “let the children decide” is unlawful and liable to be set aside.

26.  It is necessary to put the said comment of mine in proper context.

27.  In the hearing of 29 September 2020, I was tasked to deal with 6 summonses of the husband. I sat from 10.43 am to 13.24 pm; and from 2.33 pm to 5.22 pm in order to handle all the 6 summonses.

28.  Upon the husband’s clarification of his case on various children summonses taken out by him,[11] I took the view that it would be in the interest of the parties and good case management that all these children summonses be tried altogether as soon as soon possible. Thus, I vacated the mention hearing of 18 November 2020 in respect of his summons for interim defined access filed on 4 June 2020 and fixed a PTR for 4 January 2021 to deal with all his children summonses, with the view that trial dates can be fixed in the coming PTR. There was no objection from the parties on this case management approach.

29.  However, when I was about to raise after a long day, the husband suddenly asked that the hearing date of 18 November 2020 be kept to deal with interim access to the daughters. I set out below the most relevant part of the transcript of 29 September 2020 (with the underlined as my emphasis): [12]

Court:  I think that’s it.

H:  ....no, could I just ask, please, the November date that you have vacated, could we keep that so that you can assist in the interim access application to give me some interim access to the children? ....

     ......

H:   Your Honour, can I just say this. The Social Welfare officer recommendation is of very limited value to this court. What he says in his recommendation is “let the children decide”. That means no access. It needs a court order.

     .....

Court:  that’s why as an interim, I’m asking both of you whether both of you agree that I let the Social Welfare officer have a free hand? At least for the time being....

H:   Well, what does that .....

Court:  ... so that I can move towards the trial. And if at the end of the day, I am with you, then I would change the care arrangement.....

H:   Yes, I fully  - fully appreciate that. What I’m trying to say - I appreciate the time is going on. The Social Welfare officer says “it’s up to you [names of the 2 daughters], if you want to see daddy.” That’s his approach. So there won’t be any access. He’s asked them, they say “no”.  It needs Your Honour to intervene.

Court:     then perhaps, Mr [surname of the husband], as the father, you should also reflect why your children are doing that at least for the time [being]. Of course, you are saying that it is the alienation of the mother. I don’t know yet. I haven’t [heard] evidence.

     ....

H:   One needs to be very careful. Are you - is Your Honour suggesting that it’s my fault that there’s no access.

Court:  I am not suggesting anything.

     .....

Court:  No, I am not suggesting anything.

H:   ...what should I reflect on? What should I reflect on? The breach of the order by the mother?

Court:  No, I think both of you should reflect on how both of you have been handling the matter. I say it to you and I say it to the mother.

30.  It is clear from the above excerpts of the transcript that it is the husband himself who made submission to the court that the daughters said “no” to seeing him. So, the court just picked up from this line of submission and suggested that perhaps he as the father should reflect why the daughters were doing that. That does not mean that the court has formed a determined view that he is “at fault”. The court has made it clear that his allegation of parental alienation by the petitioner wife would be determined upon hearing the oral evidence in the trial. 

31.  Furthermore, it is pertinent to note from the above excerpts of transcript that the court has also commented that both the husband and the wife should reflect on how both of them have been handling the matter.

32.  The suggestion that the parties might consider agreeing that the SWO have a free hand to arrange interim access is no more than a suggestion only. It does not show that the court has already taken up or assumed any stance on the matters to be tried.

Favouring the wife

33.  The husband submits that the court let the wife be above the law and continuously favour her in the following ways:

(1)  she has breached the implied undertaking of confidentiality by publishing a statutory demand in newspapers for him to pay pursuant to the MPS Order,[13] and thus she has disclosed confidential details from these matrimonial proceedings.  However, I did not ask a single question in the hearing of 29 September 2020 as to why she disclosed confidential information;

(2)  she has been in breach of the Consent Order made on 4 July 2019 on custody and access,[14] but I failed to ask her why she was in contempt of court by breaching the Consent Order;

(3)  I modified the time line for filing the affidavit/affirmation evidence in relation to his various children’s summonses, and thus facilitate the wife to maintain the status quo arrangement of the daughters and cause delay, which is exactly what the wife wants in this case;

(4)  I granted time extension to the wife (who merely applied by way of a letter) to file her affirmation in opposition to his application for leave to appeal, without hearing from him first;

(5)  I imposed an unless order on him in the hearing of 4 January 2021, but made no sanction on the wife’s failure to comply with the directions for, inter alia, preparing the trial time estimates and submission on the 3/11/2020 and 9/11/2020 Summonses.

34.  I shall discuss the above sub-paragraphs according to their sequence in the following, starting with sub-paragraphs (1) and (2) altogether.

(i)      Breaching undertaking and Consent Order

35.  The topic of the wife’s statutory demand came about in this way.

36.  One of the 6 summonses I needed to deal with in the hearing of 29 September 2020 was the husband’s application for variation of the MPS Order.  I pointed out to him that it is inherently not logical that he would appeal against the MPS Order on one hand, but took out an application for variation of the same MPS Order that he meant to appeal on the other hand. I asked him to make up his mind if he wished to go ahead with the intended appeal against the MPS Order, or to focus on the variation of it.  Instead of answering my question, he shifted to comment that the wife had issued a statutory demand against him in the newspapers in respect of his failure to pay pursuant to the MPS Order. It is under such circumstances that I asked him to focus on the topic of variation of the MPS Order. And it is in such a context that I commented that I would not deal with any contempt allegation (of disclosing information of matrimonial proceedings) because there is no such application before me. 

37.  Then came the time during the same hearing that I sought explanation from the husband as to why he had not filed his updated Form E pursuant to the order made on 18 May 2020 in respect of his application for variation of MPS Order. The transcript shows that the husband seemed not very happy about the court asking him for an explanation, and he shifted to comment that the court should ask the wife why she breached the Consent Order of 4 July 2019.[15]

38.  At the risk of repeating myself, I was tasked to deal with 6 summonses of the husband in the hearing of 29 September 2020. Obviously, the constraint of time did not allow either party to side-track on matters not fixed for disposal on that day. Notably, there was no contempt application or proceedings taken out by either party as at 29 September 2020, let alone that there had already been any finding of contempt of court made as at that day.

39.  In such circumstances, it would be too far-fetched to say that the court has apparent bias against the husband by not dealing with the alleged contempt of the wife.

(ii)      Modifying time line for filing affidavit evidence

40.  The husband says that I changed the time line for filing of affidavit evidence in respect of his various summonses on children matters. To this, I have the following to say.

41.  It is true that previous docket judge of this case[16] had on 18 May 2020 made an order for filing of affidavit evidence in relation to some of his children summonses. However, when I came to seize this case and as said above, I am of the view that all the outstanding children summonses should be heard together in one trial, instead of dealing with each of them separately.  Further, the case history shows that an extraordinary number of affidavits/affirmations were filed with the court. The husband has filed more than 90 affidavits, whereas the wife has filed about 20 affirmations, many of which are related to the children matters.  For better case management and for better control on the time to be spent in the coming trial on children matters (the husband estimates that merely his case alone will take 25 days in the trial), I ordered by way of paper directions made on 27 October 2020 that the parties should prepare a consolidated and composite affidavit/affirmation.  

42.  Notably, there is no appeal application in respect of such an order.

43.  And in any event, as the trial judge of these children summonses, I am entitled to give all necessary and relevant case management directions, notwithstanding previous directions made by other docket judges, in order to fulfill the underlying objectives under Order 1A rule 1 of the Rules of the High Court, which include:

“(a) to increase the cost effectiveness of any practice and procedure to be followed in proceedings before the court;

(b) to ensure that a case is dealt with as expeditiously as is reasonably practicable;

(c) to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;

……

(f) to ensure that the resources of the court are distributed fairly.” 

44.  The husband also argues that by changing the time line of filing affidavit evidence, the court has effectually acceded to the wife’s application by letter to file her 18^th affirmation and delayed the trial on children matters.

45.  For the records, the wife wrote to the court on 5 October 2020 seeking time extension to file her affirmation (pursuant to the order made by previous docket judge on 18 May 2020). I did not accede to her request by unilateral letter and directed that proper summons should be taken out. Unbeknown to the court, she proceeded to file her 18^th affirmation. It is never the case that the court has acceded to her filing of the 18^th affirmation out of time or at all. As such, it is up to the husband to decide what proper application to make, if any. To say that the court has favoured the wife in such circumstances is regrettably not a fair comment.

46.  I would further add that had it not been this recusal application and the time spent on the husband’s submission in the hearing of 4 January 2021, the court would probably be able to deal with most if not all interlocutory matters scheduled for that day and possibly at least pencil-mark the trial dates of his summonses on children matters.     

(iii)      Granting time extension to the wife’s application by letter but refusing to consider his application(s) by letter(s)

47.  On 10 November 2020, the husband filed his summons for leave to appeal against my judgment dated 4 November 2020. The wife wrote to the court on 30 November 2020 that she had not received his said summons and sought a time extension of 14 days to file her affirmation in opposition. I gave the direction on the same date as follows:

“If the [husband] has not served his summons relating to leave to appeal on the [wife], the [wife] should have her 14 days to file her affirmation in opposition, ie by 14/12/2020.”

48.  The husband says that he did serve his leave to appeal summons on the wife on 11 November 2020.[17] The court should have sought his view on her application by letter before giving out the directions.

49.  I would start by referring to the New Arrangement for Application for Leave to Appeal in the Family Court issued on 13 August 2018. Leave to appeal applications in the Family Court are now done by way of paper disposal. It is a matter of court’s exercise of its discretion as to whether time extension should be granted. In view of the nature of the application and in the circumstances of this case, I was of the view that it was more time saving and cost effective to grant the extension as requested.

50.  I fail to see how the husband would be prejudiced by the time extension granted to the wife. Importantly, it turns out that I do not need to rely on her affirmation in opposition to arrive on the conclusion that leave to appeal should not be granted to him.[18]

51.  The husband also argues that I acceded to the wife’s aforesaid time extension application by way of a letter, but refused his application (by way of letters dated 5 November 2020 and 6 November 2020 respectively) to fix an earlier date to hear the 3/11/2020 Summons and his access-pending-trial summons, and thus I have apparent bias against him.

52.  It should be noted that the 3/11/2020 Summons and the access-pending-trial summons were originally or already fixed for 4 January 2021. It is not the case that these summonses were left dangling in the air.  More importantly, despite his complaint that I refused to fix an earlier date to hear the aforesaid 2 summonses (and thus his ground of apparent bias on my part), he objected my dealing with these 2 summonses when the occasion arose on 4 January 2021. It was only due to his objection and submission that the said 2 summonses were not able to be dealt with as originally intended by the court during the hearing of 4 January 2021.  

53.  Besides, the mere fact that I refused to entertain his application by letter in these circumstances would not give rise to a reasonable apprehension that I have bias against him.  There and then, I had considered his request but concluded that there was no merit in bringing forward the said 2 applications. Notably, the repetitive nature of the 3/11/2020 Summons which amounts to an abuse of process is already confirmed by the Court of Appeal in their recent judgment handed down on 22 February 2021 (“CA Judgment”).[19] In addition, the updated social welfare report was not yet ready until 24 December 2020.

(iv)      Making an unless order

54.  The circumstances leading to the making of the unless order for the husband to file his updated Form E, as well as why I did not have sufficient time to proceed with all the other matters that were fixed for the hearing of 4 January 2021, are already set out at §12 to §16 of this judgment, such that I will not repeat here.

55.  The court cannot appreciate the logic of the husband that on one hand, he put forward the oral argument in the hearing of 4 January 2021 that I should not deal with or adjudicate on this case, especially children matters (due to his recusal application), but yet on the other hand, he now proffers in this recusal application that I failed to ask the wife or sanction her on her failure to prepare for the matters which he had told me that I should not be adjudicating on in the hearing of 4 January 2021.

Singling out the husband

56.  The husband refers to a directive given by me on 29 September 2020 to the listing clerk of the Family Court that for any future summonses to be taken out by him, directions be sought from me before fixing the hearing date(s) (“Directive”). He says that I had not alerted the parties, nor given him a chance to make submission before making the Directive. He says that no similar filtering process has been made on the wife. All these point to apparent bias on my part.

57.  In the hearing of 29 September 2020, the husband indicated that he would have an application for adducing the expert evidence of his treating psychiatrist. I thus gave direction that all interlocutory applications be taken out within 28 days (ie by 27 October 2020), failing which it will be deemed that there is no such application.

58.  As said, it was there and then my intention that trial dates could be fixed in the PTR of 4 January 2021. It was thus under such circumstances that the Directive was given to the listing clerk, with the good intention of the court that any such interlocutory applications might be fixed, if possible and if the court diary can so accommodate, to be heard prior to or on the same date of the PTR.

59.  Subsequently, the husband did take out a summons on 27 October 2020 seeking to adduce the medical report of Dr Monica Borschel, which pursuant to the Directive, was fixed for 4 January 2021.

60.  However, as the matters evolve, he continues to take out, and has taken out, about 15 summonses since 29 September 2020 up to the date of this judgment, some of which are repetitive in nature, such as the 3/11/2020 and 9/11/2020 Summonses, which makes it impossible for the court to handle, time-wise, before or on 4 January 2021. What the court can do is to fix these subsequent summonses to the first available time slot(s) there and then.

61.  The court has to be fair to other court users whose cases are already fixed or refixed due to the arrangement of reduced capacity of court’s hearing amidst the Covid-19 pandemic.

62.  That said, the court, nevertheless, still tried her best to accommodate some of the summonses taken out by the husband and fix them to an earlier date(s). For example, his summons filed on 4 November 2020 for time extension to file his updated Form E by 16 December 2020 was originally fixed for 11 January 2021, which was brought forward to 1 December 2021. For another example, he took out a summons on 20 January 2021 for adducing an additional affidavit (his 90^th affidavit) in support of this recusal application, which the court made arrangement to fix it for 28 January 2021.   

63.  Last but not the least, it has to be pointed out that the Directive is not a filtering process as to the merits of any applications. It is merely a directive aimed at better case management. Had the wife indicated to the court on 29 September 2020 that she would have any interlocutory applications to make, similar directive would be given in respect of the wife, in order to achieve what the court originally intended to do in the PTR (see §58 above). It is noted that the wife has not taken out any interlocutory summons so far.

Unfair, unnecessary and wrong comment and/or unfair treatment

64.  In gist, the husband’s major complaints include:

(1)  Without giving him a chance to be heard, I made serious allegation that his repeated ex parte application is an abuse of process;

(2)  I gave hearing dates after the event;

(3)  I imposed unfair time frame for him to comply with;

(4)  I made prejudicial and unfair comment in my judgment of 4 November 2020 and 9 November 2020;

65.     I shall deal with each of the above allegations one after one.

(i)      Abuse of process of his ex parte application

66.  Even since the husband’s Expert Summons (for adducing the expert report of Dr Blurton and Dr Craigen on parental alienation) and after the making of the 28/10/2020 Order (of obtaining a government clinical psychologist report), the husband took out at least 5 related summonses set out more particularly at §24 of my judgment of 4 November 2020, including 2 inter partes summonses and 2 ex parte summonses on notice. All these 4 summonses essentially sought the same thing, ie appointing Dr Craigen as his expert; “renewing” his Expert Summons; there be stay of the appointment of the government clinical psychologist pending his appeal to my judgement dated 4 November 2020. 

67.  On 16 November 2020, I rejected to fix an urgent hearing to his 1^st ex parte summons on notice (dated 12 November 2020) with reasons provided. However, 8 days later on 20 November 2020, he sought to take out a 2^nd ex parte summons on notice, similar to his 1^st ex parte summons. Hence, by my court note of 23 November 2020, I wrote these:

“4. This is the 2^nd ex parte summons on notice from [the respondent] within 8 days, the last one being made on 12/11/2020. These 2 ex parte applications are broadly identical in nature and in substance. The Court has already disposed of the last ex parte summons in her court note of 16/11/2020, and concluded that there was no urgency in the application. The Court does not see any material change of circumstances between 12/11/2020 and 20/11/2020 that would lead to a different view made by the Court in her court note of 16/11/2020. The Court takes a further view that it is an abuse of process for [the respondent] to make repeated ex parte applications on the same matter which the Court has disposed of in such circumstances of the case.

5.  In conclusion, the Court will not fix the Ex parte Summons on an urgent basis.”

68.  All I need to point out is that the Court of Appeal made similar comment about the husband’s abuse of process on the issue of expert directions in the CA Judgment. [20]  I thus do not agree that a fair-minded and well informed observer would conclude that there is any apparent bias on my part.

(ii)      Fixing the summons after the event

69.  The husband criticizes the court for fixing the date(s) of his summonses after the event. For example, on 1 December 2020, he took out a summons for access to the daughters over Christmas, but the court listed it to 25 January 2021. On 22 December 2020, he took out yet another summons for Christmas access, which was listed by the court to 25 January 2021.[21]

70.  First of all, I would reiterate what I have said at §60 to §62 of this judgment.

71.  Further, there cannot be any dispute that the Family Court jurisdiction is a busy jurisdiction. Couple with this, there was the arrangement of reduced capacity of the courts amidst the Covid-19 pandemic, and the long holidays over Christmas and New Year.  That a summons can be fixed for a return date in a month’s time or so is, in my view, an acceptable arrangement in the overall objective circumstances.

72.  In any event, it should be added that at the time when these summonses were taken out by the husband, the updated social welfare report was not yet ready, which means that there was not yet updated information for which the court may refer to or consider in dealing with these summonses. The updated social welfare report was only ready on 24 December 2020. Thus, even if (just assuming) the court diary could accommodate an earlier date(s) of these summonses, it probably would not serve any meaningful purpose because the updated social welfare report was not yet ready by then.

(iii)      Unfair time frame

73.  By the 9/12/2020 Direction, I directed, among other things, that:

(1)  the husband shall file and serve his concise written submission (to show cause why the 3/11/2020 and 9/11/2020 Summonses should not be struck out on, inter alia, the ground of “abuse of process”) by 4 pm of 18 December 2020;

(2)  the wife shall file and serve a concise written submission in response, if any, by 4 pm of 30 December 2020.

74.  The husband submits that I afforded him only 5 days to prepare his written submission, whereas the wife was given 18 days to prepare hers. He says that this is unfair and not a level playing field, which is wrong and points to apparent bias.

75.  It is erroneous for him to say that the wife was given 18 days to prepare her written submission.  According to the 9/12/2020 Direction, he was given 9 days to prepare his submission, whereas the wife had her 12 days to respond. The time table was so fixed upon taking into account that (i) there was incumbent Christmas/New Year holidays; (ii) the submission that I invited the parties to give was on limited issue; and (iii) the parties’ education/professional background.

76.  In any event, the husband did not file his written submission by 18 December 2020. Instead, he took out a summons on 22 December 2020 for time extension of 10 days to do so. The said time summons was brought forward to be heard on 4 January 2021. However, no direction/order was able to be made at the end of the hearing, due to the circumstances described at §11 to §16 of this judgment.

(iv)      Prejudicial comment in judgment of 4 November 2020 and 9 November 2020

77.  The husband submits that I made unfair, unnecessary, wrong and adverse comments/criticism about him in my previous judgment as follows.

78.  To begin with, he is not satisfied with §33 – §35 of my judgment dated 4 November 2020.

79.  He submits that I should not have made adverse comment at §33 therein about his taking out numerous applications since the Consent Order of 4 July 2019,[22] as some of these applications were made pursuant to my order dated 29 September 2020 (that all interlocutory applications shall be taken out within 28 days) and my order dated 27 October 2020 (that interlocutory applications should be made by way of a summons, but not by letters). He says that some other applications taken out by him were for leave to appeal, two of which have been outstanding for more than 12 months. He concludes that my prejudging his summonses points to apparent bias.

80.  Plainly, no objective bystander will conclude that I have made adverse comment on the husband, or have prejudged any of his children summonses that are going to be tried, at §33 of the said judgment. Further, he mentions about 2 outstanding leave to appeal applications, but these are in relation to decision/judgment made by previous docket judge(s). I fail to see how the argument of apparent bias would come into play as a result of such outstanding judgment, if any.

81.  As to §34 - §35 of the judgment, the husband complains that I criticize him for time wasting in insisting his recusal application relating to Deputy District Judge J Chow, and explains that the recusal application is necessary in order to make sure that I would not refer this case back to the Deputy Judge.

82.  Plainly, I merely state at §34 - §35 of the judgment what happened in the hearing of 29 September 2020 in respect of the recusal application concerning the Deputy Judge. That said, I would add that the court should not be wary of making comment if it finds a party pursuing an application which is no longer necessary; the court has a supervisory duty to control the process before it.  Just like this case, I already told the husband in the hearing of 29 September 2020 that the Deputy Judge was already deployed out of the Family Court. It thus became very clear that his recusal application was no longer necessary. To then ask this court to agree that I would not transfer this case back to the Deputy Judge is totally inappropriate and unnecessary. I do not see that an objective by-stander would conclude that there is any apparent bias or risk of apparent bias shown from these paragraphs of my judgment.

83.  I now turn to the husband’s comment on my judgment dated 9 December 2020 (on leave to appeal 2 case management directions made by me in respect of the appointment of the government clinical psychologist). I refused to grant leave to him to appeal.

84.  The husband refers to §36 of my judgment of 9 December 2020 and argues that by pointing out that he objected the SWO to make enquiry with Dr Pandora Ng (the treating therapist of the daughters), I tried to paint him in a negative light without full and proper context. He also refers to the postscript of the said judgment that I commented and showed my concern about the numerous applications taken out by him since the Consent Order of 4 July 2019.  He is adamant in saying that by making these comment, I am effectively prejudging these applications which are yet to be adjudicated or are subject to appeal.

85.  Upon due consideration, I would reject the above argument.  I add that after I refused to grant him leave to appeal, he renewed his application before the Court of Appeal. By the CA Judgment, the Court of Appeal dismissed his application.  In her judgment, Kwan VP agreed with me that the 3/11/2020 and 9/11/2020 Summonses “are wholly inappropriate and are an abuse of process of the court”. [23] Her Ladyship also shared the same concern made by me in the postscript of my judgment and sent out a reminder to the husband that he should desist from making applications that are repetitive and unnecessary:

“42. We note with concern the considerable number of applications taken out by the Father in the Family Court. As noted by the judge, applications that are unfocused, repetitive, and/or unnecessary would not only take up (and have in fact taken up) an extraordinary and unnecessary amount of the court’s time and public resources, and would cause delay which is not in the interests of the parties. We wish to serve an additional reminder to the Father that he should desist from making applications that are repetitive and unnecessary, failing which the court may consider making a restricted application order against him to restrict the abuse of the process of the court.”

86.  The husband also argues that I made wrong comment at §54 of my judgment of 9 December 2020, by saying that he had not filed his consolidated/composite affidavit pursuant to the paper directions made on 27 October 2020, but in fact, he had done so on 24 November 2020 (ie his 82^nd affidavit). He argues that by wrongly stating that he had failed to comply with the said paper directions and then publish the same in the judgment points to apparent bias on my part.

87.  I think it may probably due to the time lag between the time his 82^nd affidavit was filed with the Family Court Registry and the actual time that the said 82^nd affidavit was delivered to this court, so that I was not aware of this 82^nd affidavit at the time when I prepared the judgment of 9 December 2020.  That said, it still remains true of what I said at §54 of the judgment that the husband had not filed his updated Form E by the deadline of the order of 29 September 2020. Looking at the matter in its totality, I am unable to agree that a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the court was biased.

Refusal to adjudicate on access leading to delayed Justice

88.  The husband is not satisfied that I vacated a call-over hearing of 18 November 2020. The order was made in the hearing of 29 September 2020, during which I told the parties of the approach taken by the court, ie to have a trial as soon as possible of all the outstanding summonses on children matters taken out by the husband.

89.  Pertinently, there is no appeal application in respect of my order of 29 September 2020. That being the case, I fail to appreciate why and how the husband can now say that vacating the hearing of 18 November 2020 points to apparent bias on my part.

90.  Rather, the decision to vacate the hearing of 18 November 2020 is a case management decision, which this court has a very wide discretion to make, guided by the underlying objectives under Order 1A rule 1 of the Rules of the High Court. It was in an attempt to achieve these underlying objectives and to efficiently manage the trial that the PTR was fixed and the relevant directions made by me in the hearing of 29 September 2020.

91.  In my view, taking an active case management role on the part of the court in post-CJR’s (Civil Justice Reform) era does not mean that I would have a closed mind, or the absence of an open mind, on the matters that I am about to decide in the trial of various children’s matters.

Publication of judgment

92.  The husband is not satisfied that despite his objection, the court published her various judgment set out more particularly at §3 above. He argues that his daughters can be identified in these judgment, and that I did not give him a chance to be heard before publication of these judgment.

93.  First of all, it needs to be pointed out that before the publication of my judgment set out at §3 above, the Family Court and the Court of Appeal had already published a number of judgment/decision under this case. In those judgments, the background of the family and the case was already revealed.

94.  PD15.15 provides that all judgments of the Family Court will be published in the manner provided at §22 therein, which was already followed by me in the publication of the relevant judgments.

95.  Thus, it is not correct to say that the husband was not accorded an opportunity to be heard before the publication of the judgment. He was given 14 days to raise his objection to publication of the judgment, which he did by way of various letters which were duly considered by the court.

96.  As rightly observed by the wife in her written submission, the court acknowledged some of the suggestions made by the husband and accordingly redacted certain parts of the judgment dated 4 November 2020 (on his application to vacate an ancillary relief notice registered against the matrimonial home and related 2 carparks).

Wrongly adjudicate on AR matters

97.  What happened in the hearing of 4 January 2021 is already sufficiently set out at §11 to §16 above.

98.  I would stress again that it is not a correct statement of the law that once a recusal summons is taken out, the judge would be forbidden to handle the case, not even in the interlocutory stage for giving necessary case management directions. The authorities cited and/or relied on by the husband does not support his argument.

Conclusion on recusal

99.  There are other minor points submitted by the husband in this recusal application which I would not go into details. Suffice it is for me to say that I have considered them all individually and/or cumulatively. I reject all his arguments.

100.  I conclude that it is not the case that a fair-minded and informed observer would say that there is a real possibility that I would not bring an impartial mind to these proceedings. The husband’s recusal application is dismissed. 

Not to fix before certain judges

101.  The husband seeks that this case be fixed before other Family Court judges but not HHJ A Tse, HHJ S Lo or Deputy District Judge J Chow (See: Paragraph 1(b) of the recusal summons).

102.  Since I have concluded that his recusal application should be dismissed, the question of fixing this case before another Family Court judge does not arise.

103.  But merely to complete the discussion, I am bound to point out that forum shopping is not permissible in our legal system.  In any event, HHJ A Tse and Deputy District Judge J Chow have already left Family Court, which was made known to the husband by me in the hearing of 29 September 2020.  Accordingly, this application should also be dismissed.

Order

104.  The husband’s summons filed on 31/12/2020 is dismissed.

105.  There be an order nisi that the husband do bear the wife’s costs of and occasioned by this application, to be taxed if not agreed, which shall be made absolute 14 days from the date of this judgment.

[1] The husband took out previous applications for recusal of HHJ Judge A Tse and Deputy District Judge J Chow.

[2] For definition of the 3/11/2020 and 9/11/2020 Summonses, see §24 of the judgment dated 9 December 2020. See also §41 and 42 of the same judgment.

[3] The parties’ updated Form E should have been filed by 4 November 2020 pursuant to my order made on 29 September 2020. The wife has filed hers on time, but the husband took out a time summons to extend the time for filing his updated Form E by 16 December 2020. A court order was granted accordingly on 1 December 2020. However, he has still not filed his updated Form E by the hearing of 4 January 2021.

[4] Ground (1) in the husband’s 88^th affidavit.

[5] Grounds (2), (4) and (12) in the husband’s 88^th and 90^th affidavits.

[6] Ground (3) in the husband’s 88^th affidavit.

[7] Grounds (6) to (8) of the husband’s 88^th and 90^th affidavits.

[8] §24 of Ground (1), Grounds (9) and (10) of the husband’s 88^th affidavit.

[9] Grounds (5) and (13) of the husband’s 88^th and 90^th affidavits.

[10] Ground (11) of his 90^th affidavit.

[11] See §8 of the judgment of 9 December 2020

[12] Transcript, p101 line T to p103 line J.

[13] On 25 June 2019, Deputy District Judge A Tse (as Her Honour Judge then was) made an order that the husband do pay maintenance pending suit/interim maintenance for the wife and the daughters in the total sum of $64,000 per month. It is indisputable that he has never made any payment under the said MPS Order. He filed a summons on 24 July 2019 for leave to appeal against the judgment of the learnt judge. He filed an application to vary down the amount under the MPS Order to $0 on 14 October 2019.

[14] The Consent Order dated 4 July 2019 provides that the parties have joint custody of the daughters, with care and control rests with the wife and reasonable access to the husband to be reviewed on a progressive manner.

[15] Transcript, from p34 line C to p36 line N.

[16] HHJ A Tse.

[17] See the husband’s 77^th affidavit.

[18] See §3 of the judgment dated 9 December 2020.

[19] CAMP 255/2020, [2021] HKCA 183 at §34.

[20] §32 to §36 of CAMP 255/2020, [2021] HKCA 183.

[21] The date of the summons is 18 December 2020.

[22] The original §33 of the judgment reads: “In my view, the major reason for the slow progress on the ancillary relief matters is partly due to the fact that enormous court time was spent to deal with the various summonses taken out by the husband since the Consent Order, complicated by the fact that despite the great wealth of the parties, they have chosen to act in person.”

[23] §34 of CAMP 255/2020, [2021] HKCA 183.