GM-SA aka DG, M-S v. DDPJ

CAMP 475/2022

[2022] HKCA 1778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 475 OF 2022

(ON AN INTENDED APPEAL FROM FCMC NO 9657 OF 2016)

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REASONS FOR JUDGMENT

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Hon Chow JA (giving the Reasons for Judgment of the Court):

INTRODUCTION

1.  On 7 November 2022, His Honour Judge G Own gave a decision (“the 2022 Decision”) dismissing the Respondent/Plaintiff (“H”)’s application by a summons dated 6 January 2022 (“the Recusal Summons” or “the Recusal Application”) that the Judge do recuse himself on the ground of having apparently prejudged issues which ought to be determined at the trial.

2.  On 14 November 2022, H issued a summons (“the Leave Summons”) seeking leave to appeal the 2022 Decision, and a stay of the proceedings pending the determination of the application for leave to appeal and, if leave to appeal be granted, the determination of the appeal.  In view of the fact that the trial of the action had been fixed to commence on 22 November 2022 (with 7 days reserved), the Court directed a rolled-up hearing of H’s application for leave to appeal and, if leave to appeal be granted, the substantive appeal, and heard the parties at an urgent hearing on 18 November 2022.

3.  At the conclusion of the hearing, the Court dismissed H’s application for leave to appeal with costs to the Petitioner/Defendant (“W”), with reasons to be given later.  These are our reasons for dismissing H’s application for leave to appeal.

THE RECUSAL APPLICATION

4.  The present action (originally commenced in the High Court as HCA 2431/2017 and subsequently transferred to the Family Court using the same case number, FCMC 9657/2016, as the previous divorce proceedings between H and W) is brought by H to set aside a consent order relating to ancillary relief dated 20 September 2016 (“the Ancillary Relief Consent Order” or “the AR Consent Order”) made in the divorce proceedings, on the ground that his consent was given or obtained as a result of W’s material misrepresentation or non-disclosure in respect of 2 matters: (i) W had been having an adulterous affair with a third party for a considerable period of time, and (ii) W intended to relocate to Switzerland with the 2 children of W and H.  The basic facts of this case were set out in the Reasons for Judgment and Decision on Costs of the Court of Appeal (differently constituted) dated 20 July 2022 in CACV 200/2022 (“the CA Judgment”), and we do not propose to repeat them here.

5.  H’s complaint that the Judge had apparently prejudged issues which ought to be determined at the trial is based on various statements made by the judge in his decision dated 30 November 2021 (“the 2021 Decision”), whereby the Judge dismissed H’s application for leave to adduce expert evidence on French law in respect of a Pre-Nuptial Agreement dated 27 August 1999 (“the PNA”).  In approaching H’s application for admission of expert evidence, the Judge considered 4 questions.  For the present purpose, it is necessary to refer to only 3 of the 4 questions considered and answered by the Judge:

(1)  Question (a): “From reading H’s case as pleaded in the [Action], what are the issues before this Court that need to be resolved at the substantive trial in April 2022[1], where H is now seeking leave to adduce expert evidence?”  The Judge answered as follows -

“[42] On question (a), the issue to be resolved is just that whether W had misrepresented and/or failed in her disclosure of the 2 facts that H is now complaining about. Clearly, this is a question of fact which could only be decided by the Court after trial when parties’ evidence and credentials have been fully tested. The Court requires no expert evidence or opinion in the fact-finding exercise. I decided that expert evidence on French Law is not required for determining the issue of the alleged misrepresentation and/or failure in full and frank disclosure pleaded by H in the [Action] to be tried in April 2022.

[43]  Putting H’s case to the highest, it is only when H had successfully set aside the [Ancillary Relief] Consent Order and then French Law may probably be needed. Even in such a case, the expert evidence will only be needed insofar as the French PNA is concerned, for assisting the court in determining ancillary relief; that is to say, whether the parties would be bound by the French PNA or otherwise.”

(2)  Question (b): “Whether the 2 facts which H is now complaining W had misrepresented him and/or failed to fully and frankly disclose to him during the course of negotiation passes the ‘materiality’ test?”  The Judge answered as follows -

“[44] On question (b), this calls for objective consideration. It is just not possible for a party to know what the other party has had in his/her mind as to what matter to be considered as ‘material’ which must be disclosed and that; failing which, any settlement or arrangement reached would not be liable to be set aside or overturned.

[45]  In my decision, whether W had or would have developed a relationship with T at the time of the 2 Consent Summonses, objectively considered (emphasis added), does not pass the ‘materiality’ test. It is not for H or his legal advisers to decide on materiality. That said, W could not be criticized for not disclosing her relationship or ‘would-be’ relationship with T even if that relationship did exist at the time.

[46]  As to the fact of relocation complained by H, this relates to the Children’s Consent Order which falls outside the ambit of H’s setting aside application as per his pleaded case in the Statement of Claim under the [Action]. Having said, the disclosure or non-disclosure of the 2 facts by W which H is now complaining is neither here nor there as to whether expert evidence directions should be given.

[47]  It is my decision that H had failed the ‘materiality’ test on the alleged non-disclosure of W’s relationship with T and W’s planned relocation with the 2 children.”

(3)  Question (d): “Whether there are any other relevant circumstances, such as prejudice or delay, which may undermine the objective aimed by the spirit of the CJR if the court is to grant leave for adducing the expert evidence when a prima facie case for admission was made out.”  The Judge answered as follows -

“[56] Whilst delay of these proceedings could now possibly be avoided with this Decision being handed down today, other equally important factors such as prejudice (if any) that might have caused to W (who has the benefit of the [Ancillary Relief] Consent Order for more than 5 years by now but not receiving her share thereunder); the need for procedural economy and proportionality; the need for expediency to deal with parties’ finances; especially in the matrimonial context, all built in which require careful consideration by the Court.

[57] Given full and careful consideration to all the circumstances, I decided that granting expert evidence directions to H at this stage would be against the objectives of reasonable proportionality and procedural economy under the CJR.

[58] I noted that it is H’s case that the difference in monetary sum under the [Ancillary Relief] Consent Order compared with the monetary sum under the PNA is in the region of around US$12 million which, allegedly, W should not be entitled and that this is a substantial sum of money. However, I am not convinced that difference in monetary sum should take precedence over the objectives under the CJR when considering [whether] or not to grant expert evidence directions.

[59] Broadly speaking, which should not be taken as any indication of this Court, difference in monetary sum has no place to fit in even at the substantive trial of a setting aside application, let alone that the present application is just an application for expert directions. For otherwise, litigants who have settled their claims even with the benefit of full legal advice but somehow, with hindsight or second thought, considered the settlement was a ‘bad bargain’ would find it too easy to overturn or set aside the settlement by claiming that there would be a big difference in monetary sum had the matter not been settled.

[60] In the absence of one or more of the commonly accepted vitiating factors such as fraud, duress, illegality or misrepresentation being proved, parties should pay heed to the sanctity of contract and be held to their terms of settlement. Once the terms of settlement had been approved by the Court and embodied in the form of a court order, the contractual effect of the settlement would be superadded the command of the Court with coercion for compliance the more so obligatory.”

6.  H took particular exception to §§45, 47 and 58 to 60 of the 2021 Decision, and issued the Recusal Summons on 6 January 2022. The Judge dealt with the Recusal Summons on paper.  By the 2022 Decision, the Judge dismissed the Recusal Summons with costs to W.

THE INTENDED APPEAL

7.  H was not satisfied with the 2022 Decision, and made an urgent application for leave to appeal directly to the Court of Appeal on 14 November 2022 due to the imminent commencement of the trial on 22 November 2022.

8.  Attached to the Summons is a draft Notice of Appeal consisting of 14 paragraphs under 7 grounds:

(1)  Ground 1- original appearance of bias in the 2021 Decision;

(2)  Ground 2 - further appearance of bias in the 2022 Decision;

(3)  Ground 3 - failure to apply the law relating to apparent judicial bias;

(4)  Ground 4 - stay application;

(5)  Ground 5 - misapplication of the CA Judgment;

(6)  Ground 6 - unexplained and apparently biased delay in ruling on the Recusal Application; and

(7)  Ground 7 - appearance of bias in the Judge’s approach to H’s case and submissions.

9.  In the Recusal Summons, H relied solely on §§45, 47 and 58 to 60 of the 2021 Decision in support of his contention that the Judge had apparently prejudged issues which ought to be determined at the trial of the action.  H is not entitled to go beyond the complaints raised in the Recusal Summons for the purpose of the present application for leave to appeal.  Thus, the only grounds which H may properly rely upon are Grounds 1 and 3.  In our consideration of H’s application for leave to appeal, we shall also take into account Grounds 2 and 7 to the extent that they refer to matters which reinforce H’s complaint that the Judge has apparently prejudged issues at §§45, 47 and 58 to 60 of the 2021 Decision.  On the other hand, we do not consider that H is entitled to rely on Grounds 4, 5 and 6.  Nevertheless, for the sake of completeness, we shall deal with those grounds briefly below.

APPLICABLE PRINCIPLES

(i)     Apparent bias

10.  The “reasonable apprehension” test for apparent bias is well settled: “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” (Director General of Fair Trading v Proprietary Association of Great Britain [2001] 1 WLR 700, at §85 per Lord Phillips MR, accepted by the Appeal Committee of the Court of Final Appeal in Deacons v White & Case [2004] 1 HKLRD 291, at §§20-21). 

11.  Where it is alleged that a judge has apparently prejudged issues, a useful way to approach the question of apparent bias is to ask “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” (Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd [2014] 3 HKLRD 375, at §51 per Kwan JA (as she then was), adopting the observation of the Constitutional Court of South Africa in President of the Republic of South Africa v South Africa Rugby Football Union 1999 (4) SA 147, at 177).

(ii)     Appeal against refusal to recuse

12.  As held by Cheung JA in Chau Siu Woon v Cheung Shek Kong [2010] 3 HKLRD 49, at §7, and endorsed by Kwan JA (as she then was) in Falcon Private Bank, at §49, the refusal by a judge to recuse himself from hearing a case is an exercise of discretion.  On an appeal to the Court of Appeal, the principle is that the Court is not to exercise the discretion afresh and will only overturn the decision and exercise the discretion afresh if the judge proceeded on wrong principles or his exercise of discretion was plainly wrong.

GROUND 1 AND GROUNDS 2 AND 7 (SO FAR AS RELEVANT) TO THE COMPLAINT OF ORIGINAL APPEARANCE OF BIAS IN THE 2021 DECISION

13.  H contends that an objective, fair-minded and well-informed observer would find the possibility that the Judge appeared to be biased in that, at §§45-48 of the 2021 Decision, he pre-determined issues of fact and law at an interlocutory stage, namely, the materiality of W’s misrepresentations/non-disclosure of her affair and intention to relocate  (“the Materiality Issue”), which constituted crucial issues that could only be determined after the trial[2].

14.  H further contends that the Judge made a definitive statement, at §§58-59 of the 2021 Decision, that a different financial outcome of the ancillary relief proceedings (to the extent of US$12 million) would be irrelevant, even at the substantive trial of a setting aside application (“the Relevance Issue”), thereby demonstrating his apparent bias and the prejudgment of H’s case[3].

15.  As held by the Court of Appeal, the Judge erred in both aspects in the 2021 Decision.

(1)  In respect of the Materiality Issue, the Court of Appeal, at §§28-30 of the CA Judgment, explained that (i) it should be approached by asking whether the misrepresentation or non-disclosure has resulted in the making of an order which is substantially different from the order that would have been made had there been no misrepresentation or disclosure, (ii) the burden of proof of materiality in this sense depends on whether the misrepresentation or non-disclosure was (a) intentional/deliberate or (b) inadvertent/innocent, (iii) if the non-disclosure is deliberate, it is presumed to be “material” and the original consent order would be set aside unless the party who has failed to disclose can prove, on the balance of probabilities, that the order would have been substantially the same even if full disclosure had been made, and (iv) on the other hand, if the non-disclosure is inadvertent or innocent, the burden is on the party seeking to set aside the order to prove that the non-disclosure was “material”, that is to say that had proper disclosure been made the court would have made a substantially different order justifying the setting aside of the consent order.  At §§33(3) of the CA Judgment, the Court of Appeal further explained that the Materiality Issue was an issue to be determined at the trial of the Action.

(2)  In respect of the Relevance Issue, the Court of Appeal made it clear, at §33(1)[4] and (4) of the CA Judgment, that one of the issues to be determined at the trial was whether a substantially different order would have been made but for the misrepresentation / non-disclosure.

16.  The fact that the Judge expressed erroneous views on the aforesaid issues at an interlocutory stage does not mean that he will not bring an impartial mind to bear on the adjudication of those issues at the trial in accordance with the guidance given by the Court of Appeal, or that he will not be open to persuasion by the evidence or the submissions of counsel.  At §30 of the 2022 Decision, the Judge acknowledged the 4 aspects that he had been held to have erred by the Court of Appeal, and at §83 of the 2022 Decision, he implicitly recognised that he should bring an impartial mind to adjudicate on those issues:

“[30] My ‘2021 Decision’ was set aside by the Court of Appeal where Hon Chow J gave the judgment of the Court. At paragraph 33 of the CACV Decision, Hon Chow J sets out 4 aspects which I had erred in law in my ‘2021 Decision’. I do not intend to repeat those 4 aspects at any length in this Decision. Suffice it is to say, with the benefit of the full reasons and guidance from the appellate court, all the 4 aspects of error of law had now been fully noted.”

[83] In my view, more likely than not that it was H’s subjective views and speculation that dictated his request for me to recuse myself. There was not any single strand of evidence showing that I would not be bringing an impartial mind to adjudicate those issues, including the ‘materiality issue’ now found by the appellate court, or that I had already adjudged any of the issues at trial.”

17.  Mr John Scott, SC submits that the Judge’s error and appearance of bias was compounded by his refusal and/or failure to acknowledge or accept in the 2022 Decision his pre-judgments made against H in respect of the Materiality and Relevance Issues.  On the contrary, the Judge reaffirmed his position in the 2022 Decision.  Mr Scott refers to and relies on the following passages in the 2022 Decision in support of this submission:

(1)  In respect of the Materiality Issue -

“Paragraphs 45 and 47

[40] These 2 paragraphs touched upon my error of law when deciding the ‘materiality issue’ which the appellate court had rightly pointed out. At paragraph 33(3)(a) of the CACV Decision, it was said:-

‘(3)(a) In respect of H’s complaint concerning whether W had developed a relationship with any third party, the Judge considers that it is not for H or his legal advisers to decide on materiality. That may be so, but is not itself a sufficient reason for holding that the alleged misrepresentation or non-disclosure in respect of W’s relationship with T is not material. The Judge further says that W could not be criticized for not disclosing her relationship or ‘would-be’ relationship with T even if that relationship did exist at the time. This is, we consider, an issue to be determined at the trial, instead of in an interlocutory application for leave to adduce expert evidence.’

[41] Paragraphs 45 and 47 must be read in context of the full decision. At paragraph 22 of my ‘2021 Decision’, I said:-

‘22. … At ancillary relief trial (emphasis added), it might be relevant to consider French law. However, at present (emphasis added), it was at the stage of setting aside the AR Consent Order in 2016. If it was not set aside, the AR Consent Order holds good and there can be no revisiting of ancillary reliefs. It is only when the AR Consent Order was set aside, then it might become relevant during the course of ‘re-opened’ financial ancillary relief to then consider French law by way of expert evidence.’

[42] Clearly, my views expressed at paragraph 22 referred to 2 different timing: namely, ‘At ancillary relief trial’ and ‘However, at present’ when I erred in considering the ‘materiality issue’.  Those words ‘In my decision’ at the beginning of both paragraphs 45 and 47 must be read in that context. They should not be mis-read or taken to suggest that I had already ‘pre-judged the issues at trial’ while I was only expressing my view or opinion for 2 different timing.”

(2)  In respect of the Relevance Issue -

“Paragraphs 58 to 60

…

[49] At paragraph 8 of H’s Counsel’s Written Submissions dated 7 March 2022, it was said:-

‘At §§58-60, the Judge states ‘… the difference in monetary sum has no place to fit in even at the substantive trial of a setting aside application’, thereby dismissing outright and on a summary basis of R’s submissions, despite this being a key factor in assessing materiality. The effect of the PNA is a key issue for Trial; the difference of US$12m in R’s favour, and which excludes R’s entrepreneurial business assets (Jxxx Hxxxx), is a primary basis for the set aside application.’

[50] Paragraph 58 referred to H’s case of the US$12m monetary difference between the AR Consent Order and under the PNA had he been able to set aside the AR Consent Order. From any perspective, this is only an expression of views or opinion upon a hypothetical scenario and not an ‘outright and summary dismissal of R’s submissions’.

[51] Paragraph 59 is my further views or opinion upon the same topic of difference in monetary sum having no place to fit in at the trial proper of the setting aside application. My views or opinion expressed over a ‘bad-bargain’ scenario could not be mis-read as ‘outright and summary dismissal of R’s submissions’.

[52] Paragraph 60 is nothing except stating the obvious.  It refers to those commonly accepted vitiating factors that need to be proved to overturn a settlement reached by consent.  It also contains my views or opinion that whenever a settlement was accepted and endorsed by the court, it would be reinforced with coercive force.  Such expression could hardly be taken as ‘outright and summary dismissal of R’s submissions’.”

18.  In respect of §§40-42 of the 2022 Decision concerning the Materiality Issue, we do not see the distinction sought to be drawn by the Judge as regards the different timings (ie “ancillary relief trial” and “the stage of setting aside the AR Consent Order”) to be germane to the complaint that he had prejudged the issues which ought to be determined at the trial.  The “trial” relevant for the purpose of the present discussion is the trial for the setting aside of the Ancillary Relief Consent Order, and one of the issues that had to be determined at that trial (not the ancillary relief trial) is whether a substantially different financial order (to the extent of US$12 million) would have been made but for the alleged misrepresentation / non-disclosure on the part of W.  In this regard, it is of note that at §§45-47 of the 2021 Decision, the Judge was dealing with Question (b) (namely, “[w]hether the 2 facts which H is now complaining W had misrepresented him and/or failed to fully and frankly disclose to him during the course of negotiation passes the ‘materiality’ test”), which he had identified as being the second of four questions to be determined after deciding Question (a) (namely, “… what are the issues before this Court that need to be resolved at the substantive trial in April 2022, where H is now seeking leave to adduce expert evidence”).  It is clear that, in the 2021 Decision, the Judge expressed the view that the 2 matters complained of by H were immaterial at the trial for the setting aside of the Ancillary Relief Consent Order (then scheduled to take place in April 2022), and not at the “ancillary relief trial” which would take place only if the Ancillary Relief Consent Order were set aside.  As held by the Court of Appeal in the CA Judgment, this view of the Judge is erroneous.  These having been said, we do not see that the Judge was maintaining the correctness of his previous erroneous view in the 2022 Decision, because at both §§40 and 42 thereof the Judge expressly recognized that his view on the Materiality Issue was an “error of law” and he had “erred” in that view.

19.  In respect of §§50-52 of the 2022 Decision concerning the Relevance Issue, we do not understand the Judge to be saying that he would maintain his view that the possible different financial outcome of the ancillary relief proceedings was irrelevant at the trial.  At §50 of the 2022 Decision, the Judge said that the view or opinion that he had previously expressed was upon a hypothetical scenario (ie, in the event that H would be able to prove the alleged misrepresentation or non-disclosure by W).  We do not consider this statement to amount to an affirmation of his earlier view.  However, §51 of the 2022 Decision may be read as an affirmation of the view that “difference in monetary sum [had] no place to fit in at the trial proper of the setting aside application”.  The other statements at §52 of the 2022 Defendant are general statements which are not exceptional in themselves.  §§50-52 of the 2022 Decision should not, however, be read in isolation.  As earlier mentioned, the Judge expressly recognised that he was in error in the 4 aspects mentioned at §33 of the CA Judgment.  The CA Judgement is binding on the Judge.  We do not consider that there is sufficient basis to apprehend that the Judge will not faithfully apply the principles set out in CA Judgment in his adjudication of H’s claim against W at the trial.

20.  Lastly, Mr Scott submits that the Judge did not indicate that he would keep an open mind regarding “materiality and the misrepresentation/non-disclosure”.  In view of what the Judge said at §§30 and 83 of the 2022 Decision, we do not accept this submission.

GROUND 3: FAILURE TO APPLY THE LAW RELATING TO APPARENT BIAS

21.  Under this ground, H contends that the judge erred in law in failing to substantively apply the relevant case law cited at §§24-28 of the 2022 Decision, nor any of the other cases referred to by H in submissions, to the allegations of bias but simply adopted a summary, and mechanistic approach at §§81-86 of the 2022 Decision.

22.  We agree with Mr Todd’s submission that this is, in substance, a repetition of H’s earlier complaints.  There is no suggestion that the Judge did not state the law concerning apparent bias correctly.  The Judge analysed H’s various complaints separately and in detail, and came to the conclusion that this was not a case that an objective, fair-minded and well informed reader would say that there was a real possibility that he would not bring an open and impartial mind to these proceedings, or that he had already “prejudged the issues at trial”[5]. While we may not agree with the Judge’s reasoning in some aspects (eg those mentioned in §§18 & 19 above), overall we do not consider that H has made out a case of apparent bias on the part of the Judge such that he ought to be recused from further hearing this case.  We also do not consider that the Judge proceeded on wrong principles, or his exercise of discretion to refuse to recuse himself from hearing this case was plainly wrong.

OTHER GROUNDS

23.  Under Ground 4, Mr Scott submits that, at §§76-79 of the 2022 Decision, the Judge erred in fact concerning the hearing on 21 February 2022 and the order made on that day, in that the Judge “made no order regarding the stay element of either H’s leave to appeal application or Recusal Application”[6]. This ground has no substance:

(1)  The hearing on 21 February 2022 was a call-over hearing of the Recusal Summons.  One of the orders sought in the Recusal Summons was that there be a stay of proceedings until such time as there was a transfer of the trial to another judge.  In the sealed order dated 21 February 2022, it is stated that “the Recusal Summons dated 6^th January 2022 shall be dealt with by paper disposal”.  Plainly, the effect of the order was that the whole of the Recusal Summons, including the stay application, would be dealt with on paper.

(2)  In so far as H’s application for stay of proceedings pending his application for leave to appeal against the Judge’s refusal to grant leave to adduce expert evidence is concerned, that did not form part of the application under the Recusal Summons and, strictly speaking, did not have to be dealt with at the hearing on 21 February 2022.  Anyhow, when that matter was mentioned by H’s counsel at the hearing, the Judge said (as recorded in the notes taken by solicitors for H) the following: “Summons for LTA and stay of proceedings pending LTA … OK. OH.  I won’t say anything more than that other that I’ll have to deal with this now”.  The Judge has confirmed, at §78 of the 2022 Decision, that “H’s stay application was dealt with and the decision arrived at the call over hearing was to adjourn it”.  As a matter of fact, in the Judge’s subsequent decision refusing to grant leave to appeal dated 22 March 2022, the Judge, having concluded that leave to appeal should not be granted, went on to expressly refuse to grant any order for stay of proceedings (§41).

24.  Under Ground 5, Mr Scott argues that the Judge erred and further demonstrated his apparent bias in (i) relying on the CA Judgment, which concerned H’s separate (successful) leave to appeal application to adduce expert evidence as providing a basis to reject H’s Recusal Application or suggesting that the CA Judgment had “canvassed” words used by the Judge in the 2021 Decision in the context of assessing the existence of apparent bias, (ii) attempting to rely on the CA Judgment in such manner despite being uncertain as to whether H had brought the Recusal Application to the Court of Appeal’s attention; and (iii) suggesting that it would have been appropriate (inter alia) for H to make submissions to the Court of Appeal on the entirely separate Recusal Application[7].

(1)  In respect of point (i), Mr Scott refers to the Judge’s statement at §35 of the 2022 Decision, namely -

“the absence of any comment or observation from the appellate court in the CACV Decision that I had ever erred in ‘prejudging the issues at trial’ does not support H’s Recusal Application”,

     and argues that the Judge wrongly relied on the CA Judgment as giving support for rejecting the Recusal Application.  The Judge’s statement that the CA Judgment did not support H’s Recusal Application is strictly correct.  However, if the Judge thought that the absence of any comment in the CA Judgment to the effect that he had erred in “prejudging the issues at trial” amounted to a positive finding that he had not prejudged the issues, or gave any support for rejecting H’s Recusal Application, that would be an unjustified reading of the CA Judgment.  The fact of the matter is that the hearing before the Court of Appeal in June 2022 was concerned only with the question of whether there were grounds to interfere in the Judge’s decision refusing to grant leave to H to adduce expert evidence and, if such grounds existed, whether H should be granted leave to adduce expert evidence.  The Court of Appeal was not concerned with H’s Recusal Application, and did not express any view on that application in the CA Judgment.

(2)  On the same point, Mr Scott also refers to and relies on the Judge’s statement at §46 of the 2022 Decision -

“… those words ‘even if …’ extracted from paragraph 45 of my ‘2021 Decision’ and highlighted in paragraph 9 in H’s Counsel Written Submissions had been canvassed by the appellate court at paragraph 33(3)(a) of the CACV Decision”.

     Again, if the Judge thought that the Court of Appeal’s discussion of his view expressed at §45 of the 2021 Decision could somehow be read as supporting the rejection of H’s Recusal Application, we consider that would be an unjustifiable reading of the CA Judgment.

(3)  In respect of point (ii), it would appear that the Judge did not know whether the fact, or grounds, of the Recusal Application had been brought to the attention of the Court of Appeal, although he thought it unlikely that they would have been left out by H and his lawyers[8].  As a matter of fact, the Court of Appeal was informed of those matters by H’s leading counsel in submission.  We do not, however, see that point (ii) adds anything of substance to point (i).

(4)  In respect of point (iii), the Judge said the following at §§33 to 34 of the 2022 Decision -

“[33] Although it is trite that appeal tackles upon errors on point of law or legal principles and not upon findings of facts or complaint arising from bias, I noted that H’s Recusal Application was mounted against me for ‘prejudging issues at trial’ which, if substantiated, could be an error of law susceptible to challenge on appeal.

[34]  Given the same legal team of lawyers (including Senior Counsel and Junior Counsel) were engaged by H at the Court of Appeal, I do not believe H’s Recusal Application (on the ground of ‘prejudgment’ so alleged) even though my judgment was still pending could not be brought before the Court of Appeal or would have been left out of sight by H’s legal team.”

    It is not necessary for us to decide whether H could have relied on the ground of apparent bias in support of his appeal against the Judge’s exercise of discretion to refuse to grant him leave to adduce expert evidence.  We do not rule out such possibility in a case where there is clear evidence of bias or apparent bias.  On the facts of the present case, we consider that the issue of admission of expert evidence and the issue of apparent bias are separate, and do not see that it would have been appropriate for H to advance arguments on apparent bias in support of his appeal against the Judge’s exercise of discretion to refuse him leave to adduce expert evidence on French law.

(5)  All these having been said, even if the Judge had somehow misunderstood or misapplied the CA Judgment, that does not of itself indicate bias or apparent bias on his part.

25.  Under Ground 6, Mr Scott argues that the Judge failed to explain the long delay in handing down the 2022 Decision, which came well after the original dates for the trial of the Action in April 2022 and months after the handing down of the CA Judgement, and alleges that an inference may be drawn that the Judge has sought to preclude H’s ability to appeal the 2022 Decision as there would be no sufficient time for the Court of Appeal to determine any appeal (adopting the usual appeal procedure) before the commencement of the trial on 22 November 2022.  Mr Scott also complains that the Judge denied H’s request for an oral hearing of the Recusal Summons to his prejudice[9].

(1)  In our view, there is no basis for the allegation that the Judge deliberately delayed in handing down the 2022 Decision in order to deprive H of the chance to appeal against that decision.  While the Judge’s delay in dealing with the Recusal Summons is regrettable, there is no information before the Court as to the reasons for the delay.  It would be speculative for the Court to draw any adverse inference as suggested by H.  As a matter of fact, H has not been deprived of his chance to appeal the 2022 Decision to the Court of Appeal prior to the commencement of the trial.  The Court of Appeal heard H’s application on an urgent basis, and disposed of it at the hearing on 18 November 2022.

(2)  In so far as the complaint concerning the Judge’s denial of H’s request for an oral hearing of the Recusal Summons is concerned, we see nothing exceptional about the course adopted by the Judge. Having reviewed the nature of the application and the evidence filed by the parties, we consider the Recusal Summons eminently suitable for determination on paper without an oral hearing.

26.  In all, we do not consider that H’s intended appeal has a reasonable prospect of success.  There is also no other reason in the interests of justice that we can see why the appeal shall be heard. 

DISPOSITION

27.  The Leave Summons dated 14 November 2022 is dismissed with costs to W, to be taxed if not agreed, with certificate for 2 counsel, save that no costs incurred in relation to “The Petitioner’s Bundle” containing the parties’ respective opening submissions for the trial of the action shall be allowed on taxation of W’s costs.

[1] As mentioned in §2 above, the trial dates were subsequently vacated and the trial has been re-fixed to commence on 22 November 2022.

[2] §1 of the draft Notice of Appeal.

[3] §1 of the draft Notice of Appeal.

[4] In reference to issues 4 and 5 identified by Au-Yeung J in her decision dated 8 January 2021 ([2021] HKCFI 77).

[5] See §87 of the 2022 Decision.

[6] See §7 of Mr Scott’s Skeleton in Support of Husband’s Application for Leave to Appeal dated 14 November 2022.

[7] See §8 of Mr Scott’s Skeleton in Support of Husband’s Application for Leave to Appeal.

[8] See §§32-34 of the 2022 Decision.

[9] See §9 of Mr Scott’s Skeleton in Support of Husband’s Application for Leave to Appeal.