BRAND FARRAR BUXBAUM LLP v. SAMUEL-ROZENBAUM DIAMOND LTD AND ANOTHER

HCA5191/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.5191 OF 1998

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J U D G M E N T

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1. I have before me a summons brought by the applicant, Mr Ilan Samuel, for the court to recuse itself from continuing on with the appeal which the court has heard over three days earlier in July and which the court is going to resume today and, hopefully, that appeal can then be completed either today or, at the latest, tomorrow.

2. The application was brought on the basis that in the course of the appeal hearing over the previous three hearing days, there had been remarks made by the court amounting to some 24 instances set out in the affidavit in support of the application which may give apprehension to a reasonable observer that the court might be biased against Mr Samuel.

3. An application made in circumstances where there was an on-going interlocutory application with a view to abort that interlocutory hearing is, to say the least, highly unusual and, I hope in the future, would be discouraged and condemned and never recur again.

4. I accept for the purpose of the application that the correct test of apparent bias is that now referred to in Deacons v. White Case Limited Liability Partnership [2003] 3 HKC 374, where at p.375 under the Headnote it reads :

".... the court must first ascertain all the circumstances which had 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 that the tribunal was apparently biased. ..."

5. I accept that is the applicable principle and it is by that principle the exercise will have to be undertaken. The undertaking of that exercise would involve in a situation such as this, a great deal of work.

6. The first question and the vital question I have put to Mr Acton-Bond when he commences his application is whether it is right that an interlocutory appeal, which is on-going, should be interrupted in this way by the present application. The observation of Mr Justice Peter Gibson in the case cited to me of Peter Simper & Co., Ltd v. Cooke (EAT) [1986] IRLR 19 in the penultimate paragraph is of the greatest significance. There, the learned judge said this :

" We think it right to stress the highly unusual facts of this case. Save in extraordinary circumstances, it cannot be right for a litigant, unhappy with what he believes to be the indications from the Tribunal as to how the case is progressing, to apply, in the middle of the case, for a re-hearing before another Tribunal. It is, in our view, undesirable that the Tribunal accused of giving the opinion of bias should be asked itself to adjudicate on that matter. The dissatisfied litigant should ordinarily await the decision and then, if he thinks it appropriate, he should make his dissatisfaction with the conduct of the case by the Tribunal a ground of appeal."

7. I think the wisdom of that paragraph is so clear, so obvious and so commensurate with commonsense that in relation to interlocutory hearings it is difficult to conceive the exceptional circumstances, or the most unusual circumstances where it can be right for a party, sensing that the case might not be going its way in the face of unfavourable remarks from the tribunal, to be allowed to launch an application for recusal of the court.

8. A court of appeal is there to correct the procedural errors. If a tribunal has over-reached itself and has shown apparent bias, it will be corrected on appeal.

9. What is now suggested in this case is that the court should indulge in the exercise proposed, that is, in the middle of an interlocutory appeal which is close to being completed, where the issues are of pure law largely turning on the provisions of Order 15, Order 20, the Limitation Ordinance and some of the case law and where all the evidence is on affidavit. It is suggested that in that kind of a case, the court should now stop the hearing of the appeal and indulge in this exercise.

10. To enable this exercise to be undertaken, there is firstly the question of the 24 alleged bias remarks which are disputed. There was a request for transcript by the applicant and there has to be also examined positive remarks by the same tribunal so that all the circumstances can be looked into. Then the court will be put into the invidious position of having to decide whether, having regard to all these matters (much of them disputed), the court could be said to be apparently biased.

11. There is, in these circumstances, every reason that the wisdom of Mr Justice Peter Gibson should be heeded. There is nothing which have been said to me which suggests that this is an exceptional circumstance. It has been said by Mr Acton-Bond, who was obviously acting on instruction and who was doing the best he can, that the rest of the hearing might last perhaps a bit longer than one day. Even if that is the case, that is not a justification for bringing this application in this way.

12. It seems to me that this is a case where the sooner we can get on with the appeal hearing the better it is. Who knows, at the end of the day, what would be the result, and there might not even be any appeal to the Court of Appeal by the applicant. As this appeal before me turns largely on questions of law, the court has very little scope to exercise party bias as opposed to deciding the point of law, rightly or wrongly. In reality, this is a case where the court can only decide on the true principle of law as it sees it. If the case goes against Mr Samuel, then he always has the right to appeal, both on apparent bias as well as on point of law decided against him.

13. Today's application is wholly a waste of time and expense, and I therefore have no hesitation, without even going into the question of the 24 alleged bias, to dismiss the application with costs. I propose to hear the parties on the matter of gross sum assessment.