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26 March 2019
In a relatively close-knit community such as Hong Kong, it is not uncommon for parties to proceedings or their witnesses, lawyers or experts to be known to a judge or tribunal member, which could (depending on the context) create a perception of potential bias. In these circumstances, applications might be made for the recusal of the judge or tribunal member and for the case to be reassigned. Depending on the stage which the proceedings have reached, such reassignment could result in significant adverse consequences – such as inconvenience, cost and delay. Given this, an assessment of apparent bias must be made carefully, balancing the fundamental principles of justice and the judicial resources available. Two cases decided in March 2018 serve as a timely reminder of the inherent difficulties and sensitivities involved.
The two-stage test for judicial recusal based on apparent bias is well established at common law. First, the court must ascertain all of the circumstances that have a bearing on the suggestion that a judge is biased. Second, the court must enquire whether those circumstances would lead a fair-minded and informed observer to conclude that there is a real possibility or danger that the judge is biased.(1) This requires a logical connection between the asserted apprehension of bias and a particular fact or issue in the case.
In Zee Margaret v Wong Tseng Hon,(2) the defendant made an application for recusal where the plaintiff had been a witness (and an interested party, not a formal party) in arbitral proceedings conducted around five years earlier in which the judge had acted as a barrister for the other side and cross-examined her. The judge had commendably taken it upon himself to raise the issue at the opening of a hearing. The defendant's concern appears to have been about the appearance of a reverse bias that may have been to his disadvantage.
In Lai Yiu Mun Susanna v Tsang Kai Choy Paul,(3) on the morning of the sixth day of an eight-day trial, the judge apparently received an email from a barrister and door tenant of his chambers, allegedly sharing her thoughts about aspects of the case. The barrister was apparently not in active practice. The email stated, among other things, that the barrister:
She is stated to have concluded by saying: "I don't think they need justice; they need reconciliation and respect."
When the trial commenced on the morning in question, the judge disclosed this email to the parties, following which the plaintiff applied for an order for the judge's recusal.
Notably, in neither case was there an issue of actual bias.
The two High Court judges (both sitting as deputies) granted the respective applications.
The dispute in Zee Margaret concerned matters of contractual interpretation such that witness testimony would be of secondary importance. Notwithstanding this, a determining factor for the judge in recusing himself was that, unlike the plaintiff, the defendant had been unable to fully ascertain and understand the judge's involvement when acting as a barrister years earlier in the arbitral proceedings. Therefore, the judge considered that a fair-minded observer would likely conclude that there was a real possibility that the court could be biased.
The facts of Lai Yiu Mun concerned certain representations allegedly made by the parties as regards the transfer of property and other transactions by the plaintiff to the defendants and whether they were unconditional gifts from the plaintiff to the defendants. This turned on findings of fact and the credibility of the parties involved.
The sender of the email in question was apparently an experienced barrister. The judge considered that a fair-minded observer would likely regard the sending of the email as inappropriate and that it arguably raised an issue as to the sender's motives. The email also appears to have made various alleged statements and opinions on the general personal characteristics of the parties and expressed a desire that they should mediate their differences – all of which were relevant to the issues at trial. Taken together, and notwithstanding the considerable costs incurred and the final stage which the trial had reached, the judge made the difficult decision of acceding to the recusal application on the basis that a fair-minded observer would:
conclude that there is a real possibility (not probability) that I would be influenced subconsciously by extraneous considerations arising out of the content of the Email due to my association with the Sender.(4)
As stated in the Australian judgment in Re JRL:
Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.(5)
While the test for judicial recusal and general statements about justice and bias are clear, their application is often difficult on the facts.
The decision in Zee Margaret is, perhaps, a more straightforward decision to understand, given the defendant's lack of knowledge of the prior confidential arbitral proceedings, unlike the plaintiff and the judge. The judge was concerned about the perception that this gave.
However, the outcome in Lai Yiu Mun is one which even the judge himself admitted to having difficulties with – particularly, with regard to the timing of the email sent to him. While the recusal may be justifiable in the circumstances (and without knowing more about the legal submissions), it does raise a concern that the width of the goal posts might be expanding as regards what a fair-minded observer considers gives rise to a real possibility of bias.
Some observers may be left thinking (for now) whether the outcome in Lai Yiu Mun might inadvertently encourage judicial recusal challenges and whether a more robust response may have been justified. This concern is arguably heightened where deputy judges are appointed for fixed periods – for example, in contrast to a permanent judge (who might case manage a case at an earlier stage), a deputy judge may preside only over the later stage of a case at short notice. As a passing remark, permanent judges and deputy judges are not expected to think about what might lie ahead (eg, by way of an appeal) but are encouraged to focus on the case in hand.
Applications for judicial recusal are never pleasant and, in an environment like Hong Kong, they can give rise to particular sensitivities. However, where an application has merit and a party's lawyers are instructed to take the point (taking everything reasonable into account), they are duty bound to be fearless advocates, irrespective of where 'angels may fear to tread'.
For further information on this topic please contact Rebecca Wong, David Smyth or Warren Ganesh at RPC by telephone (+852 2216 7000) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The RPC website can be accessed at www.rpc.co.uk.
(3) Lai Yiu Mun Susanna v Tsang Kai Choy Paul  HKCFI 642 and  HKCFI 732 (costs decision). In the main judgment, there is a suggestion that one of the parties may apply for permission to appeal.
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