WSSA v SYH (Application for Recusal) [2024] 4 HKLRD 325, [2024] HKCA 735

Robert Pang SC, Theresa Chow and Adrian Kwan represented the petitioner (respondent) in WSSA v SYH (Application for Recusal) [2024] 4 HKLRD 325, [2024] HKCA 735.

H and W were married in 2007. They had two children, a son born in 2009 and a daughter born in 2012. In 2017 they separated. W having in 2020 presented a petition for divorce, a decree nisi was pronounced in June 2021. The parties had throughout been engaged in a bitter and much litigated dispute over the children. H contended that some of the Judge’s interim orders, case management orders and comments demonstrated a real possibility that the Judge was biased against him. So contending, H asked the Judge to recuse himself. The Judge refused to do so. And he refused leave to appeal against his refusal to recuse himself. H then: (i) renewed before the Court of Appeal his application for leave to appeal to them against the Judge’s refusal to recuse himself; and (ii) sought from them a stay of the refusal of recusal pending his intended appeal. He put forward two grounds of appeal. Ground 1 was that the Judge had misapplied the reasonable apprehension of bias test. And Ground 2 was that the Judge had failed to take into account relevant considerations when deciding whether or not to recuse himself. On Ground 1, H argued that the Judge had failed to examine a number of matters from the perspective of a fair-minded and informed observer when the Judge concluded that there was no real risk of bias. The matters pointed to by H in this regard were: (a) the unilateral imposition of an interim non-molestation order against him; (b) the imposition of an interim supervised access order against him; (c) certain remarks by the Judge against him in response to his intended application to vary the interim access ordered; (d) a decision to vacate the dates of the trial on interim shared care and control and access without the parties’ input; (e) certain remarks by the Judge against him when refusing to vary the interim supervised access arrangements; (f) the leave requirements allegedly imposed against him in regard of his intended summons on holidays; and (g) certain remarks by the Judge against him in response to that summons. On Ground 2, H argued that the Judge failed to take into account the following factors when refusing to recuse himself: (i) that a fair-minded and informed observer would think that there was a real possibility of bias on the part of the Judge in view of the facts; and (ii) that the chances of success of child dispute resolution and financial dispute resolution would be severely compromised by H’s loss of faith in the Judge.

Held, refusing leave to appeal and formally dismissing the stay application because it did not arise since leave to appeal was refused, that:

• (1) In the circumstances, H had not made out a case of apparent bias on the basis of the orders for interim non-molestation and interim supervised access. Items (a) and (b) of Ground 1 were therefore not reasonably arguable. (See paras.23-32.)
• (2) The Judge was in the circumstances entirely justified in his comments complained of under item (c) of Ground 1. That item was therefore not reasonably arguable. (See paras.33-37.)
• (3) Even if the Judge had erred in vacating trial dates without inviting submissions from the parties, such erroneous case management decision was not to be equated with bias or any real risk of bias. Item (d) of Ground 1 was therefore not reasonably arguable. (See paras.38-44.)
• (4) As for the Judge’s comments complained of under item (e) of Ground 1, they were only passing rhetorical remarks made in response to H’s submissions, they had been taken out of context by H, and his complaint against them was without substance. That item was therefore not reasonably arguable (Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd [2014] 3 HKLRD 375 considered). (See paras.45-50.)
• (5) Under items (f) and (g) of Ground 1, H contended: (i) that the Judge had in effect imposed a Grepe v Loam order against him; (ii) that the Judge had made unwarranted remarks against him; and (iii) that the making of such an order and the making of those comments showed a reasonable possibility of bias. But the Judge had not made any such order, and his comments were warranted. Those items were therefore not reasonably arguable. (See paras.51-56.)
• (6) Neither individually nor collectively did the matters urged by H under Ground 1 amount to a case of apparent bias calling for recusal (Re AZ (A Child) [2022] 4 WLR 78, GM-SA aka DG, M-S v DDPJ (Recusal) [2022] HKFLR 493 applied). (See paras.19-20, 57.)
• (7) Turning to Ground 2, the reference therein to what a fair-minded and informed observer would think failed on the basis on which Ground 1 failed. As for the point under Ground 2 that H’s loss of confidence in the Judge would undermine the chances of success of facilitative hearings on child dispute resolution and financial dispute resolution, it failed for the reason that apparent bias was not a question of discretion but one of law. Judges could not recuse themselves if there was no apparent bias. They must recuse themselves if there was apparent bias. The Judge should not recuse himself if there was no apparent bias, and there was none in this case. If the Judge were subsequently to have concerns that his presence would somehow undermine the facilitative hearings, the option was open to him to, without disrupting the proceedings or causing any inconvenience, direct that such hearings be presided over by another judge. For those reasons, Ground 2 was not reasonably arguable (Axnoller Events Ltd v Brake [2021] EWHC 949 (Ch) applied). (See paras.58-62.)
• (8) Since leave to bring the intended appeal was refused, the question of a stay pending such an appeal did not arise, and the application for it was to be formally dismissed. (See para.63.)

[The above is excerpted from the headnote to the report in HKLRD.]