Yung Siu Chee Margaret and Others v. Choy Ching Wa Fionne and Others

HCMP 1682/2016 and
HCMP 1568/2017
(Heard Together)
[2019] HKCFI 1472

HCMP 1682/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1682 OF 2016

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AND

HCMP 1568/2017

MISCELLANEOUS PROCEEDINGS NO 1568 OF 2017

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(Heard Together)

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D E C I S I O N

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1.This is an application by the three executrices of the Estate of Yung Yau, namely Ms Yung Siu Chee Margaret, Ms Yung Siu Fong Grace and Ms Yang Yung Sui King Winnie. They are the plaintiffs in HCMP 1682/2016 and the 1^st to 3^rddefendants in HCMP 1568/2017. They ask me to recuse from hearing the originating summonses of both proceedings. Their application is supported by Choy Ching Wa Fionne, the1^st defendant in HCMP 1682/2016 and the 4^th defendant in HCMP 1568/2017.

2.The basis of the application is that I am a Partner of Woo Kwan Lee & Lo, a solicitors’ firm (“WKLL”) and WKLL has a long standing relationship the late Mr Yung Yau, the deceased (“the Deceased”) as well as his son Mr Billy Yung.  Mr Billy Yung is not a party to these proceedings.

3.Mr Richard Leung, leading Mr Ronald Pang, Counsel for the three executrices submits that the Deceased was the founder of Shell Electric Mfg (Holdings) Co Ltd (“SMC”). This company was listed in 1984 and the firm was its legal adviser in its listing application.  At that time, according to Mr Leung’s submission, Mr Charles Lee, a then partner of WKLL was a substantial shareholder and director of SMC and Mr Peter Lee, another then partner of WKLL was its company secretary.  I should mention that both Messrs Lee are not now partners of WKLL, while Mr Charles Lee remains as a consultant of the firm.  Mr Leung also referred me to a bill issued by WKLL and paid in 2004 for services rendered to the Deceased before his death in relation to seeking certain confirmation under the Takeovers Code from the Securities and Futures Commission in relation to certain transactions.  None of the matters mentioned above concern these proceedings.

4.Mr Leung further submitted that WKLL was the legal adviser of SMC until about 2009.  SMC is not a party to these proceedings and in any event WKLL is not now its legal adviser.  He then pointed out that Mr Billy Yung is the chairman of a non-listed public company called Shell Electric Holdings Limited (“SEHL”) and Fair Wind Secretarial Services Limited (“Fair Wind”), a company secretarial service provider owned by partners of WKLL, is its company secretary.

5.At the outset of the hearing this morning, I mentioned to the parties my working history at WKLL, that I was trained there as an articled clerk in 1989, admitted as an assistant solicitor in 1992 in its Litigation Department, promoted as a salaried partner in 1995 and an equity partner a few years ago.  I further mentioned to the parties that I have not worked for the Deceased or any family members in these proceedings, and that personally I do not know them.  I did not know the matters mentioned by Mr Leung, except I have come across the bill issued by WKLL in 2004 when I was reading the parties’ written submissions and the hearing bundles last Thursday or so.

6.There is no dispute in the applicable legal principles to a recusal application, and I gratefully follow the two-fold approach adopted by Deputy High Court Judge Paul Lam SC in Lai Yiu Mun Susanna v Tsang Kai Choy Paul & Others [2019] 2 HKLRD 359 and Deputy High Court Judge Eugene Fung SC in Tang Yau Keung v Tang Choi Yau [2014] 2HKLRD 940:  First, the judge should determine whether, subjectively, he or she considers that he or she is disabled from fairly continuing with the case.  Second, if the answer to the above is in the negative, the judge should first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased, and then to ask whether those circumstances would lead to a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.  In this connection, DHCJ Paul Lam SC in Lai Yiu Mun Susanna referred to the four categories of case described by Deane J in Webb v The Queen (1994) 181 CLR 41 at 74:

“ The area covered by the doctrine of disqualification by reason ofthe appearance of bias encompasses at least four distinct, though sometimes overlapping, main categories of case. The first is disqualification by interest, that is to say, cases where some direct or indirect interest in the proceedings, whether pecuniaryor otherwise, gives rise to a reasonable apprehension of prejudice,partiality or prejudgment. The second is disqualification by conduct, including published statements. That category consistsof cases in which conduct, either in the course of, or outside, the proceedings, gives rise to such an apprehension of bias. The third category is disqualification by association. It will often overlap the first (e.g., a case where a dependent spouse or child has a direct pecuniary interest in the proceedings) and consists of cases where the apprehension of prejudgment or other bias results from some direct or indirect relationship, experience or contact with a person or persons interested in, or otherwise involved in, the proceedings. The fourth is disqualification byextraneous information. It will commonly overlap the third (e.g., a case where a judge is disqualified by reason of having heard some earlier cases …) and consists of cases where knowledge of some prejudicial but inadmissible fact or circumstance gives rise to the apprehension of bias.”

7.Applying the aforesaid test to the present application, I conclude that I ought not recuse myself from hearing the originating summonses of these two proceedings, for the following reasons:

(1)   As I said above, I have not acted for the Deceased and the family members in these proceedings and I do not know them.  As such, I do not consider that I am disabled from fairly continuing with the case.

(2)   As to apparent bias, Mr Leung submits that the first category and the third category are applicable to the present situation.  I do not agree.

(3)   As to the first category, I do not consider I have some direct or indirect interest in these two proceedings which gives rise to a reasonable apprehension of prejudice, partiality or prejudgment.  WKLL, of which I am a Partner, is not acting for any of the parties.  As to Fair Wind, while I agree with Mr Leung that income accrues to the partnership of WKLL which owns Fair Wind, for the mundane company secretarial services that Fair Wind renders to SEHL, SEHL is not a party to the proceedings.  Mr Leung however submits that Mr Billy Yung, the person who controls SEHL, is substantially involved in these proceedings, not as a party but as the source of the information of some evidence provided to the four beneficiaries who commenced HCMP 1568/2017 and as the person behind the scene who “masterminds” many of the beneficiaries’ conducts.  I agree with the submission of Mr Edward Chan SC, leading Mr Ken To, that this is an irrelevant consideration.  In considering the issues in question in these proceedings, application for removal of the executrices for instance, the Court should look at the conducts of the executrices and all the surrounding circumstances objectively, and needs not, and in my view should not, pierce the veil and investigate whether those beneficiaries making the removal application is, so to speak, the alter ego of Mr Billy Yung.  All in all, I am satisfied that none of the issues in question in these proceedings is related to WKLL or Fair Wind, and that accordingly either WKLL or Fair Wind does not have any direct or indirect interest in these two proceedings which mightgive rise to any reasonable apprehension of prejudice, partiality or prejudgment.

(4)   As to the third category, even if relevant (which I doubt), the association between WKLL and the Deceased and SMC has not been continued for many years, at least 10 years according to Mr Leung’s submission.  I have no personal relationship with any of the family members or the parties.  I do not see how this would give rise to apprehension of prejudgment or other bias.

(5)   Mr Leung submits that I should err on the safe side to recuse if there is any doubt.  But as I have no doubt that there should not be any reasonable apprehension of bias, and noting the very undesirable consequence of having much time and costs if an adjournment is ordered, I do not see there is any valid basis to recuse myself from hearing this matter.

8.I shall therefore continue with hearing the two originating summonses.

Mr Richard Leung and Mr Ronald Pang, instructed by Wong, Shum & Co, for the 1^st to 3^rd plaintiffs (in HCMP 1682/2016) and the
1^st to 3^rd defendants (in HCMP 1568/2017)

Mr Isaac Yung, instructed by KCL & Partners, for the 1^st defendant (in HCMP 1682/2016) and the 4^th defendant (in HCMP 1568/2017)

Mr Edward Chan SC and Mr Ken To, instructed by Wilkinson & Grist, for the 2^nd to 5^th defendants (in HCMP 1682/2016) and the
1^st to 4^th plaintiffs (in HCMP 1568/2017)