Wssa v. Syh

CAMP 338/2023, [2024] HKCA 735

On appeal from [2023] HKFC 125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 338 OF 2023

(ON AN INTENDED APPEAL FROM FCMC NO 4633 OF 2020)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.This is a renewed application for leave to appeal against the decision of HH Judge George Own dated 30 June 2023 (“Decision”)[1], by which he dismissed the respondent husband’s recusal application. The judge also refused to grant leave to appeal in a decision dated 20 October 2023 (“Leave Decision”)[2]. The husband made a renewed application to the Court of Appeal for leave to appeal by a summons filed on 3 November 2023 (“Leave Summons”).

2.In this judgment, we will refer to the petitioner wife as the “wife” and the respondent husband as the “husband”.

3.Ms Anita Yip SC leading Mr Ken Chan have filed written submissions on behalf of the husband in November 2023 in support of his renewed leave application. Ms Theresa Chow and Mr Adrian Kwan have file written submissions on behalf of the wife in November 2023 to oppose the application.

4.Having considered the written submissions, on 27 February 2024, directions were given by the Court of Appeal for a short rolled-up hearing of the Leave Summons, and, if leave to appeal be granted, the hearing was to be treated as the substantive hearing of the appeal. The purpose of the oral hearing was to ascertain if there is anything of importance in addition to the evidence and submissions already advanced, as the application would need to be handled with extra care in light of the serious nature and consequence. The parties were given leave to lodge short additional submissions and have done so in July 2024.

5.On 14 March 2024, the husband filed a summons in the Court of Appeal for a stay of execution of the Decision pending his intended appeal against the Decision (“Stay Summons”)[3]. The Stay Summons also seeks an interim stay pending determination of the Leave Summons, alternatively that all proceedings in this matter be heard by a different judge in the Family Court in the interim. This summons is made on the basis that he has a strong appeal and would suffer grave prejudice in the absence of a stay, as the judge would continue to make orders and decisions that are biased against him.

6.On 22 March 2024, we refused to grant an interim stay and the alternative interim relief that all proceedings be heard by a different judge. We directed the Stay Summons to be heard with the Leave Summons at the rolled-up hearing.

Background

7.The parties have prepared detailed chronologies for the court, which we have taken into consideration. For present purpose, a brief introductory account of these background matters would suffice.

8.The parties were married in 2007. They have two children, a boy born in 2009 and a girl born in 2012. The parties separated in 2017. The wife filed for divorce in 2020, and the decree nisi for divorce was granted in June 2021.

9.The parties were locked in a bitter dispute over their children throughout these proceedings. They took out applications for various orders against each other, including ouster orders, non-molestation orders, committal and other applications to vary interim access arrangements. Their solicitors sent numerous letters to the judge (most of which were lengthy and had various enclosure), to complain about the other party or to seek directions over different matters regarding the conduct of the proceedings. The judge has been presiding over this case as the docket judge for quite some time. He requested the parties to stop writing lengthy letters to the court, given the valuable time and limited resources of the court[4], but this has not brought about the desired effect.

10.The husband is dissatisfied with some of the interim orders, case management orders and comments made by the judge, and he argues that these matters demonstrate there was a real possibility that the judge was biased against him. We will return to these orders and the comments when we discuss the husband’s intended grounds of appeal.

11.The husband explains he has not appealed against the orders he is dissatisfied with because it would be futile and counter-productive in some instances, that it would not cause him inconvenience in other instances, and that an appeal would only cost money and time with no real consequences. Besides, the judge’s comments against him are generally not appealable.

12.The husband filed a summons on 3 January 2022 seeking an order that the judge be recused on the ground of apparent bias. The judge heard the application on 23 August 2022 and handed down the Decision dismissing it on 30 June 2023.

13.By the Decision, the judge held that the husband’s complaints were unjustified and that an objective bystander would not have concluded that there was any apparent bias or risk of apparent bias based on the complaints raised by the husband.

14.By a summons dated 14 July 2023, the husband sought leave to appeal against the Decision. The judge refused leave on 20 October 2023. The husband now seeks leave from this court to appeal against the Decision.

Intended grounds of appeal

15.The husband raises two intended grounds of appeal in the draft notice of appeal, namely (1) the judge misapplied the reasonable apprehension of bias test, and (2) the judge had failed to take into account relevant considerations when deciding whether to recuse himself.

16.As regards the first intended ground of appeal (Ground 1), the husband argues that the judge had failed to examine a number of matters from the perspective of a fair-minded and informed observer in concluding that there was no real risk of bias. The matters relied on by the husband relevant to this ground are as follows:

(1)  the unilateral imposition of the interim non-molestation order against the husband (Ground 1(a));

(2)  the imposition of the interim supervised access order against the husband (Ground 1(b));

(3)  certain remarks made against the husband in response to his intended application to vary interim access (Ground 1(c));

(4)  the decision to vacate the trial on interim shared care and control and access without the parties’ input (Ground 1(d));

(5)  certain remarks made against the husband in refusing to vary the interim supervised access arrangements (Ground 1(e));

(6)  the leave requirement allegedly imposed against the husband in respect of his intended Holiday Summons (Ground 1(f)); and

(7)  certain remarks made against the husband in response to his intended Holiday Summons (Ground 1(g)).

17.In relation to the second intended ground of appeal (Ground 2), the husband argues that the judge had failed to take into account the following factors when refusing to recuse himself:

(1)  a fair-minded and informed observer would think that there is a real possibility of bias on the part of the judge in view of the facts of this case; and

(2)  the chances of success of Child Dispute Resolution and Financial Dispute Resolution would be severely compromised because the husband has lost faith in the judge.

18.The intended grounds of appeal are the same as those considered by the judge in the Leave Decision. The husband accuses the judge of adopting a defensive mode in the Decision and the Leave Decision in rejecting the complaints against him instead of reviewing his conduct as the notional fair-minded and informed observer.

Legal principles

19.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” (GM-SA aka DG, M-S v DDPJ (Recusal) [2022] HKFLR 493 at §10).

20.Bias means a prejudice against one party or his case for reasons unconnected with the merits of the case. The mere fact that a judge had commented adversely on a party would not, without more, found a sustainable objection. An expression of scepticism is not suggestive of bias unless the judge conveys an unwillingness to be persuaded of a factual proposition whatever the evidence may be (In re AZ (A Child) [2002] 4 WLR 78 at §§56(6) to (8)).

21.The notional reasonable, fair-minded and informed observer is the sort of person who always reserves judgment on every point until he has seen and fully understood both sides of the argument. He is not unduly sensitive or suspicious, nor is he complacent. He knows that fairness requires that a judge must be, and must be seen to be, unbiased. Although not a lawyer, he is not wholly uninformed and uninstructed about the law in general or the issue to be decided and would sought to be informed on at least the most basic considerations relevant to arriving at a conclusion. He would be taken to know that adjudicators sometimes say or do things they might later wish they had not without necessarily disqualifying themselves, and may properly adopt reasonable efforts to confine proceedings within appropriate limits. He would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties taken out of context[5].

22.It is common ground that the refusal by a judge to recuse himself from hearing a case is an exercise of discretion. The Court of Appeal 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 (GM-SA aka DG at §12).

Grounds 1(a) & (b): interim non-molestation order and interim supervised access order

23.Under Grounds 1(a) and 1(b), the husband relies on the interim non-molestation order and the interim supervised access order granted by the judge against him on 29 July 2021 and argues that the judge should have found there was a real risk of bias based on the granting of the two orders, which the husband says are extreme orders and plainly wrong.

24.The judge explained the circumstances leading up to the granting of the relevant orders in §§23 to 29 of the Decision. In summary:

(1)  By a summons dated 10 September 2020, the wife applied for an ouster order and non-molestation order against the husband. The summons was adjourned to a hearing before a judge on 29 July 2021 for directions.

(2)  At the hearing on 29 July 2021 which was scheduled for one hour, the judge heard extensive submissions from senior counsel on both sides. The lengthy hearing started at 2:33 pm and ended at 8:31 pm (with a 90-minute break in between).

(3)  In deciding what orders to make, the judge considered the Single Joint Psychological Expert Report dated 25 June 2021 prepared by Miss Lora Lee dated 25 June 2021 (“SJE Report”) and the Updated Memo prepared by the Social Welfare Officer dated 26 July 2021 (“Updated Memo”).

(4)  Insofar as the Updated Memo is concerned, the judge had specifically ordered it to be prepared on an expedited basis on 30 June 2021 in order to help him decide what orders should be made at the hearing on 29 July 2021.

(5)  At the end of the hearing on 29 July 2021, the judge granted various orders including an interim ouster order, the interim non-molestation order, and the interim supervised access order and made other case management decisions.

25.In relation to the interim non-molestation order, the husband argues that the judge erred in suggesting there was a practice whereby the court will make an interim non-molestation order against a party who refuses to provide any undertaking to that effect. As to the interim supervised access order, the husband argues that the judge erred in characterising his week-on week-off proposal as one concerning care and control (as opposed to access) and that the judge dismissed his request for equal unsupervised access “by default” as he was subject to an ouster order.

26.In granting those orders on 29 July 2021, the judge was acutely aware that any orders to be made by him must be in the best interests of the children[6]. The judge considered the SJE report and the Updated Memo, the latter of which was prepared on an expedited basis for the purposes of hearing on 29 July 2021. Further, the judge was clearly aware that the parents were making numerous allegations against each other which he was not in a position to resolve at that stage[7].

27.Nonetheless, the judge formed the view that the interim non-molestation order was necessary to ensure some form of security and protection over the children before he has had the chance to hear substantive arguments[8]. Similarly, the judge thought it was necessary to make the interim supervised access order, having regard to the best interests of the children[9]. In our view, the judge was entitled to grant the orders he made on 29 July 2021.

28.We do not understand the judge to be saying that there is a practice where the court would invariably grant an interim non-molestation order against a party who refuses to provide an undertaking. Rather, the judge was simply saying that a party facing an application for a non-molestation order would usually provide such an undertaking in the interim period pending the determination of the application[10]. If no such undertaking was forthcoming, the court has to consider whether an interim order is necessary on the facts of the case, which was what the judge has done in the present case.

29.Insofar as the interim supervised access order is concerned, once it is recognised that the order was necessary and in the children’s interests, the argument over whether the husband’s week-on week-off proposal was one concerning care and control or access becomes moot. The short point is that the judge formed the view that unsupervised access was inappropriate and it was open to the judge to take that view. For the same reason, we do not think it is right for the husband to say that the judge has rejected equal unsupervised access by default simply because the husband was subject to an ouster order.

30.In all, we do not think the husband has made out a case of apparent bias based on the granting of the interim non-molestation order or the interim supervised access order. Nor do we consider that the judge has proceeded on wrong principles or exercised his discretion wrongly in refusing to recuse himself was plainly wrong.

31.For completeness, it appears that the parties did in fact give mutual non-molestation undertakings prior to the hearing on 29 July 2021. If such an undertaking was in fact given as recorded in the order dated 10 September 2020, it would be unnecessary for the court to make an interim non-molestation order. However, we do not think this affects the above analysis, given that the undertaking would appear to have escaped the attention of the parties and the court[11]. We would also observe the fact that the undertaking was given does illustrate the point that undertakings are commonly given as an alternative to an interim order.

32.For all the above reasons, we do not think Grounds 1(a) and (b) are reasonably arguable.

Ground 1(c): response to intended application to vary interim access

33.Under Ground 1(c), the husband refers to certain comments made by the judge in a letter dated 18 August 2021 sent to the husband’s solicitors in response to the husband’s intended application to vary interim access. The comments were said to be unnecessary and unwarranted and demonstrated a dismissive attitude. The husband argues that these comments would leave the fair-minded and informed observer with an impression of real possibility of bias.

34.The letter dated 18 August 2021 reads as follows:

“1. Please identify precisely, apart from Respondent’s personal wishes and desires, the material changes of circumstances (if there is any) since the interim defined access Order was granted on 29/7/2021 which call for an urgent variation of the said Order despite the fact that the substantive trial proper of access is due to start on 7 September 2021 (that is, in only 3 weeks’ time).

2. Please also note the Respondent appeared to be seeking variation of the interim defined access before the children’s summer holiday end, that is, 31 August 2021 (which is only about 2 weeks ahead from now (paragraph 5 of the Respondent’s 11^th Affidavit)…” (Emphasis in original).

35.The circumstances leading up to letter dated 18 August 2021 are set out in §§73 to 81 of the Decision and may be summarised as follows:

(1)  On 30 July 2021, the day after the interim supervised access order was made, the husband’s solicitors wrote to the judge and asked for a variation of that order. They sent three more letters to the judge on the same matter on 3 and 4 August 2021.

(2)  Those letters prompted a flurry of letters to the court from the wife’s solicitors complaining about the husband’s litigation conduct, the absence of a proper summons and the absence of any material change in circumstance to justify a variation.

(3)  On 13 August 2021, the husband’s solicitors wrote the judge seeking an urgent hearing to vary access, even though the four-day trial of the husband’s summons for interim shared care and control was scheduled to commence on 7 September 2021, in three weeks’ time.

(4)  On 18 August 2021, the judge responded to the letter sent by the husband’s solicitors in the terms set out above.

36.Against this background, it seems to us that the comments made by the judge were entirely justified. We agree with the judge there was a lack of urgency and exceptional circumstances which justified an urgent hearing – the interim supervised access order was granted on 29 July 2021 and the trial of the husband’s summons for interim shared care and control was scheduled to take place soon. The judge’s concerns were apparent from the letter dated 18 August 2021, and it is unfair for the husband to accuse the judge of retrospective reasoning. We also agree with the judge the fact that he had heard the husband’s application to vary access on 7 September 2021 (after the trial dates were vacated) dispels any apprehension of bias.

37.Accordingly, we do not think that Ground 1(c) is reasonably arguable.

Ground 1(d): vacating September trial dates without parties’ input

38.As stated above, the four-day trial of the husband’s summons for interim shared care and control was due to start on 7 September 2021. However, the judge vacated the trial dates on 30 August 2021. The husband argues that the judge did so without the parties’ input and that this demonstrates a real possibility of bias.

39.The circumstances leading to the vacation of the trial dates are set out in §§93 to 99 of the Decision and may be summarised as follows:

(1)  On 30 June 2021, the judge directed that the SJE Report be provided to the Social Welfare Officer so that she could opine on the appointment of the Official Solicitor to represent the two children or only the elder child. In making that direction, the judge made clear to the parties it was possible that the September 2021 trial dates might not proceed as planned because there might be a lot of changes in the event that the Social Welfare Officer was to recommend appointment of the Official Solicitor.

(2)  At the next hearing on 29 July 2021, the judge appointed the Official Solicitor to represent the children after the Social Welfare Officer recommended the appointment. The judge observed during the hearing it was possible that the trial might not go ahead, and this would depend on the Official Solicitor’s position after they came into the picture. He also said all of them would have to wait and see.

(3)  By a letter to the court dated 25 August 2021[12], the Official Solicitor invited the judge to vacate the trial dates out of a concern that his report could not properly and correctly reflect the true voice and the best interest of the children because of outstanding matters which needed to be addressed. Those matters were: (i) the parties had not arranged the elder child to receive psychological therapy as directed by the court, (ii) the parties had not undergone psychiatric assessment/treatment, (iii) the parties had not explored the possibility of placing the elder child in foster care as recommended by the SJE, and (iv) an updated social investigation report might be needed.

(4)  On 30 August 2021, the judge wrote to the Official Solicitor and the parties stating that he agreed with the views of the Official Solicitor. He vacated the September trial dates and asked the parties to, inter alia, assist the Official Solicitor to tend to the outstanding matters.

(5)  By letter dated 31 August 2021, the husband’s solicitors informed the judge that they disagreed with the views of the Official Solicitor to vacate the trial dates. They also asked the judge to reinstate the original trial dates or to deploy one or two of the original trial dates between 7 and 10 September 2021 to hear the husband’s intended application to vary the interim access arrangements made on 29 July 2021.

(6)  In the end, the judge acceded to the husband’s request to deploy one of the original trial dates to hear the husband’s intended application to vary interim access. The husband took out that summons on 6 September 2021 and it was heard on 7 September 2021.

40.As pointed out by the judge, the Official Solicitor was appointed by him to represent the children’s interests. If the Official Solicitor considered that he could not ascertain the children’s wishes and what was in their best interests because certain matters were outstanding, the judge was entitled to take that into account and, as a matter of case management, not to press ahead with the trial of the husband’s summons for interim shared care and control.

41.The husband accepts that the judge has power to vacate the trial on his own motion under Order 1B, rule 2(4) of the Rules of the District Court, Cap 336H (“RDC”), without hearing the parties or giving them an opportunity to make representations. However, he argues that the order vacating the trial dates did not contain a statement to the effect that the parties can apply to have the order set aside, varied or stayed, as required under Order 1B, rule 2(5)(b) of the RDC. Whilst the order did not contain the required statement, the husband was not prejudiced by this omission. His solicitors sent a letter to the judge the very next day inviting the judge to reinstate the trial dates or to deploy one or two of those dates to hear the husband’s intended application to vary interim access, and the latter was accepted by the judge.

42.The husband also complained it was wrong for the judge to say that it was impossible for the parties to make representation within the 13-day period to avoid adjourning the four-day trial[13]. We do not understand the judge to be saying that the parties were not in a position to respond to the Official Solicitor’s comments. He was simply stating his view that the parties’ submissions would not answer the Official Solicitor’s concerns that there was insufficient time before trial for the outstanding matters to be addressed[14]. It was open to the judge to take that view.

43.Even if the judge had erred in vacating the trial on his own motion without inviting submissions, it was wrong to equate this (ie an erroneous case management decision) with one of bias or any risk of bias. It is clear to us from the correspondence exchanged that the judge was of the view that the Official Solicitor was not in a position to compile a full report, and that he needed a full report in order to determine what would be in the best interests of the children. It was these concerns which prompted the judge to vacate the trial dates, and we do not see any basis for the husband to complain about apparent bias. The fact that the judge acceded to the husband’s request to deploy one of the original trial dates to hear the husband’s variation summons fortifies this conclusion.

44.Accordingly, we agree with the judge that the fair minded and informed observer would not conclude there was any apparent bias or risk of apparent bias against the husband based on this episode, and we do not consider Ground 1(d) to be reasonably arguable.

Ground 1(e): comments made in refusing to vary interim supervised access

45.The judge heard the husband’s application to vary interim access arrangements on 7 September 2021. He refused the husband’s request to substitute the supervised access by a representative from Rent-A-Mum by the domestic helper newly hired by the husband[15] and gave an ex tempore ruling the same day after a hearing which lasted for almost the whole day. The husband relies on certain comments made by the judge in his ex tempore ruling to argue that there was a risk of apparent bias.

46.The relevant part of the ex tempore ruling containing the comments in question (which we underline for ease of reference) is as follows:

“As to the father’s application for uplifting the supervised access arrangement by Rent-A-Mum, the reason put forward was that the father had all along been a caring and capable parent in taking care of the children. This was seen and revealed by the Rent-A-Mum reports. The father-child access requires no surveillance, no supervision by any third party.

I find there is an oddity in such a submission. On the one hand, father heavily relied upon the Rent-A-Mum reports to support his ability and capability of taking care of [elder child and younger child] during access in the past weeks. Senior Counsel Miss Yip has taken the effort to take me through a number of paragraphs in those reports prepared by Rent-A-Mum.

Having said, without the presence of the Rent-A-Mum during access in the past, where would be the evidence to support the father’s own case that he is a suitable carer of the children? Why would the father now be so concerned with the presence of Rent-A-Mum and would ask for uplifting the supervision arrangement? Would the father now want something to happen during access without being notified or recorded by any third-party witness, say, the Rent-A-Mum?

As a matter of fact, there is no evidence before the court that the presence of the Rent-A-Mum had obstructed or hindered or affected the access which was reportedly to have happened smoothly.

I decided that the supervision by Rent-A-Mum and Madam S should continue for this interim period until further order.” (Emphasis added)

47.The judge dealt with this complaint in §§120 to 125 of the Decision. The judge explained that the comments in question were rhetorical/hypothetical and were made in response to the husband’s submission that third party supervision was unnecessary in circumstances in which the husband continued to rely on the Rent-A-Mum reports to demonstrate that he was a caring and capable parent. The judge also explained that the comments do not in fact contain any prejudicial criticisms against the husband.

48.As we see it, the husband has taken the judge’s comments out of context. Looking at the ruling as a whole (and the judge had gone through the lengthy dialogue and exchange of views with Senior Counsel on both sides)[16], those comments were nothing more than a passing rhetorical remark made in response to the husband’s submissions. It would be wrong to conclude there was bias or risk of bias on the part of the judge from this isolated remark in the ex tempore ruling, which might have been worded rather differently. We bear in mind the objective bystander would know that judges sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers (Falcon Private Bank v Borry Bernard Edouard Charles Limited [2014] 3 HKLRD 375 at §52).

49.The husband also takes issue with the judge’s explanation that having a representative of Rent-A-Mum present would avoid any unnecessary allegations of the helpers’ “snooping”. He argues that this justification is an afterthought. We do not accept this submission. The reference to “snooping” was made in response to the husband’s submission made below that the judge’s insistence of having two representatives from Rent-A-Mum when Madam S was unavailable demonstrates bias. The judge merely pointed out that the decision came about when counsel for the husband raised the question of what arrangements should be put in place if Madam S was unavailable. The judge decided that another Rent-A-Mum representative should be there, but if that could not be arranged within 20 minutes, there should be make-up access[17]. There is no substance in this complaint.

50.In the premises, we do not think Ground 1(e) is reasonably arguable.

Grounds 1(f) and 1(g): complaints relating to the intended Holiday Summons

51.Grounds 1(f) and 1(g) relate to the handling of the husband’s intended application to vary access arrangements over the holidays in late 2021 and early 2022 (“Holiday Summons”). The husband complains that the judge had effectively imposed a Grepe v Loam order[18] against him. The husband also takes issue with certain remarks made by the judge in relation to the intended Holiday Summons in a letter dated 10 December 2021. Again, the husband argues that these matters show there was a possibility of bias.

52.The background relevant to these complaints is set out at §§128 to 146 of the Decision. In short:

(1)  On 8 November 2021, the husband’s solicitors wrote to the judge (enclosing, amongst other things, a draft of the Holiday Summons) and asked that the summons be listed for hearing on 15 November 2021, the call-over hearing of the husband’s committal application against the wife. It was said that the parties had agreed on directions for the committal application and that the hearing would be vacated, but no consent summons had been filed at that stage.

(2)  On 9 November 2021, the judge directed that the hearing on 15 November 2021 do stand as the directions hearing of the husband’s committal application and that the intended Holiday Summons be scheduled for a call-over hearing on a separate date.

(3)  On 10 November 2021, the husband’s solicitors wrote to the judge and attached a copy of the consent summons to vacate the hearing of the husband’s committal application. The husband’s solicitors reiterated their request that the intended Holiday Summons be heard on 15 November 2021. Copies of the Holiday Summons and the husband’s 13^th affidavit with eight exhibits totalling 135 pages were attached to the letter.

(4)  On 12 November 2021, the judge granted an order in terms of the consent summons and vacated the hearing date of 15 November 2021. In relation to the intended Holiday Summons, in view of the factual issues raised in the husband’s 13^th affidavit, the judge wrote to the husband’s lawyers and asked them to “seek consent from [the wife]’s solicitors and Official Solicitors as to their readiness”.

(5)  On 15 November 2021, the husband’s solicitors approached the Listing Officer of the Family Court to arrange for the intended Holiday Summons to be listed for hearing on the next available date (which was said to be 13 December 2021). However, paragraph 6 of the Holiday Summons asked for the application to be disposed of on paper. In the absence of any clarification from the husband’s solicitors, no date was arranged by the Listing Officer.

(6)  On 19 November 2021, the following directions which were given by the judge on 17 November 2021 were sent to the husband’s solicitors:

“1. Paragraph 6 of the [intended Holiday Summons] sought for the application to be dealt with by way of paper disposal. Hence, no date should be fixed for the [intended Holiday Summons].

2. However, the reliefs prayed for in the [intended Holiday Summons] would normally have to be dealt with through hearing instead of paper disposal.

3. Moreover, it is noted that a CDR has now been fixed for 8 March 2022 at 10:30 a.m. (1 day reserved) for Respondent’s Summons dated 2/9/2021. Please substantiate the urgency (if any) for [intended Holiday Summons] to be issued now.”

(7)  On the same day, the husband’s solicitors responded and again requested that the intended Holiday Summons be listed for a hearing on 13 December 2021, alternatively for paper disposal if the date of 13 December 2021 was no longer available. The request was repeated on 30 November 2021.

(8)  On 6 December 2021, the judge replied to the husband’s solicitors that the hearing date of 13 December 2021 was no longer available and asked them to “seek consent from all parties on other options for the [intended Holiday Summons]”.

(9)  On 8 December 2021, the husband wrote back to the judge and asked that the intended Holiday summons be heard as soon as possible or by way of paper disposal because of the “urgency” of the application.

(10)  On 10 December 2021, the following directions/comments which were made by the judge on the previous day were sent to the husband’s solicitors:

“1. Your letter refers.

2. The so called ‘urgency’ for hearing the [intended Holiday Summons] prior to commencement of the coming Christmas school holiday on 21/12/2021 was based upon the Respondent’s personal wish, aspiration and/or manipulative and/or assertive manner of conducting litigation as opposed to any legitimate juridical grounds considered objectively.

3. Given the limited resources and valuable time of the Court, bombarding requests for immediate or short-notice hearing under the disguise of ‘urgency’ should be refrained as such requests would not be considered by the Court.

4. Paragraph 2 of the Court’s directions dated 6/12/2021 was to ensure all other parties were given the fair chance and option(s) of expressing their views over the way to dispose of the [intended Holiday Summons] and not directing them to concede to the reliefs within the [intended Holiday Summons].” (Emphasis in original)

53.The husband claims that he was not able to file the intended Holiday Summons at the Registry on 15 November 2021 without the permission of the judge, and this meant that the judge had effectively made a Grepe v Loam order or a Restricted Application Order against him. We reject this submission. The judge made no such order. If the judge had made such an order, he would not have given the direction on 9 November 2021 that the intended summons should be scheduled for a call-over hearing, nor would he have commented on how the intended Holiday Summons should be disposed of by his letter dated 19 November 2021.

54.Much of the confusion on 15 November 2021 which took place at the Registry of the Family Court occurred because the husband asked for the intended Holiday Summons to be listed for an urgent hearing but at the same time requested that the summons be disposed of on paper. If the husband wanted a date for the hearing of the intended Holiday Summons, there was nothing to prevent him from taking out the application and obtaining a hearing date in the usual way[19]. Alternatively, if the husband wanted the application to be disposed of on paper, he should have made this clear in his summons, and he should not have asked for a hearing date at the Registry of the Family Court.

55.Turning to the judge’s letter dated 10 December 2021, we consider that the comments made by the judge in that letter were justified. The judge’s comments were made in response to the various letters sent by the husband’s solicitors seeking an urgent hearing or expedited disposal of the intended Holiday Summons. The husband’s solicitors adopted this course of action because they argued that the matter should be heard urgently. The judge is entitled to his view that urgency was not shown, considering that he had already increased the husband’s interim access generally back on 7 September 2021[20]. In all, considering the context that has prompted the judge’s letter dated 10 December 2021, it seems to us that the judge’s comments were warranted.

56.For the above reasons, we do not think Grounds 1(f) and 1(g) are reasonably arguable.

Summary on Ground 1

57.We are of the view that Ground 1 is, in substance, a repetition of the husband’s complaints raised below, which are rightly rejected by the judge in the Leave Decision. There is no suggestion that the judge has stated the law on apparent bias incorrectly. The judge considered the complaints raised by the husband and concluded that the objective, fair-minded and informed observer would not consider there was a real possibility that the judge was biased. We do not see any basis for the husband to contend that the judge has ignored those matters referred to in §4 of the husband’s statement in support of leave to appeal[21] or that the judge has erred in the exercise of his discretion. Ultimately, we do not think that the husband has made out a case of apparent bias justifying recusal based on his complaints, whether viewed individually or collectively.

Ground 2

58.Under Ground 2, the husband argues that the judge had failed to take into account two relevant considerations in refusing to recuse himself, namely that the fair minded and informed observer would think there is a real possibility of bias on the part of the judge in view of the facts of this case, and the fact that the husband has lost confidence in the judge would undermine the chance of success of the facilitative hearings in Child Dispute Resolution/Financial Dispute Resolution.

59.We are not persuaded by this submission.

60.As explained above, we have rejected Ground 1 because we do not believe that the fair minded and informed observer would find any real possibility of bias based on the husband’s complaints and the facts of this case. It follows from this that the argument based on the first consideration must be rejected.

61.For the same reason, we would reject the argument based on the second consideration. As stated in Axnoller Events Ltd v Brake [2021] EWHC 949 (Ch) at §52, apparent bias is not a question of discretion but of law. Either there is no apparent bias, in which case the judge cannot recuse himself, or there is, in which case the judge must do so. “It is like a light switch, either on or off.” We do not see why it is necessary or appropriate for the judge to recuse himself from any further participation in these proceedings in circumstances where the husband has not made out a case for apparent bias. If the judge should have concerns at a subsequent stage that his presence would somehow undermine the facilitative hearings, he could direct that such hearings be presided over by another judge, without causing any disruption to the proceedings or undue inconvenience to all.

62.For the above reasons, we do not think that Ground 2 is reasonably arguable.

Disposition of the Leave Summons

63.The husband has failed to satisfy the threshold for obtaining leave to appeal against the Decision. There is no basis to interfere with the judge’s exercise of discretion in refusing to recuse himself. Accordingly, we dismiss the Leave Summons.

64.Costs of this application should follow the event. We order the husband to pay the wife’s costs of this application.

The Stay Summons

65.Having dismissed the Leave Summons, the Stay Summons does not arise and falls to be dismissed. We order the husband to pay the wife’s costs of this summons.

Costs

66.We assess the costs awarded to the wife on both summonses summarily. We decline to grant a certificate for three counsel. There will be a certificate for two counsel only, for engaging Mr Pang SC and Ms Chow. Having considered the wife’s statement of costs for summary assessment, and taking a broad-brush approach, we allow the amount of $800,000 as her reasonable costs.

Miss Anita Yip SC and Mr Ken Chan, instructed by Withers, for the Respondent (Applicant)

Mr Robert Pang SC, Ms Theresa Chow and Mr Adrian Kwan, instructed by Ho & Ip, for the Petitioner (Respondent)