Yf v. Wmp

FCMC 1226 /2021

[2025] HKFC 155

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 1226 OF 2021

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RULING
(Recusal)

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1.This is the Ruling on the Petitioner wife’s application for my recusal.  She seeks an order that I shall be rescued from further involvement in these proceedings. 

2.This Ruling is already the 4^th Ruling given by me in these proceedings.  The first 3 Rulings are:

(1)  A Judgment dated 27 November 2024 (“the Judgment”) on  the respondent’s appeal against a master’s decision,

(2)  A Ruling dated 14 March 2025 on the petitioner’s application for leave to appeal against the Judgment (‘the Leave to Appeal Ruling”); and

(3)  A Ruling dated 31 July 2025 on the petitioner’s application for variation of the Costs Order Nisi made under the Judgment (“the Ruling on Variation of Costs Order Nisi”).

3.For ease of reference, I shall continue to refer to the petitioner as “the wife” and the respondent as “the husband”.

4.As I have already set out the background of the parties and the factual background to the Judgment, I do not propose to repeat the same here.  This Ruling has to be read together with the Judgment.  Suffice to say in this Ruling is that the wife was not happy with the Judgment by which I allowed the husband’s appeal against the master’s decision to have his 2 applications for children’s maintenance be struck out on the ground of his absence in the hearing.  

5.The wife’s ground for recusal, as set out in her affirmation dated 10 December 2024, is that,

“The judgment, in making highly damaging findings with no factual foundation, shows clear bias or apparent bias against the Petitioner. The Judge should recuse himself from hearing any further matter in these proceedings and the Petitioner so applies”.

6.At the hearing of 30 April 2025, the wife submits that she relies on both actual and apparent bias.

7.As a result of a development since the hearing, it has become unnecessary to deal with the merit of the wife’s application.  The development is that, by a joint letter dated 11 June 2025, both the wife and the husband applied to have applications for maintenance be withdrawn. The application was duly approved by Master Chak who granted a consent order on the same date.  Hence, there is no dispute between the parties now and the question of recusal has become academic and serves absolutely no purpose.  As a matter of fact, I was involved in this case only because I was the judge hearing master’s appeal.  I was not the docket judge nor in any way involved in the parties’ application for maintenance. A case in point is the Court of Appeal judgment in Brian Nicolas Gay v Yip Shut Yuen, CACV 47/2003 (date of judgment: 18 July 2003) in the context of an appeal. At [6] & [7], Anthony Rogers VP said,

6.  In this respect, I would refer to a decision of the House of Lords in the case of Ainsbury v Millington [1987] 1 WLR 379.  It is sufficient to read the headnote:

“It has always been a fundamental feature of the judicial system that the courts decide disputes between the parties before them and do not pronounce on abstract questions of law where there is no dispute to be resolved even though the question of law raised might be one of general importance the resolution of which may have been left in doubt by different decisions of the Court of Appeal. 

Where, therefore, a party had been refused an injunction requiring the other part to vacate a council house and by the time the case was called on for hearing before the Appeal Committee, the parties’ tenancy of the council house had been terminated. 

Held, that there would be no hearing on the merits and the appeal would be dismissed.”

7. In my view, that approach is the same approach as this court should take to appeals.  If the order sought on the appeal would be, by the time the appeal comes to be heard, purely academic and of no assistance to the parties, this court should not entertain those appeals.

8.Hence, for the reason that the wife’s application has become academic, it ought to be dismissed. 

9.Nevertheless, for the sake of completeness, I shall briefly deal with the merit of the wife’ application.

10.I do not propose to set out the relevant principles.  The Court of Appeal succinctly summarized the principles in Chau Siu Woon and Another v Cheung Shek Kong and Others, [2010] 3 HKLRD 49, (CACV 164/2007), see [8] – [13].

11.I acknowledge the wife was upset by the negative comments I made about her litigation conduct. Indeed, I can see all her subsequent applications were sprung from her discontents over these negative comments.  In particular, the wife was not happy with what I said at [40] & [41] of the Judgment which are set out below,

40. On this, I need to turn to the wife’s litigation conduct.    It is to be recalled that the wife undertook in the AR Order to pay for the children’s flights to the UK in July 2024: see [16] above.  The husband’s applications were taken out as early as on 19 March 2024.  It was however not until 3 days before the Husband’s Hearing Date that the wife took out her own application.  Her alleged knee injuries happened on 3 April 2024.  Her sick leave certificates issued by two Hong Kong medical practitioners (so she was in Hong Kong) and attached to her letter to Master Ho covered a period from 8 April 2024 to 12 April 2024 only. There was simply no reason why the wife had taken out her application and sought the vacation of the Husband’s Hearing Date at such a late stage.

41. Most importantly, it strikes me that she expressly requested the husband’s summonses to be adjourned to July 2024 when she knew full well that the husband would be away from Hong Kong.  The reason is simple: the children’s flights to the UK were paid by her.  I therefore agree with the husband that it was a deliberate attempt on the part of the wife to delay the proceedings.  When the wife made her request by way of her unilateral letter to Master Ho (a copy of it was not sent to the husband), it was incumbent upon her to give a full and frank disclosure of all the materials needed for the court to consider but she deliberately failed to do so.  I cannot help thinking this was a dishonest litigation conduct on the part of the wife; at the very least, it was a devious tactics for gaining unfair advantages over the husband.                 (emphasis added)

12.These negative comments alone could not constitute actual or apparent bias.  Even as of now, the wife has never given any explanation on why she chose to have applied for the hearing to be adjourned to a date that she knew well the husband was not able to make it.   As I said at [18] & [20] of the Ruling on Variation of Costs Order Nisi,

18. Therefore, the crucial question is: why would she have sought for the vacation of the Husband’s Hearing Date when she knew well that the husband would be away with the children on a trip to the UK on 11 July 2024?  It is significant to note that despite my clear observation set out above, nowhere in any of the wife’s affirmations, submissions or letters submitted to court subsequent to the Judgment have given any explanation on this.   In the circumstance, the only reasonable inference that can be drawn (which I did) is she did so for the purpose of delaying the proceedings.   If the wife had made the disclosure and if under this circumstance the Master still had acceded to her application (which I doubt very much if this would have been the case), I agree this would not be the wife’s responsibility, but, factually speaking, it was not the case.

19.     …

20. It is incorrect to say I absolved the responsibility of the husband.   I acknowledge the husband could have taken out his own application, say, by way of a summons in good time.  This, however, should be assessed in light of the reason why the Husband’s Hearing Date was vacated. The fallacy of the wife’s argument is that there was virtually no need for the husband to take the trouble of making his own application in the first place if the Husband’s Hearing Date had not been vacated at the instigation of the wife.                            (emphasis added)

13. Hence, there are undisputed evidence upon which I could properly draw inference on the wife’s litigation conduct and this finding has not been overturned.  Even if this has been overturn, this does not necessarily lead to the conclusion of bias, whether actual or apparent.  For the above reasons, I conclude it is not the case that a fair-minded and informed observer would say that there is a real possibility that I would not bring an impartial mind to these proceedings.  I do not see the wife’s application has any merit at all. 

14. For the above reasons, the wife’s application is dismissed.

15. As the husband did not participate in this application, the proper costs order is no order as to costs; and I so order.