Li Xiao Yi v. Tang Chung Wah (also known as Alan Chung Wah Tang)

HCMP 406/2025

[2025] HKCFI 5754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 406 OF 2025

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D E C I S I O N

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Introduction

1.There are three summonses before the Court.

2.The first is a summons filed on 19 September 2025 by the Defendant for me to recuse myself from hearing the substantive hearing of the Originating Summons (“Contempt Proceeding”), which was issued by the Plaintiff on 14 March 2025 for an order that the Defendant be committed for contempt (“Recusal Application”).  The second is a summons filed on 6 October 2025 by the Plaintiff for leave to cross-examine the Defendant on his affirmation at the Contempt Proceeding (“Cross-Examination Summons”).  The third is another summons filed on 6 October 2025 by the Plaintiff for a determination as to whether the Defendant should be entitled to pursue the Recusal Application in the absence of a supporting affirmation (“Entitlement Summons”).

3.At the hearing on 3 November 2025 (“Hearing”), I dismissed the Recusal Application.  These are my reasons for doing so. I will also deal with the Cross-Examination Summons and the Entitlement Summons.

Procedural Timeline

4.This case concerns a number of parallel proceedings.  In the interest of clarity, I outline below the procedural timeline of these proceedings.

Original Action (HCA 1492 of 2018) and its Appeal (CACV 80 of 2025)

5.Originally, there was an action by NHD Systems (Asia) Limited (in liquidation) (“Company”) against the Plaintiff for breach of a loan agreement (“Action”).  The trial was held on 14, 15 and 17 October 2024.  At trial, the Defendant, who was a liquidator of the Company between October 2000 and November 2001, and from June 2016 onwards, gave evidence on behalf of the Company.

6.Following the close of the Company’s case, the Plaintiff filed a submission of no case to answer (“No Case Submission”) on 16 October 2025 to which the Company replied on 17 October 2025.  I accepted the Plaintiff’s submission that the Company’s claim had clearly not been established.  I dismissed the Action.

7.Throughout the trial, I expressed concerns that the Defendant was prevaricating and was, at one point, giving dishonest evidence.  On at least two occasions, I formally warned the Defendant that I was concerned that he was giving dishonest evidence.  At the end of the Defendant’s evidence on 15 October 2025, I informed the Parties that I would be requesting transcripts of the Defendant’s evidence (“Transcripts”) and inviting the Parties to make further submissions to ensure that any comments I made concerning the Defendant’s evidence was based on an accurate record of what he had said.

8.The Transcripts became available on 6 November 2024.  In turn, the Parties filed their revised submissions on 29 November 2024 and 27 December 2024 respectively.  On 21 January 2025, I handed down my Reasons for Judgment (“Reasons”).

9.By a Notice of Appeal dated 18 February 2025, the Company appealed against my Judgment.  The Notice of Appeal was filed out of time. In her decision dated 16 April 2025, Kwan VP ordered, inter alia, that the proceedings be stayed pending the Court of First Instance’s determination of the Company’s application for extension of time to appeal.  The said application is set down to be heard by me on 10 February 2026.

Contempt Proceeding (HCMP 406 of 2025)

10.On 26 February 2025, pursuant to Order 52, rule 2(2) of the Rules of the High Court, Cap. 4A (“RHC”), the Plaintiff sought leave to apply for an order of committal against the Defendant in light of his alleged dishonest conduct throughout the trial.  Leave was granted by me on 3 March 2025.

11.On 14 March 2025, the Plaintiff took out an Originating Summons.  The Contempt Proceeding has been adjourned a number of times. It is now adjourned to 18 to 20 May 2026.

Recusal Application, Cross-Examination Summons and Entitlement Summons

12.On 19 September 2025, the Defendant applied for an order, inter alia, that I do recuse myself from presiding over the Contempt Proceeding.

13.On 6 October 2025, the Plaintiff applied (1) for leave to cross-examine the Defendant on his affirmation at the Contempt Proceeding and (2) for an order, inter alia, that there be a determination as to whether the Defendant should be entitled to pursue the Recusal Application in the absence of a supporting affirmation.

Recusal Application

Applicable Principles

14.The reason for recusal is commonly bias.  Bias may be in the form of actual bias or apparent bias.  The applicable 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.”[1]

15.This notional observer has a number of qualities.  “He is not unduly sensitive or suspicious.  He takes a balanced approach to any information he is given.  He takes the trouble to inform himself on all matters that are relevant.  He appreciates that the context forms an important part of the material which he must consider before passing judgment.”[2]

16.In the context of recusal, “bias” means an attitude of mind that prevents the judge from making an objective determination of the issues before the Court[3]. In respect of a witness, bias refers to a prejudice against that witness for reasons unconnected with his credibility or his conduct of the case[4].

17.Recently, in Cosimo Borrelli[5], Mimmie Chan J was also asked to recuse herself from presiding over a contempt proceeding, which was commenced against the defendants for breach of a Mareva injunction and ancillary disclosure orders.  The defendants complained[6], firstly, that the learned judge had handed down a decision which prejudged the “crucial issue” to be determined at the contempt proceeding and that there was a real possibility of bias; and, secondly, that there was a reason for the learned judge to recuse herself after having granted leave to commence the contempt proceeding.

18.Both complaints were rejected. In relation to the first complaint, Mimmie Chan J held that her previous decision did not, as a matter of fact, resolve issues in respect of the alleged contempt or the alleged contemnors’ knowing and deliberate assistance of another’s breach of a court order, which were due to be determined at the contempt proceeding.  For present purposes, the observations made by Mimmie Chan J in rejecting the second complaint are the more instructive.

(1)  The person being observed is a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, immaterial and the prejudicial[7]: [14].

“The significance of the judicial oath, which […] imposes on judges a duty to ‘safeguard the law and administer justice without fear or favour, self-interest or deceit’, is not to be overlooked: it is an important bulwark of judicial impartiality. It expresses the ‘general rule of the common law … that judges must apply the law as they understand it to the facts of individual cases as they find them without fear or favour, affection or ill-will, that is, without partiality or prejudice’. The fair-minded and informed observer will be aware of the oath and that judges will generally ‘try to live up to the high standard which it imposes’: see Davidson v Scottish Ministers (No 2) [2004] HRLR 34, [18].”[8]

(2)  It is not infrequent for a judge to form or express a view as to the merits of a case, the credibility of a witness or the veracity of the witness’ evidence.  As submitted by Mr Man in the present case, such indication is good judicial practice in the sense that it can save time and costs, and that the party to whom this indication is adverse can, where appropriate, address it. Further, it is not infrequent for a judge, who had earlier formed or expressed such views, to continue to be involved in the litigation.  That the judge has to bear in mind his own observations and findings from a prior hearing when deciding on a subsequent matter in the same litigation is part and parcel of his judicial assessment of the litigation before him[9]. This is not prejudging: [16].

(3)  It cannot be assumed that, having heard one matter, the judge would approach the case with a closed mind at a subsequent hearing.  A central feature of the adversarial system is that  judges may change their minds after hearing persuasive submissions or considering clear and cogent evidence to the contrary: [18].

“It is not only judges who in various states of affairs may be invited – they may invite themselves – to change their minds. Absent special circumstances a readiness to change one’s mind upon some issue, whether upon new information or simply on further reflection, and to change it from a previously declared position, is a capacity possessed by anyone prepared and able to engage with the issue on a reasonable and intelligent basis. It is surely a commonplace of all the professions, indeed of the experience of all thinking men and women.” [10]

(4)  Accordingly, there is no justification for expecting that judges recuse themselves from a subsequent hearing by reason only of their adverse findings in respect of a particular party or witness on a previous occasion: [17], [18].

“The mere fact that a judge has decided applications or issues in the past adversely to a litigant is not generally a reason for that judge to recuse himself at further hearings: if that were not the case, the same judge could not make two successive interim decisions in the case without risking accusation of bias. It would make it impossible for there to be a designated judge assigned to the hearing of complex cases with multiple interim applications. The fair-minded and informed observer does not assume that because a judge has taken an adverse view of a previous application or applications, that he or she will have pre-judged, or will not deal fairly with, all future applications by the same applicant.”[11]

19.It is incumbent on the party seeking recusal to articulate the logical connection between the conduct giving rise to the apprehension of apparent bias and the possibility of departure from impartial decision-making[12]. In terms of standard of proof, there must be substantial evidence supporting the alleged apparent bias[13].

20.Where it is alleged that a judge has prejudged issues, a useful way to approach the question of apparent bias is to ask “whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not brought or will not bring an impartial mind to bear on the adjudication of the case, that is, a mind open to persuasion by the evidence and the submissions of counsel”[14].  The litmus test is whether there is an indication of a closed mind. In this regard, “[t]he reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience.  It must be assumed that [judges] can disabuse their minds of any irrelevant personal beliefs or predispositions” [15].  For this reason, a finding of pre-judgment has been rare[16].

21.When resolving recusal applications, one takes a binary approach.  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.”[17]  As cautioned by the Court of Final Appeal in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd[18], “[j]udges must be wary of unjustified applications for their recusal motivated by tactical or forum-shopping considerations.  By its very nature, it is generally in quite exceptional cases that recusal is called for”.

The Defendant’s Recusal Application

22.On 30 September 2025, the Defendant filed an affirmation in support of the Recusal Application on the basis of apparent, as opposed to actual, bias.  Three grounds of recusal were raised.  First, it is submitted that since the Plaintiff’s application for the Contempt Proceeding relied entirely on my Reasons, I will essentially be required to determine at the Contempt Proceeding what I have already decided in the Action.  Secondly, the Defendant submitted that [25] to [31] of my Reasons closely resemble [30] to [32] of the Plaintiff’s revised No Case Submissions.  On this basis, the Defendant argued that a fair-minded and informed observer could hardly be assured that I had been willing to apply my own independent intellect to the issues in the Action and, a fortiori, would be willing to apply my own independent intellect at the Contempt Proceeding which relies, the Defendant claimed, exclusively on my Reasons.  Thirdly, the Defendant complained that a significant proportion of the Reasons were dedicated to criticising him and his conduct during trial, when the primary issue should have been the Plaintiff’s No Case Submissions.  The Defendant claimed that such disproportionate criticisms would lead a fair-minded and informed observer to conclude that I had demonstrated apparent bias against the Defendant.

Ground 1 – Prejudging

23.The first ground of recusal raised by the Defendant is unsustainable.  In the Action, I decided that the Company had not established a prima facie case that there was a loan advanced by the Company to the Plaintiff and that, in any event, its evidence had failed to prove its case on the balance of probabilities[19].  Additionally, I held that the Defendant, as the liquidator of the Company and an officer of the Court, had breached his disclosure obligations[20]. I also held that the Defendant had given false evidence on affirmation and in Court on numerous occasions[21]. By the Contempt Proceeding, I am asked by the Plaintiff to find that the Defendant has committed the criminal contempt of perjury in his deliberate giving of false evidence on affirmation and in Court.

24.What I will be determining at the Contempt Proceeding is distinct from my finding in the Action that the Defendant was a dishonest witness.

(1)  To prove that the Defendant has committed the criminal contempt of perjury, the Plaintiff must prove beyond reasonable doubt[22] (i) the falsity of the statement, (ii) that the statement has, or if persisted in would be likely to have, interfered with the course of justice in some material respects; and (iii) that at the time it was made, the maker of the statement had no honest belief in the truth of the statement and knew of its likelihood to interfere with the course of justice.

(2)  Whereas criminal contempt must be proved to the requisite criminal standard[23], i.e. beyond reasonable doubt, my findings in the Action were made with reference only to the civil standard, i.e. on the balance of probabilities.  Given the quasi-criminal nature of contempt proceedings, any genuine doubt must be resolved in the Defendant’s favour[24].

(3)  In any event, my finding in the Action that the Defendant was a dishonest witness is relevant only to establishing the first and the third elements of the criminal contempt of perjury.  For the purposes of the Contempt Proceeding, I will have to consider separately whether the false statement made by the Defendant has or would be likely to have interfered with the course of justice in some material respects.

25.In passing, I note the Defendant’s latest position as advanced by Mr Chu at the Hearing.  First, the Defendant argued that I have demonstrated apparent, as opposed to actual, bias against the Defendant by forming such strong opinions of the Defendant during trial.  This is allegedly evidenced in (1) my suggestion that the Plaintiff could make a submission of no case to answer and (2) my enquiry with Mr Man as to whether the Court could, in certain circumstances, initiate contempt proceedings.  Secondly, an objective observer would think it is “better” not to have the same judge hearing the contempt proceeding after having heard the trial at which the contempt was allegedly committed.

26.Regarding my suggestion that the Plaintiff could make a submission of no case to answer, Mr Chu understood such suggestion to have been made “at the very early stage of the proceeding”, and that it would be “a bit unusual” to make a submission of no case to answer at that stage.  I disagree. First, my suggestion was made at the end of the Defendant’s evidence, which was the only oral evidence relied on by the Company. My suggestion was not made “at the very early stage of the proceeding”.  Secondly, Mr Chu rightly retracted his complaint that I had, of my own volition, suggested to the Plaintiff that they could make a submission of no case to answer.  As accepted by Mr Chu at the Hearing, the Court is entitled to make comments throughout the trial in order to, as one would expect, facilitate the trial process and direct the parties to focus only on the disputed issues.

27.Regarding my alleged enquiry with Mr Man, the subject of contempt proceeding was raised because the Plaintiff asked me “to lay bare for posterity the conduct of Mr Tang” by reciting, inter alia, a miscellany of lies that he submitted the Defendant (Mr Tang) had allegedly told on affirmation and in Court.  Accordingly, Mr Man and I had an exchange to explore the possible actions that could be taken against the Defendant.  When Mr Man submitted that the Plaintiff potentially had standing to bring a contempt proceeding against the Defendant, I indicated that I had not given any thought to the idea of committing the Defendant for contempt.  As such, I invited submissions from Mr Man as to whether the Court could, of its own volition, commence contempt proceedings on the basis that it is appalled by a witness’ lack of veracity. In fairness to the Defendant, I invited Mr Chu to make further submissions.  However, Mr Chu stated that he did not wish to supplement his written submissions save to submit that there was no destruction of evidence which, as I then indicated, was entirely different to my earlier exchange with Mr Man.

28.As to Mr Chu’s contention that it is “better” for the judge, who has previously heard the trial at which the contempt was allegedly committed, not to hear the contempt proceeding, this is inconsistent with the authorities.  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[25].

Ground 2 – Substantial Similarity between the Reasons and the Plaintiff’s Revised No Case Submissions

29.It is alleged that [25] to [31] of my Reasons were substantially similar to [30] to [32] of the Plaintiff’s revised No Case Submissions.  This is correct.  The reason for this is as follows.

30.Mr Chu’s submissions dealt very sketchily with the complaints made by Mr Man about the Defendant’s evidence.

(1)  In his 1^st round of submissions dated 16 October 2024, the Plaintiff explained in some detail the ways in which the Defendant was said to have lied on affirmation.  The Company did not respond to any of the Plaintiff’s accusations in its 1^st round of reply submissions dated 17 October 2024.

(2)  Once the Transcripts became available on 13 November 2024, I caused copies of the Transcripts to be sent to the Parties so that they could, where appropriate, amend their previous submissions.  The Plaintiff submitted his 2^nd round of submissions on 29 November 2024.  The Company had 28 days to respond and revise its 2^nd round of reply submissions by 27 December 2024.  Still, the Company did not respond to any of the Plaintiff’s accusations other than for the submission that “[t]he insufficient discovery on the case does not automatically go to dishonesty or contempt sought to be advanced by D’s Contempt Submissions”.

(3)  Accordingly, by the time I was writing the Reasons to be handed down on 21 January 2025, I had before me only the Plaintiff’s submissions on the Defendant’s alleged dishonesty, which were supported by references to the then available Transcripts.  The Defendant had the opportunity to address the submissions in as much detail as he thought necessary if he considered them wrong.  He chose not to do so.

31.My Reasons are divided into two distinct parts.  The first addresses the Plaintiff’s No Case Submission and ends with me dismissing the Action.  Mr Chu acknowledged that this was entirely original work.  The second addresses the Defendant’s conduct and evidence.  It is based on the Plaintiff’s written submissions which, as I have explained, the Defendant chose not to take detailed issue with.  The suggestion that this demonstrates that I was not willing to bring independent consideration to the issues in the Action is disingenuous.

32.Whilst I have expressed disapproval of the Defendant’s conduct, “[a]n 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”[26].  Mr Chu has advanced no reason for thinking that a fair-minded and informed observer would think I have a closed mind.

33.In his third ground of recusal, the Defendant argued that there had been an excessive focus on his evidence in my Reasons.  Such disproportionate criticisms, the Defendant claimed, would lead a fair-minded and informed observer to conclude that I had demonstrated apparent bias against the Defendant.

34.As the Company’s claim had clearly not been established, the Action was readily disposed of.  Therefore, at the outset of my Reasons[27], I stated that “[m]ost of it concerns the conduct of the case by Mr Tang, his evidence in his affirmations, witness statements and in cross-examination, the duties of a liquidator and more generally the importance of witnesses taking their obligation to give honest evidence seriously and the damage done to the integrity of the trial process if witnesses do not do so”.  After giving my Reasons for dismissing the Action in the first 14 paragraphs, I dedicated around 20 paragraphs to discuss the evidence of the Defendant, as a liquidator and an officer of the Court, in order to emphasise the standards of integrity that the Court expects from its officers and the ways in which the Defendant’s conduct had fallen short of those standards.  Authority is cited for the Court doing so.  Mr Chu did not submit during the trial or at the Hearing that it was wrong for the Court to express the concerns recorded in the Reasons if the Court considered that it was appropriate.  This being the case the criticism is arid.

Cross-Examination Summons

35.The applicable principles, which guide the Court in determining an application to cross-examine a defendant on his affirmation evidence at contempt proceeding commenced by originating summons, are not controversial.

(1)  Order 28, rule 4(4) of the RHC[28] confers wide powers on the Court to give directions as to the filing of evidence and as to the attendance of deponents for cross-examination in an action commenced by way of an originating summons.

(2)  Order 38, rule 2(3) of the RHC[29] confers powers on the Court to grant leave to any party to cross-examine a deponent on affidavits in contempt proceedings.  “Only very exceptionally should a judge refuse an application to cross-examine, e.g. where cross-examination would be for a collateral purpose.”[30]

36.At the Hearing, the Cross-Examination Summons was no longer contentious.  Mr Man accepted on behalf of the Plaintiff that the Defendant may make an election to testify in the Contempt Proceeding, but may not be compelled to do so.  As such, the Parties agreed that insofar as the Defendant wishes to adduce evidence, he will be available for cross-examination.

Entitlement Summons

37.In his affirmation filed in support of the Company’s application for leave to appeal against my Reasons out of time dated 29 April 2025, the Defendant indicated his intention to apply for me to recuse myself.

38.In early September 2025, the Plaintiff wrote to the Defendant urging the latter to take out the Recusal Application as soon as possible, so that the matter could be dealt with expeditiously and that this Hearing (which was originally fixed for the hearing of the Originating Summons) could be used to dispose of the Recusal Application.  On 19 September 2025, the Defendant took out the Recusal Application without any supporting affirmation.

39.On 22 September 2025, the Plaintiff put on record that the Recusal Application was not supported by any affirmation.  The Plaintiff also informed the Defendant that he would proceed to apply for a direction as to whether the Defendant should be debarred from pursuing any recusal application, namely the Entitlement Summons.  On 25 September 2025, the Plaintiff wrote to the Court asking for its proposed Entitlement Summons to be listed on 3 November 2025. This was approved on 3 October 2025 and the Entitlement Summons was subsequently filed on 6 October 2025. On 30 September 2025, the Defendant filed his affirmation in support of the Recusal Application.  In the circumstances, the Entitlement Summons is no longer pursued by the Plaintiff save as to costs.

40.By taking out the Entitlement Summons, the Plaintiff has achieved what he sought to achieve, namely an affirmation filed by the Defendant in support of his Recusal Application.  Therefore, the Plaintiff is the effective winner and should be entitled to his costs[31].

41.Further, taking a broadbrush approach, I accept that the Entitlement Summons was necessitated by the Defendant’s failure to file a supporting affirmation in the first place.  It should have been obvious to the Defendant and his legal team that a recusal application should be supported by an affirmation.

Disposition

42.I will make an order that:

(1)  The Plaintiff do have leave to cross-examine the Defendant on his affirmation at the substantive hearing of the Originating Summons, in the event that the Defendant elects to testify;

(2)  There be a costs order nisi that the Defendant pays the Plaintiff the costs of and occasioned by the Recusal Application forthwith;

(3)  There be a costs order nisi that the costs of the Cross-Examination Summons be in the cause of the Originating Summons;

(4)  There be a costs order nisi that the Defendant pays the Plaintiff the costs of and occasioned by the Entitlement Summons forthwith.