Ycr also known as Cry v. Ysj Nee Sje

FCJA 2423/2018

[2025] HKFC 156

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION NO. 2423 OF 2018

----------------------------

BETWEEN

------------------------

------------------------------------------------------------

J U D G M E N T

( Leave to Appeal – Recusal

By paper disposal )

------------------------------------------------------------

1.This is the first applicant father’s (“F”) leave to appeal application against my dismissal of his recusal application on 5 June 2025 (“Recusal Application”). This application was dismissed in limine for reasons hereinafter set out.

2.W filed her submission on 13 June 2025 opposing the application.

3.Both parties act in person.

The Background

4.The second applicant mother (“M”) applied for relocation to Canada with the two children of the family. After a 3-day trial in August 2024, I delivered my judgment on 26 May 2025 (“Relocation Judgment”) granting leave for the relocation.

5.Two important points in the timeline are to be noted:

a. F wrote to Court for the trial transcript on 19 September 2024, which was after closing submissions had been filed. Due to an inadvertent oversight, this was not dealt with until February 2025 when he wrote for the second time. The trial transcript was called for and made available to F on 26 February 2025, with a note of apology for the delay.

b. In 24 February 2025, I sent a memo out to both parties that the original judgement delivery date will be extended to 26 May 2025.

6.After having been given access to the transcript, and knowing full well that the judgement would be delivered on 26 May 2025, H took out his recusal application on 6 May 2025.

The Recusal Application

7.F’s Recusal Application asks for the following:

1) That Her Honour Judge T Kwan recuse herself from presiding further over any aspect of Joint Application No. FCJA 2423 of 2018, including the 2^nd Applicant’s relocation application. This application is made on the grounds of apparent bias, detailed in the accompanying affidavit.

2) That a direction hearing be scheduled at the earliest possible date, during which Her Honour Judge T Kwan shall confirm whether she intends to recuse herself from this matter.

3) In the event that Her Honour Judge T Kwan declines to recuse herself, that the 1^st Applicant be granted immediate and full access to the official transcripts of all prior hearings related to this relocation matter, and that the 1^st Applicant be granted leave and sufficient time to amend or supplement his affidavit and the accompanying recusal letter after a reasonable period for review of the said transcripts.

4) That the delivery of any judgement or final decision regarding the 2^nd Applicant’s relocation application be stayed until this application for recusal has been fully adjudicated and resolved, to ensure the fairness and integrity of the judicial process. (my emphasis)

5) That the costs of this application be reserved.

(emphasis added)

The hearing of the Recusal Application

8.The hearing took place on 5 June 2025, this was after the handing down of the Relocation Judgment.

9.At the hearing, I asked F what he is recusing me from, then I asked him what other application was he intending to make. He said he would be appealing my Relocation Judgment, he was then told that an appeal will follow a different process.

10.I turned to M to ask if she intends to make any further application, she answered in the negative.

11.F was also told that his recusal does not have a retrospective effect. The relocation hearing was completed, and Judgment was due to be handed down in less than 3 weeks from when F took out the Recusal Application. Contrary to his intention, his Recusal Application does not prevent the Relocation Judgment from being handed down.

12.The decision on relocation brings certain finality to these proceedings. The parties settled their mutual ancillary relief claims in 2018, and Decree Absolute was pronounced on 21 February 2019. No financial proceeding is expected to ensue after relocation as it has been dealt with in the Relocation Judgment wherein M did ask for F to contribute to the children’s expenses if they relocate, and F’s proposal of his undertakings to pay the Children’s education expenses, which include, all ECAs, sporting opportunities, academic tutorials, counselling sessions and medical costs, were accepted by the Court in §228-229 of the Relocation Judgment.

13.If an appeal for the relocation is pursued, following proper procedure, I am only to deal with the leave application then; and if taken further, will no longer be heard by me.

14.As there is no hearing in the foreseeable future except for the intended appeal against the Relocation Judgment (which was only filed after that hearing on 9 June 2025), and with the underlying objectives of Order 1A of the Rules of High Court in mind, I saw no basis in directing exchange of evidence and a hearing on the recusal. F’s application was summarily dismissed with no order as to costs.

Legal principles on Leave to Appeal

15.Under Section 63A(2) of the District Court Ordinance, leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

16.The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF HCMP 288/2011. Even if this threshold requirement is met, the Court still has a discretion to refuse leave (Hong Kong Civil Procedure 2025, 59/2A/4).

17.The summary dismissal of the Recusal Application is a case management decision, and the law with regard to appealing against a case management decision is trite. On this I turn to the decision of Chu JA in the case of NPYJ v SMRC, [2020] HKCA 832, where she propounded the following principle:

“23. It is also well established that case management is pre-eminently within the province of the trial judge and the appellant court will only interfere in very exceptional circumstances: Cheung Yee-mong v So Kwok-yan [1996] 2 HKLR 48, 51. This Court has consistently held that an appellant faces a high hurdle in showing that the first instance judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that his order was irrational: see Lee Tak Yee v Chen Park Kuen [2001] 1 HKLRD 401; Kan Miu Wah v Aeroflot Russian International Airlines (unreported) CACV 142/2006; and Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887.”

F’s application for leave to appeal

18.It was unfortunately unhelpful that, despite F having cited 11 cases in his draft ground of appeal and submission, he has only produced two cases to me; nor did he cite the exact paragraphs from these judgements upon which he relies in his various statements of legal principles.

19.In his submission, other than asking for my Order of 5 June 2025 be set aside, F also asks for a “proper impartial adjudication of the recusal application before a different judge”. It bears notice that should there be a recusal application, it will be heard by me.

20.F has 7 grounds in his draft Grounds of Appeal.

Ground 1: Error in Law – Dismissal based solely on Judgment having been given

21.F cited the case of H (A Child) (Recusal) [2023] EWCA Civ 860 and say that this is the case where “the English Court of Appeal explicitly held that it is erroneous for a judge to dismiss a recusal application purely on the basis that the issues had previously been addressed or that judgment had been given”. In brief, the case concerned a husband seeking a recusal of a Circuit Judge in his interlocutory fact finding hearing involving a child, and where the Judge refused to recuse himself; the husband appealed and a High Court Judge allowed the appeal; when the wife appealed to the Court of Appeal, the latter upheld the Circuit Judge’s decision on recusal. F did not reference specifically where in the judgment he found the abovementioned principle, but from my reading, the dismissal by the circuit Judge of the husband’s recusal application was not due to issues previously addressed or that judgment had been given; nor was this “explicitly held” by the Court of Appeal. Furthermore, the clear distinctions to be drawn from that case are that (1) the Circuit Judge actually heard the argument on the recusal and made the decision not to recuse; and (2) the trial on issues regarding the child in question was not yet heard, and the recusal issue arose during an interlocutory hearing. The facts are clearly different from the case at hand.

22.F says that I have dismissed the application solely on the grounds that the judgment has been delivered (my emphasis). That was not true. I have specifically asked what other applications are forthcoming from both parties, and I made my decision taking into regard the need to consider proceedings economy and conscious that F has a right of appeal against my Relocation Judgment.

Ground 2: Failure to provide fair hearing or due process

23.F says I was wrong in making a summary dismissal at a direction hearing. As a matter of procedure, I am entitled to do this having regard to the circumstances above mentioned.

24.F also says I have turned down his request for transcripts from the CDR and PTR. This was correct, transcripts are not meant to be given out for every single hearing, and even lay persons are expected to take notes from their court hearing, SKK (HK) Co Ltd, SK Kaken Co Ltd v Tsui Po Hing Tsui Po Cheung [2022] HKCFI 619 at §9 refers, F was informed that he has to take his own hearing notes very early on in these proceedings. F also says I have ignored his ask for transcripts so as to amend his affidavit. Further to the above point on right to transcripts, and having dismissed his Recusal Application, it is unreasonable for F to be provided with more transcripts to amend his supporting affidavit to his Recusal Application.

Ground 3: Failure to apply the correct legal test for apparent bias

25.F says his application is based on “numerous documented instances of apparent bias throughout the proceedings”, and that there should be an objective test to be applied in assessing bias.

26.M is her opposition calls this the F’s “singular perspective on what he has experienced and what he deems ‘fair and unbiased.’”

27.In any event, there was actually no hearing on the recusal, the test to be applied was not engaged.

Ground 4: Procedural irregularity – Delivering Judgment prior to resolving recusal application

28.F complains that by delivering the Relocation Judgement on 26 May 2025 while his recusal application was scheduled to be heard on 5 June 2025, I have “committed a serious procedural irregularity”.

29.He also relies on the case of R, Mj v Oam HKFC 173, to say that:

“It is a well-established principle that recusal applications must be resolved before substantive judicial decisions, especially in sensitive family matters profoundly affecting children’s welfare ”

No year was provided in this citation, it should have read R, MJ v OAM also known as R, AO [2019] HKFC 173. This case has nothing to do with recusal application, and no such “well-established principle” was mentioned in that Judgment.

30.It is again clear from this ground of appeal that F is of the view that I should not deliver the Relocation Judgment because he applied for a recusal. He says that as M’s intended relocation is in 2026, “there was no urgency or welfare necessity to justify the sacrifice of proper procedure fairness”, citing the case of TG (A Child) EWCA Civ 5 (This should actually read [2013] EWCA Civ 5). Again, F did not cite exactly where in this judgment he extrapolates the above principle. This case was about a Judge’s refusal to allow the husband to adduce additional biomechanical evidence; the cases largely dealt with the Judge’s case management power regarding expert evidence, and the Court of Appeal upheld the initial Judge’s decision to disallow the admission of the evidence. This case does not involve recusal of a Judge. F is suggesting that I should have delayed handing down the Relocation Judgment to deal with his recusal application first; I do not accept this proposition, as his recusal would not have prevented me from delivering a judgment on a case I have heard.

Ground 5: Erroneous Assumption that Application was tactical or vexatious

31.This ground of appeal is best understood in repeating this ground in F’s words:

“During the brief directions hearing, when Judge Kwan asked me specifically what matters I sought her recusal from, I responded emotionally by indicating that I want her to recuse herself from adjudicating on any element of any case, including the relocation matter. I anticipate that Judge Kwan may interpret this broad statement as evidence of tactical judge-shopping; however, such an application would be entirely incorrect. My response was not calculated or tactical but rather an immediate emotional reaction stemming from profound distress and frustration caused by what I genuinely perceived as a highly biased, unjust, and profoundly damaging judgment, delivered prematurely and improperly while my recusal application was still pending. (my emphasis)

32.There was no assumption made by me, nor any discussion as to how I interpret his application. There could be no such assumption as it is not possible for, in his hope to prevent me from handing down the Relocation Judgment, to ask another Judge to re-hear the relocation application at that point of time. I do not accept this ground of appeal.

Ground 6: Failure to provide adequate reasons for dismissal

33.F says that I have provided insufficient reasons for dismissing the Recusal Application, he admitted that I did state that “recusal does not apply to a case that has been heard”. He says the lack of reasons prevent meaningful appellate review.

34.That was the reason I did give at the hearing when it was apparent that he expected the recusal to apply to the relocation hearing. He was duly given a chance to explain the basis of his application and what other application was intended. Given the answers I received, I am of the view that the reason I gave was adequate, and this ground of appeal is not accepted.

Ground 7: Fundamental breach of the right to an impartial tribunal

35.On this point, F quotes article 10 of the Hong Kong Bill of Rights.

36.In this case, it was my case management decision that F’s application was to be dismissed in limine, it was my assessment that to proceed with a hearing on recusal with no other hearing or trial in the horizon to be conducted by me (except for his then intended appeal against my Relocation Judgment), would be an unjustifiable use of Court resources. This ground of appeal is also not accepted.

Conclusion

37.F has decided to apply for my recusal 9 months after the hearing, and more than 2 months after he obtained the transcript.

38.It is apparent to me that F is misconceived on his Recusal Application thinking that it would prevent me from handing down the Relocation Judgment.

39.There were other points raised by F in his written submissions. I do not intend to go through every single point here. Generally speaking, I am not of the view that the F has identified in his draft Grounds of Appeal or his submission any real prospect of success on appeal; nor any other reason in the interests of justice why leave should be granted.

40.I am of the view that my decision to summarily dismiss the Recusal Application was a proper and reasonable exercise of my case management discretion; and his leave to appeal application is therefore dismissed.

Costs

41.I see no reason why costs should not follow the event, and accordingly make the Order that the Costs of this Leave to Appeal application be to the M. This to be Costs Order nisi to be made absolute 14 days hereof.

1^st Applicant and 2^nd Applicant: Both acting in person