Hong Kong Finance Equity Management Ltd v. Chen Mailin

HCA 64/2024

[2026] HKCFI 2377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 64 OF 2024

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D E C I S I O N

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1.This is an application for recusal made by the Plaintiff in the context of an appeal by the Defendant against a Master’s decision granting summary judgment to the Plaintiff. The appeal was fixed before me on 14 April 2026. At the beginning of the hearing, I heard submissions from the parties and refused the recusal application.

2.These are my oral reasons delivered at the hearing with minor modifications made for the sake of accuracy, further context and ease of reading. After refusing the recusal application, I proceeded to hear the case.  

3.Upon reviewing the papers, I ascertained that Mr Hui Chi Ming (“Mr Hui”) was an individual involved in this dispute for the Plaintiff. Yesterday, I drew the parties’ attention to the fact that I was previously instructed as counsel in HCA 1479/2009 on behalf of Mr Ng Chi Keung (“Mr Ng”). Mr Ng was the 2nd defendant in those proceedings, and he was sued by Mr Hui. The relevant application in I was instructed in resulted in a judgment of 10 March 2011 by Deputy High Court Judge Burrell. A copy of that judgment has been provided to the parties this morning.

4.As can be seen from the judgment, the context was an application by Mr Ng for fortification of an undertaking as to damages given by Mr Hui in support of a Mareva application. The dispute or difference between the parties at that time was fairly self-contained. Mr Hui’s counsel submitted that HK$2.5m would be more appropriate, when Mr Ng sought fortification for HK$5-6 million. In the end, Deputy High Court Judge Burrell made an order for HK$6 million. I have also informed the parties that I personally do not have any recollection of the case, and from my records, I had no other involvement in this action apart from my handling of the application in 2011.

5.The relevant principles on  apparent bias and recusal are well established. They are set out in the Guide to Judicial Conduct. The apparent bias test in particular is set out at paragraph 55: 

“A particular judge is disqualified from sitting if the circumstances are such as would lead a reasonable, fair-minded and well-informed observer to conclude that there is a real possibility that the judge would be biased.”

6.I have also made reference to paragraph 76: 

“Where a judge has, before appointment, acted as a lawyer for or against a person, one would expect this, by itself, would usually not result in a disqualification before appointment. Nor will the fact that a judge has, before appointment, publicly expressed views regarding an issue which he or she is now required to determine necessarily a ground for recusal. But everything does depend on the particular circumstances.”

7.Mr Li SC this morning has made a number of observations in support of the application to recuse, namely, first that HCA 1479/2009 was a seriously contentious matter and it went on for years and apparently it was only until I think 2023 that the judgment was handed down.

8.Secondly, Mr Ng had filed a judicial review in HCAL 27/2013 with respect to matters concerning Mr Hui and also very serious allegations made against him with respect to allegations only of dishonest misappropriation of Sino-Union shares.

9.Third, it was said that the substance of the action also concerned to some extent oral promises and agreements and it was said that that may have an impact or maybe relevant in the present case insofar as it might be suggested that there is a tendency for Mr Hui to make oral promises.

10.Fourth, my attention was drawn particular to a request made by the Defendant in these proceedings who lodged an objection against the hearing of the matter by Deputy High Court Judge Gary Lam. That objection was made by letter of 2 April 2026 and it was said that in light of his Lordship’s acting for Mr Hui in HCA 1479/2009 where judgment was given in 2023, the Defendant was concerned about the appearance of bias. It was said that these concerns might equally apply in the present case.  

11.Now, in terms of my own view of the matter is concerned, I have taken into account the submissions made by both parties, but I am satisfied that I do have the requisite impartiality to continue on to hear this case and I am also satisfied that the apparent bias test is not made out in present circumstances. The reasons for that include the fact that the proceedings or the application in which I was involved in was 15 years ago and the court has clearly indicated that it had no further involvement in these proceedings whatsoever apart from that application and otherwise actually does not have any recollection of anything else that took place in that action.

12.I have also taken into account the Guide to Judicial Conduct at paragraph 76 and also the importance of a judge being assigned to the case, to continue to hear the case unless there are cogent reasons to the contrary. It would not be in the best interests of the administration of justice for the court to readily accede to not hearing cases where it is of the view that there are actually no bias or impartiality concerns.

13.And insofar as the HCA 1479 matter is concerned and Deputy High Court Judge Gary Lam’s involvement in those proceedings, I do think that the case is quite different in terms of proximity in time and the level of involvement, as I understand it his Lordship was involved at trial, whereas I was involved in one very discrete and, if I may say so, minor interlocutory application of quite a straightforward nature as one might expect of junior counsel of that call at that time, which might explain why the court does not have any particular recollection about the case.

14.So for these reasons, I decide to continue to hear the case.

Mr Laurence Li, SC and Mr Alvin Cheung, instructed by M C A Lai Solicitors LLP, for the Plaintiff

Mr Christopher Chain, SC and Mr Jonathan Lee, instructed by C Y Tsang & Co, for the Defendant