H, Rs v. X, Y

FCMC 6583 / 2024

[2026] HKFC 80

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NO. 6583 OF 2024

(Formerly No. 6733 OF 2023)

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BETWEEN

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J U D G M E N T
( Recusal )

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1.By the summons dated 10 February 2026 issued by the Respondent (“Wife”) (“Recusal Summons”), she seeks an order to recuse myself from participating in these proceedings, and to vacate all hearings pending the determination of this application.

2.The trial of the ancillary relief and the preliminary issue proceedings has been fixed for 8 days commencing on 17 June 2026. It is trite that trial is a milestone date which cannot be removed save in very exceptional circumstances.

3.The salient facts of the case have been set out in §§ 1 to 15 of My Decision (Costs and Discovery) handed down on 12 October 2023[1] and §§ 2 to 6 of the Judgment (Discharge of Undertaking) handed down on19 June 2025[2]. I am not prepared to repeat the same here.

4.It is noteworthy that I dismissed the Wife’s application for disclosure of documents under rule 121 MCR pursuant to my judgment handed down on 2 July 2025[3].

5.I was also informed by Mr Kwan, counsel for the Petitioner (“Husband”) in his submissions that on 24 March 2026, the Wife also commenced proceedings in the Court of First Instance under HCA492/2026 against the Husband and on the following day, she took out a summons in the Court of First Instance to, inter alia, direct the release of HK10 million from an account held by her. This summons was heard by Madam Justice Au Yeung and dismissed on 31 March 2026 in favour of the Husband with indemnity costs against the Wife.

6.Turning back to the Recusal Summons, it is just one of the many interlocutory applications brought by the Wife in these family proceedings recently, such as:

i. her Summons of 12 February 2026 (heard by me on 11 March 2026) to “amend the Summons dated 8 October 2025, request the Court reconsider the verbal order on 6 February 2026 and …”.

ii. her Summons of 12 February 2026 (also heard by me on 11 March 2026) to “produce, and disclose the pleadings and documents as set out in Schedule A to the High Court” in her contemplated actions against the Petitioner for his tortious conduct…….” under rule 121 MCR (“Wife’s r121 Summons”).

iii. her Summons of 25 February 2026 for leave to appeal “against the Order and Decision of His Honour Judge S. Lo dated 16 February 2026[4]”.

iv. her Summons of 9 March 2026 for amendment of the Wife’s r121 Summons (heard by me at the PTR on 16 April 2026).

v. her Summons of 17 March 2026 for stay of proceedings (also heard by me at the PTR on 16 April 2026).

vi. her Summons of 17 March 2026 for MPS and litigation fundings (also heard by me at the PTR on 16 April 2026).

7.Further, the Wife took out another Summons of 13 March 2026 for leave to appeal against the judgment of DDJ Jeffrey Li handed down on 4 March 2026[5] dismissing her application to transfer these proceedings to the Court of First Instance.

General Principles on Recusal

8.Mr Kwan for the Husband rightly submits the applicable legal principles on recusal as follows.

9.First, a decision by a Judge not to recuse himself is sometimes said to be an exercise of discretion: WSSA v SYH [2024] 4 HKLRD 325, §22. But where the ground of recusal is apparent bias, the Court’s discretion (if it may be so described) is guided primarily by the proper application of legal principles to the facts of each case. Ultimately, there are only two possible outcomes:

(1) Either there is no apparent bias, “in which the judge cannot recuse himself”; or

(2) There is apparent bias, obviously “in which case the judge must [recuse himself]”: WSSA, §61.

10.In WSSA, §61, Kwan VP metaphorically compared the Court’s task to that of a “light switch”, being “either on or off”. There is no room for the Court to recuse itself if it finds against the presence of apparent bias. The “light switch” approach is supported by a plethora of modern English cases, which will be dealt with in substantive argument. Recusal without a finding of apparent bias would compromise the justice system by encouraging forum-shopping litigants to start “criticising all the judges that they did not want to hear their cases”.[6]

11.Secondly, the test for apparent bias requires the Court to ask:

(1) What are all the circumstances which have a bearing on the suggestion that the Judge was biased.

(2) Would those aforesaid circumstances lead a fair-minded and informed observer to conclude that there was a real possibility / real danger (the two being the same) that the Judge was biased: Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd [2014] 3 HKLRD 375, §50; WSSA, §19.

12.Thirdly, there are many decisions on what a ‘fair-minded and informed observer’ (“FMIO”) is expected to perceive. In short —

(1) The FMIO is not the parties themselves, but a reasonable and fair-minded bystander. He is objective, dispassionate, and is “neither complacent nor unduly sensitive or suspicious”. He does not come to hasty conclusions but reserves judgment on every point until fully understanding both sides of the argument: Falcon Private Bank (CA), §52; WSSA, §21.

(2) The FMIO knows that fairness requires that the judge in question must be, and must be seen to be, unbiased. The FMIO is not a lawyer, but:

(a) is not wholly uninformed and uninstructed about the law in general or the issues to be decided.

(b) has sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.

(c) is taken to know that occasional departures from appropriate standards of behaviour and isolated episodes of temper by a judge are nothing more than “indications of ordinary human frailty”. He will know that judges may sometimes say or do things that they might later wish they had not, yet this does not necessarily disqualify them from continuing to exercise their powers.

(d) is taken to know, at least in a general way, that the judge may adopt active efforts to confine proceedings within appropriate limits to ensure time is not wasted.

(e) understands that the judge has sworn an oath to do justice, and will do so with integrity, without fear or favour, self-interest, or deceit: Falcon Private Bank (CA), §§52, 54, 58; WSSA, §21.

13.Fourthly, ‘bias’ carries a particular legal meaning:

(1) Bias does not arise simply by showing that there is tension or hostility between parties and the Judge. The fact that the Judge had made adverse comments or had expressed preconceived views about the merits of any issues is also not an inherent indicator of bias: Falcon Private Bank (CA), §53.

(2) Bias means prejudice against one party or his case “for reasons unconnected to the merits”. What needs to be seen is an “unwillingness to be persuaded of a factual proposition whatever the evidence may be”: WSSA, §20.

14.Fifthly, it is generally “quite exceptional” that recusal is truly justified. Courts “must be wary” of applications which are motivated either by tactical or forum-shopping considerations: Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281, §38.

Discussion

15.In my view, the Recusal Summons is a tactical abuse of process. It cannot be ignored that since 2024, the Wife has relentlessly pursued complaints against the former legal representatives of both parties, including but not limited to Mr Bernard Man SC, Ms Anita Yip SC and other lawyers. She further lodged her complaints against DDJ GT Lung to the Secretariat for Complaints against judicial conduct.

16.More importantly, this application has come at the eleventh hour before trial which will be heard in June 2026. I consider that she is simply deploying the delaying tactic in the hope that the trial will be vacated.

17.According to the Wife’s 33^rd Affirmation, the Recusal Summons is grounded on an alleged appearance of bias, manifested by lack of impartiality and judicial conduct of mine undermining her right to a fair trial.

18.In my opinion, the Wife has failed to particularise the words or conduct giving rise to an alleged apprehension of apparent bias. It is incumbent on a party seeking a recusal to articulate with a degree of logical connection the acts giving rise to the apprehension of bias and the possibility of impartial decision-making: Falcon Private Bank (CA), §55. No doubt, she has clearly not done so. In short, her accusations of apparent bias raised are imprecise and vague.

19.For instance, in §2 of her 33^rd Affirmation, she asserted that I ceased being an independent arbiter by giving the Husband’s counsel “excessive time during the hearings”. At most, the Wife could only identify one hearing on 6 February 2026, where the Husband’s counsel was asked by me to address questions on the presentation of information in an older Agreed Chronology of Events / Joint Schedule of Agreed and Disputed Assets. There is no evidence the Husband was given manifestly more time in other hearings. In any event, an FMIO would appreciate that this is not a meaningful metric for determining whether a party has had a fair opportunity to present his / her case.

20.In §§4, 5, 14 and 15 of her 33^rd Affirmation, the Wife further accused me of adopting a “hostile attitude”, appearing “confused”, “yelling” at her, and displaying an “identifiable pattern of patronizing or browbeating”. As explained in Re Li Xiaoming[7], contentions of such nature are “wholly inadequate”. One needs to give specifics on “how the judicial officer would be biased towards a particular party or particular issue, or what that bias would be”. On top of that, there must also be a “logical connection between the conduct giving rise to the apprehension of bias, and the possibility of departure from impartial decision making”. I consider that the Wife has failed in both regards.

21.Another justification for the Recusal Summons alleged by the Wife is her dissatisfaction with how I ruled on certain applications and / or her belief that I may have misunderstood certain facts and legal principles. These are not good reasons to seek a recusal. The proper redress is to appeal the merits of any (allegedly) impugned decision rather than launch into misconceived assertions of apparent bias. Indeed, the Wife did take out an application for leave to appeal against the Order and Decision made by me on 6 February 2026.

22.It also appears that most of the Wife’s complaints involve apprehensions of bias from hearings before me that took place between 12 September 2024 to 28 May 2025. I consider that it is now far too late to bring these to the table. In Re Li Xiaoming[8], a six-month delay in seeking a recusal (see §§9-14) was enough for the Court of Appeal to conclude that the belated assertion of apparent bias was a tactical abuse of process (§§16-20). At §15, Kwan VP asserted:

“It is well-established that if a litigant “wishes to take any point on the qualification of the trial court it should be taken timeously as a plea in bar of trial. If such a point is not taken, the omission to do so will be taken to show an intention to abandon or waive the point unless circumstances show that it was not intended to abandon or waive it or that the omission resulted from ignorance or misapprehension which provided a reasonable explanation of the failure to take it”” [Emphasis supplied]

23.The Wife also suggested at §17 of her 2^nd Skeleton submissions that if I decline to grant relief of, inter alia, HK$10m as MPS to her, she “will have no choice but to continue [her] recusal application against [me] and to report this unlawful conduct to the relevant authorities”. An FMIO would perceive these submissions to be vulgar, and potentially even threatening.

24.Even if I may make errors in law, that in itself is not an indicator of bias.  In GM-SA aka DG, M-S v DDPJ[9], the Court of Appeal found, at §16:

“The fact that the Judge expressed erroneous views on the aforesaid issues at an interlocutory stage does not mean that he will not bring an impartial mind to bear on the adjudication of those issues at the trial …, or that he will not be open to persuasion by the evidence or the submissions of counsel.” [Emphasis supplied]

Conclusion

25.Viewed holistically, there is really no basis to say that an FMIO would reasonably apprehend bias, whether by way of “prejudging” or otherwise. The test of “reasonable apprehension” for finding an appearance of bias is not satisfied. Most of the Wife’s complaints are taken entirely out of context. As said in §12 of GM-SA, the refusal by a judge to recuse himself from hearing a case is an exercise of discretion. In the circumstances, I see no reason to exercise my discretion to recuse myself.

26.The Recusal Summons must be dismissed with costs and Certificate for Counsel.

Mr Adrian Kwan instructed by ONC Lawyers for the Petitioner

Respondent acting in person