Siegfried Adalbert Unruh v. Hans-joerg Seeberger and Another
Read the full judgment text of HCA 6641/2000 on BabelCite. This High Court CFI judgment was delivered on 7 July 2004.
1. I have before me an application that I should recuse myself from these proceedings on the grounds of apparent bias.
Cites 2 cases
|
HCA006641A/2000 HCA 6641/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 6641 OF 2000 ____________
____________ Coram: Deputy High Court Judge Saunders in Chambers Date of Hearing: 6 July 2004 Date of Ruling: 7 July 2004 __________ R U L I N G __________ 1.I have before me an application that I should recuse myself from these proceedings on the grounds of apparent bias. 2.It goes without saying that the right to an independent and impartial tribunal in the determination of rights and obligations in a suit at law is a fundamental plank in our judicial system. Article 14(1) of the International Covenant on Civil and Political Rights is imported into the law of Hong Kong through Article 39 of the Basic Law. That Article requires an independent and impartial tribunal established by law for the determination of rights and obligations in a suit at law. The right of a person before the courts of Hong Kong to an independent and impartial tribunal is so fundamental that it is guaranteed by the Basic Law. 3.There is no doubt as to the appropriate law to be applied on such an application and the parties were in agreement as to the relevant authority. The test to be applied in Hong Kong has been propounded by the Court of Final Appeal in Deacons v. White & Case [2003] 3 HKC 374 at 383, in the following terms:
4.It is helpful to remind oneself of what constitutes bias in judicial context. I adopt the definition of Simon-Browne LJ in R v Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139 at 151-2:
5.It must be remembered however that a complaint about a criticism made by a judge of a party or of a witness, even criticism made in strong terms, will carry no weight, provided such criticism is based on material properly before the judge and, in the light of such material, was not inappropriate: see Locabail (UK) Ltd. V. Bayfield Properties Ltd [2000] QB 451. 6.I approach my decision in this matter with great anxiety and caution. I am grateful to Keith J (as he then was) for the reminder in Natrass v. the Attorney General [1996] 1 HKC 481 at 492 that:
I have endeavoured in assessing this matter to take that step back. 7.The allegation made by counsel for Mr Seeberger, and adopted by counsel for Egana, is that findings have been made against them, based upon one-sided material adduced by Mr Unruh. Is then said that those findings are important and critical to the evaluation of the evidence of both Mr Seeberger and Mr David Wong of Egana, which evidence is yet to be heard. The result, it is argued, is that to a fair-minded and informed observer there is a real possibility that evidence yet to be heard will not be received without disfavour. 8.The application arises in the following circumstances. 9.In the course of interlocutory proceedings prior to the trial, an issue arose as to whether or not proper discovery of documents had been made by Mr Seeberger and Egana. Mr Seeberger in his own right, and Mr Wong on behalf of Egana, each made affidavits asserting they have not had in their possession or power any document relating to the settlement of certain arbitrations in the Netherlands, involving a wholly owned subsidiary of Egana, known in these proceedings as ESCT. Initially Mr Unruh sought to challenge those assertions, but, reserving his rights in that respect for the future, did not proceed with that challenge. 10.In the course of the trial Mr Unruh, on legal advice, issued a subpoena duces tecum, seeking the production of documents in relation to the settlement. An application was made by the proposed witness, a director of ESCT, to set aside the subpoena. It is clear that Mr Unruh was entitled to issue the subpoena and that if an application was made to set it aside the court was bound to rule on that application. 11.At the hearing of the application to set aside the subpoena, the parties were agreed that five propositions set out by Mr Mak, counsel for the proposed witness, accurately reflected the law on the subject of setting aside a subpoena. Those propositions were taken from what was agreed to be the leading authority in Hong Kong, namely To Kam Chi & Others v. Pui Man Yau & Others [1983] 3 HKC 371. The first of those propositions was that there shall be no discovery from a non-party. ESCT was not a party to the proceedings. It was clear therefore that if the subpoena were to stand, Mr Unruh would have to establish a relationship of such a nature between Egana and ESCT to take ESTC out of the category of a "non-party". 12.It was consequently clear to all concerned that a central issue in the setting aside of the subpoena was whether or not ESCT, a party to the arbitrations, but not a party to the proceedings before the court, was in such a relationship with Egana, that documents in the possession or power of ESCT were documents that were in the possession or power of Egana. 13.The fact that that was a central issue was clear from the decision in Lonrho v. Shell Petroleum Ltd., cited and relied upon by all counsel. That it was clearly understood to be a central issue is plain from the fact that a section of the submissions made by counsel for Egana entitled "Separate Legal Entity" was devoted to an argument that ESCT was a separate legal entity from Egana and not under the control of Egana. The same issue was addressed by counsel for the proposed witness in his submissions under a section entitled "Whether ESCT beneficially owned by D2 a factor to be taken into account". Counsel for Mr Unruh dealt with the matter in a section entitled "The position of ESCT". 14.Two affidavits were filed by the proposed witness in support of the application to set aside the subpoena. In opposition to the application an affidavit was filed for Mr Unruh by his solicitor, in which documents in the bundle for the trial, and documents from public records, were either exhibited or referred to. 15.Prior to the commencement of the application to set aside, the solicitors for Mr Unruh had contended that neither Mr Seeberger nor Egana were entitled to be heard on the application. I ruled, following the decision of Hunter J in Hsin Chong Construction Co Ltd v. Hong Kong and Kowloon Wharf & Godown Co Ltd [1896] HKLR 987, that they both had the right to be heard. Of course, with the right to be heard goes the right to file evidence. Neither Mr Seeberger nor Egana, both of whom were heard on the application, sought to adduce any evidence in their support of the application to set aside the subpoena. That it was open to them both to file evidence if they wished, is beyond argument. 16.Having heard all parties and considered the relevant evidence the parties chose to put before me, I concluded that ESCT was in the unfettered control of Egana, and that accordingly any documents in the possession or power of ESCT were in the possession or power of Egana. The evidence upon which I relied to reach that conclusion was evidence upon which submissions were made by all parties in the course of the hearing. 17.First, I relied upon the set of minutes of the board meeting of Egana held on 18 October 1999, produced by Egana. Next I referred to an affidavit made on 17 May 2003 by a solicitor acting for both Mr Seeberger and Egana. That affidavit was filed by the defendants. I then referred to the annual returns of ESCT, filed in the Companies Registry, being public documents. I finally referred to the affidavits filed in support of the application to set aside, by the proposed witness, where he referred to the relationship between the two companies. 18.In the course of the hearing counsel for Mr Unruh made it plain that in due course, in the course of the trial, he would challenge the credibility of both Mr Seeberger and Mr Wong. Counsel said that, in particular, he would challenge the assertions they made that neither Mr Seeberger nor Egana had in their possession or power any documents in relation to the settlement of the arbitrations. 19.I was not asked, in the course of the hearing of the application to set aside the subpoena, to make any assessment of their credibility. The fact that it was indicated that a future challenge may be made to their credibility was simply not relevant to the issue as to whether the subpoena should be set aside. 20.Both Mr Seeberger and Mr Wong now say that the finding that I have made that ESCT is in the unfettered control of Egana is such a finding that I cannot independently and impartially consider their credibility. 21.Those are the circumstances which have a bearing on the allegation that there may be apparent bias. 22.I must now examine whether those circumstances would lead a fair-minded and informed observer to conclude that there is a real possibility that I may be biased, or in some way may have pre-judged the issue of the credibility of Mr Seeberger and Mr Wong. 23.First, Mr Seeberger and Mr Wong, knowing that the issue of the relationship between Egana and ESCT was an important issue to be determined by the court in the question of the setting aside of the subpoena, elected not to make any affidavits as to that issue, but to rely upon the evidence before the court. Having elected that course they cannot now complain that they were not heard. It was open to them to file affidavits as to their view of the relationship between the two companies but they chose not to do so. 24.More importantly however, the whole of the evidence upon which I relied to reach the conclusion as to the relationship between the two companies, came, not from Mr Unruh, but from Mr Seeberger and Egana themselves, or from public documents before the court. While the references in the bundles to that evidence came from an affidavit by Mr Unruh's solicitor the actual evidence upon which I relied cannot be characterised as "one sided evidence from Mr Unruh." 25.I have come to the conclusion, after careful consideration of the submissions made, that the finding that has been made as to the relationship between Egana and ESCT was not made on one sided material adduced by Mr Unruh, but upon the whole of the evidence the parties then chose to have before the court. 26.The issue that I was required to determine was a clear and discreet issue, that of the relationship between the two companies, and an issue quite distinct from that of the credibility of Mr Seeberger and Mr Wong. 27.It is right that in the course of the hearing, counsel for both Mr Seeberger and Mr Wong objected to submissions being made by counsel for Mr Unruh that they were "not telling the truth", as there was no proper evidential basis for the submission, and they had not had the opportunity to answer that submission. But it is plain from the ruling that that issue was not before me, and I did not rule upon it. The fact that that issue would arise at the trial was relevant to the decision before me and I recognised that in paragraph 40 of the ruling. 28.It was not, by the time of the argument, in dispute that there were documents in existence in relation to the settlement of the arbitrations. The undisputed evidence, in fact the evidence from the Defendants themselves, established that those documents were held by ESCT. What was clearly in dispute in the subpoena argument was the issue of the control of ESCT by Egana and the ruling that was confined to that issue. 29.Although there have been suggestions, in the course of argument, as to the reasons why Mr Seeberger and Mr Wong made their affidavits as to documents in the terms that they did, those reasons were not in any way explored, either in submissions before me, or in my ruling. They were simply not relevant to the issues before me. The reasons for the making of those affidavits in those terms may ultimately be relevant to the credibility of the witnesses. That is a matter which was not considered at all, and is still wide open. The basis upon which a litigant has made an affidavit of documents is merely one of many factors which may ultimately go to the witnesses credibility. 30.When assessing the matter I have regard to the fact that the question as to the control of ESCT by Egana was an issue that was confined to the question as to whether or not the subpoena may stand. As recorded by Mr Chan SC for Mr Seeberger in his submissions made on the argument as to the subpoena, the court, in the trial proper, would not be required to make a finding whether the documents were within the power of Egana. That was not an issue for resolution in the trial. In determining that discreet issue I was careful not to embark upon any assessment of the credibility of either Mr Seeberger or Mr Wong. 31.I do not disregard the submission made by Mr Chan that the submissions made by Mr Burns at the subsequent costs argument demonstrate the ease with which the conclusion can be reached from the finding as to the control of ESCT by Egana, that Mr Seeberger and Egana, through Mr Wong, have suppressed documents. However it is so abundantly plain that the finding made does not inexorably lead to the conclusion drawn by Mr Burns that I am satisfied that a fair-minded and informed observer would say that Mr Burns needs more, much more, to establish suppression of documents. 32.Having regard to these facts, and having regard to the fact that there was no dispute between the parties that there were in existence documents in relation to the settlement of the arbitrations, I am satisfied that a fair-minded and informed observer would not consider that there was any apparent bias against either Mr Seeberger or Mr Wong in the course of these proceedings. 33.A fair-minded and informed observer would say that a particular factual decision has been made, in the course of the trial, on the evidence the parties chose to put before the court to decide that issue, that the defendants now do not like. That observer would say that the judge retains an open mind as to the credibility of the future witnesses and cases of the defendants. 34.For these reasons I decline the application that I should recuse myself from hearing the trial of this matter. I will now hear the alternative application that the trial should be adjourned pending an appeal to the Court of Appeal against the decision not to set aside the subpoena.
Representation: Mr Ashley Burns, instructed by Messrs Haldanes, for the Plaintiff Mr Anthony Chan, SC and Mr Jonathan Ah-weng, instructed by Messrs Wong, Poon, Chan, Law and Co., for the 1st Defendant Mr Hectar Pun, instructed by Messrs Wong, Poon, Chan, Law and Co., for the 2nd Defendant Mr Bernard Mak, instructed by Messrs Jesse Kwok & Co., for Leung Shu Wah Paul |
Cases cited in this judgment
Further hearings and rulings under HCA 6641/2000