Re Nie Kin Kwok Kevin and Others

HCMP 2577/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2577 OF 2004

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AND

CACV 181/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 181 OF 2003

(On Appeal From Solicitors Disciplinary Tribunal)

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BETWEEN

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Before: Hon Chung J in Chambers

Date of Hearing: 9 August 2005

Date of Decision: 9 August 2005

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D E C I S I O N

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1.This is an appeal against the decision of the Registrar dated 6 July 2005.  The appellant herein was the appellant in CACV 181/2003, an appeal against the findings of the Solicitors Disciplinary Tribunal (“the Tribunal”).  The court of appeal allowed the appeal and set aside the Tribunal’s finding of professional misconduct against the appellant.  Costs (before the Tribunal and the court of appeal) were ordered in his favour.

2.Two bills of costs were prepared for taxation: one in HCMP 2577/2004 in relation to the costs before the Tribunal and the other in CACV 181/2003 in relation to the costs of the appeal to the court of appeal.

3.Taxation of those bills came before the Registrar on 14 March 2005.  It could not be completed on that day and was adjourned part-heard.  The appellant then asked the Registrar to recuse and adjourn the taxation to another master.  In a reasoned decision handed down on 6 July 2005, the Registrar refused the application to recuse.  Being dissatisfied with that decision, the appellant appeals to this court.

4.The appellant’s application was (and this appeal is) based in short on an allegation that there was apparent bias on the Registrar’s part.  That allegation in turn is based on the fact that the Registrar is the former president of the Law Society (from May 1996 to May 1997).  The Registrar’s conduct during the taxation hearing and his reasoned decision are also relied upon as evidence that there was bias (probably even actual bias) on his part:-

(a)	the Registrar was over-zealous in scrutinizing the bills of costs during the taxation hearing on 14 March 2005;
(b)	the Registrar incorrectly stated that the Law Society had no financial interest in the taxation of the bills of costs when s. 25, Legal Practitioners Ordinance (Cap. 159) provides that the expenses incurred by the Tribunal, and those incurred by the Law Society for Tribunal proceedings and appeals, may be paid out of the general revenue if so certified by the Secretary for Justice.

5.Several matters ought to be mentioned before considering the merits of this appeal.  The Registrar joined the Judiciary in November 1998.  According to the reasoned decision, he no longer had dealings or connections with the Law Society (except in his official capacity) since then.  He also explained that the length of the hearing on 14 March 2005 was the result of a taxation strenuously contested by the parties.

6.The appellant submits that the test to be applied in a recuse application is that set out by the Court of Final Appeal in Deacons v. White & Case Limited Liability Partnership and Others [2004] 1 HKLRD 291 at para. 20 and 21.  I assume for the purpose of this appeal that is the correct test.  In short, the test is:-

“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”.

7.It cannot be (and is in fact not) suggested that the Registrar is financially interested in the outcome of the taxation, nor can it be suggested he is somehow interested in it in other ways.  What the appellant complains is in effect he was closely connected with the Law Society because he is its former president.  Therefore, the Registrar may be emotionally or sentimentally attached to the Law Society. 

8.The connection relied upon by the appellant ceased almost 8 years ago (May 1997 to March 2005).  The period of “disconnection” per se is sufficient to militate against any reasonable apprehension of danger of bias.  Further, the office of the president of the Law Society is very much an appointment in the nature of a public office.  In the absence of evidence, there is no valid basis for concluding there is a reasonable risk of undue attachment.

9.I accept the reason given by the Registrar for the lengthy time taken for the taxation on 14 March 2005 and do not consider any valid complaint can be made therefrom.

10.Finally, even if the Registrar’s remark that the Law Society has no financial interest in the outcome of the taxation was erroneous, I do not find that to be evidence of bias on his part (whether apparent or actual).

11.Other relatively minor matters have been put forth by the appellant as alleged mistakes on the Registrar’s part.  I do not find them to be relevant to the issues in this appeal.

12.Accordingly I am satisfied that no fair-minded and informed observer would conclude that there was a real danger than the Registrar was (or will be) biased.

13.For the above reasons, this appeal is dismissed.

Mr Richard Healy, of Messrs Oldham Li & Nie, for the 2^nd Respondent in HCMP 2577/2004 and for the Appellant in CACV 181/2003

Mr Geoffrey D Shaw, of Messrs Deacons, for the Law Society of Hong Kong