Esquire (Electronics) Ltd v. The Hongkong and Shanghai Baniing Corporation Ltd and Another

HCA11077/1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.11077 OF 1994

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BETWEEN

AND BETWEEN

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Before : Hon Waung J in Chambers

Dates of Hearing : 14 December 2005

Date of Judgment: 14 December 2005

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RECUSAL JUDGMENT

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1.The application before me is by the Bank Defendant for me to be reclused from the Remedy Trial.  The recusal application is not opposed. The application is made on the basis of apparent bias.  It is accepted that there is no actual bias.

2.For the benefit of the Plaintiff, in particular Mr. Gurdas, I feel that brief reasons ought to be given why I should accede to the application. 

3.In my Judgment on liability I said in strong terms against the Bank and the Bank officers were viewed unfavorably by court.  These same officers and their evidence are to be considered and assessed by the same Judge in the Remedy Trial.  This situation is what is called “pre-judgment” in the Australian case of Spedley Securities.

4.The relevance of a pre-judgment on apparent bias was described by Mahoney JA in a particularly perceptive judgment in Australian National Industries Ltd v. Spedley Securities Ltd [1992] 26 NSWLR 411 where he said:

“	(a)	The disqualification of a judge for apprehended pre-judgment depends on form rather than substance;
	(b)	Whether there is an unacceptable appearance of pre-judgment is to be decided, not according to likelihood but according to possibility;
	(c)	It is to be judged, not according to what the court and the parties know, but according to the impressions of a lay person, who does not know the facts; and
	(d)	There will be an unacceptable appearance of pre-judgment if the judge has previously dealt with the issue of fact or credibility which is before him in the instant case.”

5.Therefore pre-judgment involves giving the appearance or impressions to a lay person that there is possibility of bias and therefore there is possibility that there might not be a fair trial.

6.Appearance of absolute fairness (not actual fairness) is vital for the long-term public trust in the legal system.

7.There is here no contrary consideration of necessity, special circumstances or consent of the parties.

8.The Remedy Trial has been fixed to start on 20 June 2005 and all efforts should be directed towards an orderly progress to that Trial and not be distracted by a dispute over retaining a particular judge or by appeals connected with such dispute.

9.There is nothing seriously lost by the Trial being presided by a different judge, provided Trial dates are kept and reasonable judge can be found.

10.There is further advantage that the Remedy Trial can proceed more smoothly and any appeal from judgment of that Trial would not be burdened by consideration of bias, apparent or otherwise.

11.I bear in mind what Sir Anthony Mason said about judges do not “accede too readily to suggestions of appearance of bias”.  But in the exceptional circumstances of this case, I have come to the firm view that it is right and that it is further my duty to accede to the application and I order that the Remedy Trial be listed before another judge.

12.Arrangement has now been made for Lam J to hear the Trial starting 20 June.  1^st PTR will be before Lam J on 21 April and the second PTR on 23 May.

13.I believe in the circumstances, it would be fair that costs of the application for recusal should be costs in the cause of the Remedy Trial.

Mr Martin Lee, SC, Mr Paul Harris and Mr Newman Lam, instructed by Messrs Ho Tse Wai & Partners, for the Plaintiff

Mr John Jarvis, QC, Mr Joseph Fok, SC and Mr Eugene Fung, instructed by Messrs Johnson, Stokes & Master, for the 1^st Defendant Bank