Tsui Koon Wah v. Lam King Yuen and Others

cacv 278/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 278 of 2006

(on appeal from HCA NO. 890 of 2003)

______________________

BETWEEN

______________________

Before : Hon Rogers VP and Le Pichon JA in Court

Date of Hearing : 13 October 2006

Date of Judgment : 13 October 2006

______________________

J U D G M E N T

______________________

Hon Rogers VP:

1.This is an appeal against a decision of Chung J given on 10 August 2006.  There are in fact three notices of appeal.  The first simply is an application that the judge was wrong in dismissing the Plaintiff’s summons filed on 21 July, which was a very short summons.  All it said was that Chung J should be recused from the action.

2.The grounds upon which that was said appeared to be lengthy.  They are that the judge erred in law in holding that the Plaintiff’s decision to commence legal proceedings against him could not constitute a valid ground to say that there has been apparent bias; and that there was no evidence upon which the judge could find that the Plaintiff created for himself a situation of apparent conflict; that the judge ought to have held that the Plaintiff’s prosecution by way of applying for the issuance of a summons against the judge in a Magistrates Court and for leave to apply for judicial review was the exercise of the Plaintiff’s common law right in the interests of the public in the place of the Secretary of Justice; and the learned judge ought to have found that it was the judge’s own making of the order of 7 April that created, for the Secretary of Justice and the Plaintiff, a situation of apparent conflict between the judge and the Secretary of Justice on the one hand and the Plaintiff on the other; and the judge ought to have held that since he and the Defendants’ solicitors are interested parties in the judicial review application, a reasonable, fair-minded and well-informed observer would conclude that there is a real possibility that the judge would be biased.

3.There was then a supplemental notice of appeal which simply said that the judge ought to have recused himself from the action and that any subsequent order or direction made by the judge on controversial matters should also be set aside.  Then there was a second supplemental notice of appeal, again repeating that the judge should have recused himself, and again that any order or direction made by the judge on controversial matters should be set aside. 

4.The basis of all this is that the Plaintiff has a complaint, which he has made in very many ways, that he says that the judge should not have issued a corrigendum in respect of his decision, which was handed down on 7 April.

5.I have to say that the action with which the judge is concerned has grown into a particularly complicated action.  It arises out of the early dismissal of the Plaintiff from the Social Welfare Department where he was employed on a temporary basis.  Because of the early dismissal, he has now sought to bring proceedings against four of his former fellow employees in that department.  The pleadings have become lengthy and complex and have reached this Court on one previous occasion.  I can say, having had to grapple with them myself, that they are difficult to deal with as a judge.  They are not concise and precise.  Although I have taken what steps I could to try to ameliorate the position, that remains.  It is not particularly surprising that, in his decision of 7 April, there may have been one or two things which the judge overlooked and had to correct in a corrigendum.

6.However, that has precipitated from the Plaintiff, first of all, an attempt to have the judge prosecuted on some basis.  That attempt having failed, the Plaintiff has then taken out judicial review proceedings against the magistrate in order to try and have a prosecution brought against the judge.  All I can say is that, in my view, those applications appear to be baseless, groundless, and an abuse of the process in themselves.

7.That brings me to the application before the judge to recuse himself.  Not only was the judge right in refusing to recuse himself because the application upon which it was made, of apparent bias, was groundless, but he was very right to do so because it is far too easy for litigants to raise questions of apparent bias in order to have a particular judge not try their case.  It is very important in the administration of justice that litigants cannot choose their judges and judges cannot choose their litigants.  We are faced, on both sides of the court, with a blind decision as to which judge will hear which case and it is most important for the proper administration of justice that that should continue.  So whereas a judge may, for other reasons, consider it is far more to his liking to recuse himself from a case, it is his duty to hear that case unless there are proper grounds for his refusing to do so.

8.In my view, this appeal has to be dismissed.  I have to say that if further applications like this are made, the Plaintiff is liable to have an order made which will prevent him making any further applications without leave of the court.

Hon Le Pichon JA:

9.I agree.

The Plaintiff/Appellant, in person

Mr Kwok Sui-hay, instructed by Messrs Liu, Chan & Lam, for the Defendants/Respondents