Chau Siu Woon and Another v. Cheung Shek Kong and Others

HCA 7032/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7032 OF 1999

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BETWEEN

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Before: Deputy High Court Judge Carlson in Chambers

Dates of Hearing: 4-5 January 2007, 2 February 2007

Date of Judgment (Handed Down): 17 April 2007

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J U D G M E N T

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Introduction

1.This is an appeal by the 1^st Plaintiff (“Madam Chau”) from a refusal by Master Lung to discharge himself from continuing to hear her summons for further discovery.  It is submitted on her behalf that he has displayed bias against her and therefore should withdraw from continuing to hear her summons.

2.The action, which was started as long ago as 1999, concerns land in the New Territories.  Until this application for the Master’s recusal, Madam Chau has appeared in person.  The detail of the claim against the Defendants’ appears in her 56 page amended-Statement of Claim.  In view of the fact that I am only concerned with the way in which the Master conducted the hearing on the first day of Madam Chau’s summons I need only describe the nature of the claim itself in a rudimentary way.  The background to this matter concerns the longstanding policy of the Government to allow indigenous New Territories residents to obtain land from the Government so as to build a small house on it.  This facility is commonly referred to as the Government’s Small House Policy.

3.Madam Chau has entered into a number of agreements in writing with some of the Defendants’ who are variously property development companies and their representatives, to purchase houses that were to be built on such land.  Consequent upon these agreements, she has paid over to the developers very substantial sums as deposits pending the construction of the houses.  Various representations are alleged to have been made to her as to when the building work would be completed.  She alleges that the building work has been so delayed, in breach of the agreements, that she is now entitled to be released from her contracts and is entitled to have her deposits returned to her.  Additionally, she also alleges that the Defendants have come about the various pieces of land, upon which the houses would be built, in breach of the Small House Policy because the indigenous New Territories residents who purported to sell the land to the developers had acquired it by falsely representing to the Government that they were qualified to obtain land from the Government pursuant to that policy when that was not in fact the case.  As a result, they were not entitled to convey the land to the developers upon payment of a premium to the Government, as provided for in the relevant legislation.  This being so the developers title to the land is now in question.  This therefore, as pleaded in Madam Chau’s amended-Statement of Claim, affords her another basis to have her agreements with the developers set aside and to have her deposits returned to her.  In one instance it is also said that there is further ground for the return of her deposit, which is that one of the parcels of land has been designated for agricultural use only, which means that it cannot be put to residential use which is what it is being sold to her as.

4.Stripped of its detail and jurisprudential bases this is what the action is all about.  I should also say that by a joint application in the form of a consent summons dated 10 March 2004, the 2^nd Plaintiff who, broadly speaking, was making similar claims against the Defendants, consented to have her claims against all six Defendants dismissed and they in turn consented to have their counterclaims against her dismissed.  The order giving effect to that summons is dated 22 March 2004.

The 1^st Plaintiff’s Summons for Further Discovery

5.The first round of discovery having closed, Madam Chau took the view that the Defendants’ should have disclosed further documentation.  She took out a summons dated 9 September 2005 supported by an affirmation by her of the same date.  The summons was adjourned for argument before Master Lung to 24 March 2006 for which one and a half hours was provided.  This time estimate has an important bearing on the appeal.  Madam Chau was assisted by a friend of her’s Madam Kwok, who was presented as a Mackenzie friend.  The Defendants’ appeared by experienced counsel, Mr Paul Wu, and solicitors.

6.There is no doubt that the summons, with its detailed application for further discovery, supported by an equally full affirmation which came with five exhibits exceeding 150 pages made for daunting reading for the Master who also had to digest and understand the 56 page amended-Statement of Claim as well as the amended Defence and Counterclaim of six Defendants which ran to 13 pages.  The hearing before him started at just after half past nine and, as appears in the transcript, he had another summons, also scheduled for one and a half hours, immediately following this one.  The hearing was conducted in Cantonese.  I have an English translation of the transcript.

7.It seems to me that a hearing of this kind, involving as it did a detailed amended-Statement of Claim, the allegations of which had been denied in the amended Defence and Counterclaim, required a thorough understanding by the Master of what was involved.  I have had the opportunity to read and re-read the transcript on a number of occasions, both in the course of the appeal and subsequently for the purpose of preparing this judgment.  What is clear is that the Master did not have a detailed understanding of the issues involved.  Whilst I am bound to make this observation I should also say that those who sit in the Masters’ corridor in the High Court are expected to get through a great deal of work in hearing a very wide variety of applications before them.  Their’s is vitally important work in the management of civil litigation.  It will vary from the briefest of appearances in simple applications which can be dealt with quickly, to heavy assessments of damages which will occupy several days of detailed examination of evidence.  In between there is a wide variety of very demanding interlocutory work which, given the demands of their tasks and case-load, requires them to work quickly and accurately.  This summons, in my judgment, required the Master to have done a certain amount of reading of the papers beforehand.  This having been said it is not always possible given the size of a Judge’s or Master’s list to read papers in as much detail as the Judge or Master concerned would have wished to. Frequently, where the Judge has the assistance of experienced counsel, he will beforehand only need to understand in a general way the issues that present themselves for resolution, leaving it to counsel to provide the detail on the issues and the arguments which are said to bear on those issues.

8.Unfortunately on this occasion the case for further discovery, and summonses of this kind can present difficult issues, was being argued by a lay person who, apart from not having the ability which counsel are expected to have of presenting what at first blush appears to be a complex jumble of facts in a readily understandable way, also lacked the objectivity which an advocate could bring to bear on the matter.

9.As a result, the hearing got off to an unhappy start.  It seems to me that Madam Chau made a rather forthright, if not aggressive, start to her case by wondering whether the 2^nd to the 6^th Defendants, who had not filed evidence in reply to her affirmation, were to be taken to have agreed with her application [page 30D-E Appeal Bundle] and then pointing out that several important documents in the case were false or fictitious.  She said that she had made these serious accusations which had not been answered by any of the Defendants [31N].  Having listened to this introduction, the Master turned to the amended-Statement of Claim.  See 32B-P.  He said:  “Can you briefly tell me the facts of your case? … I find that the pleading of yours too complicated since it ran to 50-odd pages … You briefly describe the facts of your case to me.”  It is clear from this exchange that the Master had not read the papers in any great detail.

10.Despite her best efforts, and some questioning from the Master, Madam Chau was not able to give the Master a sufficient grasp of the case.  In the event, he turned to Mr Wu to provide him with a synopsis of her case.  What Madam Chau had achieved in trying to get her case over to the Master was that the matter was a factually complicated one and that the one and a half hours that had been provided was not going to be sufficient to dispose of it.  As a reading of the transcript shows the Master had a number of brusque or terse exchanges with Madam Chau and as he had predicted the time provided proved insufficient with only about half of the items in the summons argued over.  He then adjourned it part-heard as he said he would.

11.It was further listed on 9 November 2006 in the expectation that the hearing of the summons would be completed.

What Happened Between the First and Second Hearing

12.Plainly, Madam Chau was very dissatisfied with the hearing that she had had before the Master on 24 March.  She went off to see solicitors who instructed Mr Derry Wong to appear for her on the adjourned date.  Her solicitors called for a transcript of the previous hearing and also for a copy of the recording, so that they could not only read but listen to how the case had been conducted.  For reasons which I will come to presently the solicitors advised Madam Chau that a complaint should be made to the Chief Judge of the High Court about Master Lung’s conduct.  The Chief Judge has acknowledged the complaint but proposes taking no further action until at least the outcome of this appeal or I suppose the conclusion of the hearing by Master Lung depending on the result of the appeal.  There has also been a complaint laid against Mr Wu to the Bar Council as to the manner in which he conducted himself before the Master.  It is not clear, at present, who has laid this complaint.  Madam Chau says that it was not her.

13.On 9 November, Mr Wong applied to the Master to discharge himself from further involvement in the case.  I have a transcript of that hearing as well.  Mr Wong told the Master that he had shown bias against Madam Chau.  She had lost confidence in him.  She felt that he would not decide her summons fairly.  He would not do her justice.  The Master refused to discharge himself.  That application took up all of the allotted time set aside to complete the summons on its merits.  A further hearing has been provided for.  If I allow this appeal the matter will need to be heard afresh by another Master.  If I uphold the Master then he will continue to hear and dispose of the summons on its merits.

The Grounds of Complaint against Master Lung

14.This being an appeal from a Master to a Judge in Chambers the hearing before me is a hearing de novo as if the matter has come before me for the first time.  I am in no way fettered by the previous exercise of the Master’s discretion, such that in the event of an appeal from me to the Court of Appeal that court will treat the discretion as that of the Judge rather than the Master’s.  See Hong Kong Civil Practice 2007, Order 58/1/2.

15.Mr Wong has summarised his grounds for recusal in this way [pages 1 and 2 of his written submission]:  I will repeat them here.  Although they are not exhaustive they form the basis of a lengthy and detailed argument supported by much authority including various international conventions.

“The Master:

(i)        Did not read, was prepared to read, refused to read the Plaintiff’s pleading, affirmation and exhibits in support.

(ii)       Blamed the Plaintiff for letting him have only one hour reading time (indirectly alleging restriction of reading time by the Judiciary).

(iii)      Acting as the Defendants’ advocate.

(iv)      Effectively obstructed and distracted the Plaintiff from proceeding with her application and from being assisted by her Mackenzie friend.

(v)       Warning her of the ‘consequences’ of proceeding.

(vi)      Discriminated against her on the basis of language (indirectly racially) and on the basis of her economic situation.

(vii)     Putting to her groundless allegations of violence as part of her case.

(viii)    Discriminated against her by asking her to subdue noise outside court.

(ix)      Condoned prejudice created or purportedly created by the Defendants’ counsel.

(x)       Deprived the Plaintiff of timely protection of counsel by ex post facto ‘upgrading’ of non-binding and hypothetical expression of opinion, before she had counsel, to a ‘determination’ actually made, so that she had to face additional obstacle when she had counsel.

(xi)      Asked her to leave court thereby depriving her of her right of presence.”

16.It is difficult to imagine any graver allegations that could be made against a judge or judicial officer.  In the event that he had perhaps overstated his case in its preparation, I asked Mr Wong at the start of the appeal whether he was pursuing the matter in the way that appeared in his written submissions.  He told me that he would be, and so it was that for the three days taken up by the appeal (Mr Wu’s response being a relatively brief one) Mr Wong has developed his grounds in an unflinching and uncompromising manner although, I am bound to say that he has conducted himself before me with great courtesy notwithstanding the content of his submissions.

Preliminary Observations

17.Without proposing to be unduly philosophical about such matters, it seems to me that an independent judiciary and an independent legal profession bring about, in differing ways, high expectations from the community that they both serve.

18.The judiciary is required to display a great many qualities which one now finds reference to in the “Guide to Judicial Conduct”.  Whilst a judge exercises considerable power by virtue of the force of his judgments and orders and the consequences that they carry, he is required to perform his duties diligently and conscientiously in the sense of the effort that he is required to put into the task before him, and to do so in an even-handed manner.  Only then, can a judge’s decisions earn the respect of the community at large and entitle the judiciary to the independence that it requires if it is to perform its duty effectively.

19.For its part an independent legal profession must be able to fearlessly perform its frequently difficult and important duty on behalf of its clients.  Advocates must be able to say unpopular and controversial things to the court knowing that they will not be punished for what they have said.  This is a powerful right and a privilege but it is one that brings with it great responsibility and the need for discretion.  These I believe are basic tenets and I refer to them because it seems to me that this appeal has brought into focus all of these considerations.

20.A judicial officer is being accused of the very worst behaviour on behalf of a dissatisfied litigant.  If these complaints are found to be justified then he must suffer the opprobrium that such a judgment will inevitably carry.  On the other hand, if the complaints now being advanced by experienced counsel exercising his right as a member of an independent and honourable profession knowing that he will be free from suit by doing so prove to be hollow, unjustified and should therefore never have been made, then submissions such as these must do harm to the administration of justice.  The very making of such unwarranted submissions will tend to harm the status of the judiciary by heaping upon one of its number what will have amounted to abuse and at the same time they must be seen as diminishing the standing of an independent Bar where one of its members will have misused his right to argue a case fearlessly because it will have been exercised without any or any sufficient regard to that sense of responsibility and good judgment that need to be exercised before making submissions such as these.

21.I must now examine Mr Wong’s arguments with care to see whether they are justified on the material before me.  If they are I must say so.  If they are not then the appeal must be dismissed and this case would stand as an object lesson in how advocacy should not be practised in our courts for the reasons that I have attempted to provide.

The Argument and Its Analysis

22.Mr Wong has invested a great deal of time and effort in preparing the appeal and in presenting his submissions in the course of the hearing itself which occupied parts of three days.  His written case runs to 37 closely-typed pages.  It amounts to no more or less than a dissertation on the manner in which a judge or judicial officer should conduct himself in court which then seeks to contrast the Master’s conduct with those aspirations or, as he would put it, expectations.  In presenting the argument he has referred to numerous authorities as well as international declarations, codes of conduct and of course the Basic Law.

23.I have followed his argument with mounting concern as he has sought to present the Master as indolent, a bully, at best overbearing, possibly a liar and amongst other things a racist based on the fact that Madam Chau was not fluent in English and therefore unable to read the pleadings and other documents in the case as well as might be expected.  All of this he has done against the background of judicial and academic authority which he has freely cited in support of a case that, I am bound to say, was far more theoretical and imagined than real.

24.In order to decide this matter one needs to read the transcript of the hearing as a whole to get a proper overall sense of what went on.  One needs to start with the fact that the Master had not beforehand read the papers in any way that was helpful to him.  His questioning of Madam Chau and his request that she tell him what her case was all about amply confirms this, as does his request of Mr Wu to help him with the facts of her case.  There is no doubt that had he read the papers carefully he would have been able to grapple with the detail of her summons much more effectively.  This having been said it is not always possible for a busy Master to read into a case as he would have wished.  This cannot of itself amount to misconduct.  One would need to look at all the circumstances of the case.  In this regard, Mr Wong has alighted on a passage in the transcript at page 32F-S of the Appeal Bundle referring to a time when Madam Chau was starting to address the Master.  The passage is as follows:

“Court:       This case of yours — for one and a half hours.  The court should not spend one and a half hours to hear this case because if you spent one and a half hours, then the court would have to list, would have to set down the case in the daily cause list.  In other words, the court would not have so much time to read your documents.

Plaintiff:    I understand.

Court:        If you (fix) one and a half hours to look at a case, this court has other cases to deal with.  I may only have one hour to read your documents.  You have so many documents here.  Do you realize that I cannot finish reading them in an hour?

Plaintiff:    May I tell you now?

Court:        Then in these circumstances the court is pressurized unfairly.

Plaintiff:    I understand.

Court:        If you give one and a half hours, then what about the cases that follow?

Plaintiff:    Do you want me to start from the beginning —

Court:        You must tell me.  It is because I can tell you that I cannot possibly finish reading all your documents within such a short period of time since your pleading is so length.  But I do not find it necessary to read your pleading in full.  You tell me very briefly how your case arose.”

25.As a result of the reference at 32K “I may only have one hour to read your documents”, Mr Wong has demanded to know whether it was judiciary policy to restrict judges to such a time limit on reading papers.  There is correspondence with the Judiciary Administrator to this effect.  See pages 117-118 of the Appeal Bundle.  No substantive reply has been received no doubt in view of the fact that the matter was then still going on before the courts.  I was able to re-assure Mr Wong that a judge would be able to have as much time as he required which often meant working after normal working hours.  Mr Wong has dealt with this in his written submission at paragraph 3 on page 3.  He says that the Master was not telling the truth if he was saying that he had been placed under a time restriction by the Judiciary.  It seems to me that Mr Wong has twisted what the Master was saying.  A fair reading of the passage is that he was concerned that this was a complicated matter and that the allotted one and a half hours was not sufficient, particularly as he would require an hour to read the papers.  It is quite impossible to translate that as meaning that he was under any sort of restriction limited to an hour to read the papers.  Any suggestion of a limitation imposed by the Judiciary on reading time is quite wrong nor it is possible to get from this passage that this is what the Master was intending to say.  His concern was the time that this case was going to take was more than the allotted time.

26.The inadequacy of the time estimate for the hearing was no doubt contributed to by the Master in not having read into the case, because had he done so I am certain that he would have been able to substantially get through the summons.  Whether this feature can, of itself, justify the tirade that has been levelled against the Master I will return to presently.

27.Nevertheless, what needs to be faced up to is that the Master’s unfamiliarity with the detail of the case set the tone for the hearing.  He undoubtedly struggled to get on top of it as it proceeded and this in turn may have affected his humour particularly where he had to rely to a great extent on a layman and her Mackenzie friend for assistance. 

28.After a period of listening to Madam Chau recount her case to him, the Master stopped her and the following took place [page 35E-S]:

“Court       Well, I must remind you that your case is listed for one and a half hours and I will only deal with within this one and a half hours.  I will adjourn once the time is up and the case will — be part-heard because I have another case fixed to be heard after this time slot of one and a half hours.

Plaintiff     Yes.

Court:        You have to bear the consequence if that is your arrangement.  Understand?  We will do our best to deal with your case within this one and a half hours but you have to understand that your case may not be finished within one and a half hours since there are much material which I have to deal with.  Are those people whom you mentioned material and is it necessary to state the shareholding?  I do not quite understand, Mr Wu, can you help?

MR WU:    Yes.

Court:        Since it is really — those — the — facts of the case, I think they are not accounted for very clearly.  You have read all the documents, haven’t you?

MR WU:    I have read the documents.

Court:        Yes.

MR WU:    Firstly, this Statement of Claim is indeed quite lengthy.  I had to spend some time before I got a broad understanding of it.

Court:     Yes.”

Following this Mr Wu provided the Master with a summary of Madam Chau’s case [See pages 36-39].

29.From the passage that I have just referred to Mr Wong seeks to develop two matters.  Firstly, that the Master had somehow threatened her when he told her that she had provided a time estimate that was too short and that at the end of that time he would adjourn the case part heard to another date:  “You have to bear the consequence if that is your arrangement.  Understand?”  It seems to me that this is really putting the matter far too high.  All he was saying was that if the case could not be finished it would have to go over.  This is something that frequently happens.  Whilst this may carry an implied criticism that she had under-estimated the time required the passage can hardly measure up to a threat or bullying by the Master.  I find nothing objectionable in that.

30.The other matter raised by Mr Wong is that it was wrong of the Master to have invited Mr Wu to take over and provide a summary of her case.  Again there is nothing at all objectionable in that.  A judge will frequently do this with an unrepresented party in order to assist as much as anything else, when counsel might be expected to provide a more coherent narrative, which is in fact what happened on this occasion.  Mr Wu put it perfectly neutrally and fairly.

31.There then followed a discussion concerning Madam Kwok, the Mackenzie friend.  Mr Wu observed that he had seen Madam Kwok “feeding her things” [40E].  Apparently he was concerned that Madam Chau should not be influenced into saying things which did not represent her views.  At 40Q-S he said this:

“MR WU:   She — sits next (to her).  My stand is very clear.  There is absolutely no problem if Madam Chau thinks that she needs help over some matters.  But if the assistance was to such an extent that it was in fact something said to her by the person next to her and she repeated it just like a recorder, I may take issue with it.

Court:        Hmm, hmm.”

32.Quite rightly, Madam Chau replied that what she was telling the court were her own views and that she had not been influenced, although she needed her friend’s assistance.  She said that she would listen to what her friend had to tell her and then filter it before presenting it to the court [41B-J].  The Master was not entirely happy with that suggestion.  This is what he said:

“Court:      Even though we understand this, the whole trial has to follow some rules.  Every one is entitled — that is, to insist on one’s own principle and to insist on one’s own interest.  If every statement of yours is told to you by the other person and then you say it after thinking over it, firstly, it will take too long and secondly, I do not think it a proper approach.  In other words, every time you will have an opportunity to wait for a though-out version of someone and then you will only tell me after you have a discussion between you. —

Plaintiff:    Then —

Court:       If it is something general — that is, if it is something touching on the aspect of law, it will not matter since I in fact may not need your assistance.  But if it is something about the facts, I do not think it right since you have said that you are the one having the clearest knowledge.  So you are in the best position to give me an account —

Plaintiff:    All right, sorry, —

Court:        — Correct?

Plaintiff:    — I will give an account myself.

Court:        Right.”

[41K-T and 42A-F]

33.This forms the basis of Mr Wong’s complaint that the Master was interfering with her right to get the assistance of her friend.  I do not agree.  There must be some balance about the use of a Mackenzie friend.  It is not expected that the friend will take over the running of the case.  The friend is there to make suggestions and to help out with the documents, leaving it to the litigant to address the court and make the argument.  The thought that Madam Chau should listen to her friend and then digest what she had told her and then “filter it” was not something that appealed to the Master.  To have allowed that to happen on an ongoing basis would have gone beyond the function of a friend in such circumstances and also been very time consuming, and this is what the Master wished to avoid.  His observations were, in my judgment, perfectly unobjectionable.  This complaint has not been made out at all.

34.One then comes to long passages where the Master purports to explain to Madam Chau what is involved in the application for further discovery that she is making.  This starts at 42 from H and then the discussion continues to page 47.  At 47I, the Master expressed his concerns as to whether in due course, presumably at the trial, Madam Chau would be able to deal with her case unrepresented, it being a complex matter.  Then at page 49 one comes to the question of whether she reads English sufficiently well to argue her case.  Given the importance of this aspect, which carries, no less, an imputation of racism on the part of the Master because of the things that he said to Madam Chau, I ought to set out the passage in full [pages 49-51]:

“Court:      What is it?  You want — you want — did you write those in English?  Do you understand those written in English?  Don’t you understand them?

Plaintiff:    Of course I do not quite understand.

Court:        Then in what circumstances did you sign the affidavit?

Plaintiff:    He/She had explained the whole document to me and I made a record in Chinese myself.  It is because if it is written in Chinese (sic), it will be much more convenient to the court.  In fact I —

Court:        You can write in Chinese.  We do not mind.  What is most important is that since it is your affidavit, you should fully understand its contents before you signed it.

Plaintiff:    This I understand, Sir.

Court:        The question is that you do not understand the writings there.  Very simply, you tell me what paragraph 9 says as it is your affidavit.  The lady next (to her) does not render any help, please.  This is your affidavit.  You tell me what paragraph 9 says.

Plaintiff:    Hmm, hmm.

Court:        Well, it is very simple.  You said you had to examine, to carefully check the document and its content.  How can you possibly ask the court to carefully check the document and its content?  I cannot possibly do that.  You must tell me which documents, what contents that make you think that the documents below were, either mainly directly or indirectly or inferred to be in his possible.  This is the correct way to do it.  How can you ask the court to look at them by itself and then draw its own inference?  Right?  Say for instance, you are looking for someone in the vast populace.  You have to tell me who that person is, right?  ‘You do the search yourself.  That person has eyes, ears, mouth and nose.’  How am I going to search?  Well, you can see that some content of the document disclose by the defendant, so you are asking me to look at all of his documents and the pleadings.  In other words, you now ask the judge to look at all the pleadings, all the documents and to help you to get something from him.  That I think does not seem fair to the other party.  Besides, we have no idea how to go about it.

(End of Page 10)

                  How am I going to go about it for you?  You even said a lot about inferentially here.  You ask me to — you ask me to infer, how am I going to infer?

Plaintiff:    In fact I came to court today hoping the court will grant leave to this — these few points, that is, whether it is reasonable or not —

Court:       It is not about whether it is reasonable or not, Chau Siu Woon.  It certainly is reasonable from your point of view.  But the court does not only (consider) the reasonableness but also the legality.  The meaning of legality is two-fold.  The first is the statutory requirement.  In other words, you have to fulfil what is required to fulfil by law.  The other is whether the court has the power to do that.  It is very simple.  Now you ask me to look at all the pleadings, all the documents of the Defendants and then draw its own inference.  What to infer — how to infer?  The other party would not know how I drew the inference.  This should be explained by you to the court.  ‘Well, now I tell you that since the defendant had written that in his document, I therefore drew such an inference.’  Then people would know why you drew that inference and then I could assess whether your inference was correct or not.  I should not be the one to assess — to infer.  People would not know my thinking process.  They would not know.  I could not draw an inference in such a way.  Furthermore, you have not told me which documents and you are in fact asking me to look at all the documents.  It is not appropriate.

Plaintiff:    No, Mr Cheung Shek Kong said in paragraph 2 of his affidavit that Heng Fu had signed contracts with the 2^nd, 3^rd and 4^th Defendants. —

Court:       But that is not what you have written here, where did you —

Plaintiff:    — But all of them were misplaced.

Court:       — say that?  You did not say that.

MR WU:    No, no.

Court:       Okay.  Well, let’s go back to your table.  Chau Siu Woon, it is in fact very difficult for you.  There is a problem if you proceed in this way because I think you will not be able to handle your problems on your own in any subsequent hearings.  You will definitely need (the assistance of) the person next to you.  This is in fact something that you are ignorant of.  Do you realize that?  How can you proceed?  This affidavit is your affidavit.  At least you — you are liable for your own affidavit.  When people ask you, ask you about the contents of your affidavit, what can you do?  The one who drafted it for you cannot give evidence on your behalf.  It is important that you really understand its contents.  You cannot just have a rough understanding since it does not merely state the facts, the person who wrote it for you had written a lot of procedures in it.  The court is asked to read everything and then draw an inference.  Well, you look at the, that is, the items in the summons. In the first item you ask them to disclose the written contract(s).

Plaintiff:    Yes.”

35.Mr Wong asserts that the Master had been guilty of racism and of denigrating Madam Chau socially because she cannot speak English.  I am much troubled by this submission firstly, because of its gravity and secondly, because it completely lacks substance and should therefore never have been made.  Any fair and objective reader of these passages, and others that follow it, will understand that the Master was anxious to see that this lady should not be disadvantaged by having to present her case based as it is on English documents which she cannot read sufficiently well to understand.  To turn this round and to say that the Master had been guilty of some form of linguistic racism and social belittlement of Madam Chau demonstrates a mendacity on the part of counsel which has no place in court.  This aspect of Mr Wong’s appeal, singularly lacking in any merit, goes well beyond a mere lack of judgment and good sense.  It is malign and should never have been advanced, delivered as it was advisedly and without hesitation.  I say nothing more about it.

36.The matter then continued over the succeeding pages with the Master making a lot of the going himself trying to explain the position to Madam Chau, pages 56 and 57 demonstrating this in particular.  At page 62 the Master did adopt a forthright manner.  He had by now began to get a feel for the detail and he was able to see that the Defendants had in fact disclosed quite a few documents.  This is what was said at 62K-T and 63B-C:

“Plaintiff:  He did not give it to me though he has disclosed it.  How — I got a pile but that was not included in it.

Court:        Then you — should ask him for the documents but not ask him to disclose.  He has already disclosed them.  He just did not show them to you.  These are two different procedures.  But you have messed things up and it is so confusing.  You are ignorant of the whole procedures.  No, it matters not if you are ignorant but the question is that you have got to understand.  Do you understand?  Now I am telling you that when you ask the other party to give a discovery, the other party is only required to give you a list.  After a list is given, then you are entitled to see them.  If he does not allow you to see, he then says — then you may say that he does not show you but not he does not disclose.  You cannot establish this item of yours.  Well, if you make such an application, you are wasting a lot of your time.  Well, I think today, we cannot possibly deal with everything in your summons today.  You have 8 items here, right?

Plaintiff:    Yes”

37.The enquiry then proceeded with the Master trying to grasp the detail and Mr Wu coming in to help the Master.  Pages 63 to 65 relate to this.  By now the Master had got rather irritated because it appeared to him that in part the application for specific discovery was misconceived.  It appeared that the Defendants could show that they had gone on affidavit to say that some of the documents that Madam Chau was asking for did not exist.  The Master then had this unhappy exchange, 65K-66E:

“Court:      Well, he has two grounds.  One is that it has no relevance to this case.  The other is that there were no such documents.  Do you have any evidence to prove that those documents did exist?

Plaintiff:    (No audible reply).

Court:        Chau Siu Woon, I think it is quite improper.  How can I hear your case when you act like this?  Right?  I have asked you a question and yet I do not get an answer from you even when I have waited for a minute or so.  Well, now I say this to you.  The other party said that there was no such document. —

Plaintiff:    No, it is very noisy next door. —

Court:        It is very noisy outside, right?

Plaintiff:    Yes

Court:        Nothing can be done regarding the one outside.  You go out to tell him/her to keep quiet.  We have no control over him/her.

Plaintiff:    No, I am just informing you. —

Court:        Yes.

Plaintiff:    — Since you said that, I therefore said that to you.  I am not asking him/her —

Court:        It does not matter.  It does not matter.  Well, if you say that since the one outside is so noisy that you cannot proceed —

Plaintiff:    No.”

38.It is clear that the Master had become rather irritated by now.  Madam Chau appeared to him not to be answering a question that he had put to her.  She said it was noisy outside the court and she could not hear him.  He told her that she could go outside and tell them to be quiet.

39.From this Mr Wong is able to produce a submission that by telling her to do so, the Master had deprived her of the right to be present throughout the hearing.  Firstly, she did not leave the court so that sort of point cannot even begin to get off the ground.  The question of the Master’s testiness I will leave over to when I come to an overall conclusion about his conduct of the hearing.

40.The Master then returned to giving Madam Chau advice because of her obvious difficulty in reading English.  This part has also been relied on by Mr Wong as part of his charge of racism.  I have already said what I wish to about this complaint.  What is clear from the passage below is that it had by now become clear to the Master that little more progress could be made and that the documents would have to be translated in time for the next hearing.  Of themselves it seems to me that these sentiments were perfectly laudable and that was the course that he decided on.  I set out the passage here:

“Court:    Hmm, hmm.  Well, Chau Siu Woon, I think I will give you a piece of advice.  Now you — deal with your case in this manner, you — I to — as at today, you have come to this stage and it has not gone very far and yet it is already very difficult for you.  If you were to hear this case, how would you have heard it?  Well, I think what is most important to you is that the person next to you may not be able to help you like this at the hearing proper of this case.  You have to be psychologically prepared for that.  You have to be well prepared.  Do you understand?  That means at the trial you have — to grasp the case.  I think, all your affidavit and pleadings with your signature appended are written in English, you may not be able to understand English.  You’d better ask the person who prepared the pleading for you to translate all of it into Chinese and you get a copy of it.  And you have to understand each and every paragraph.  Only then can you have a grasp of your case.  I suggest you prepare (the documents) in Chinese in future.  Otherwise, you will have a difficulty even if you say, ‘Hey, (to prepare) in Chinese I may still need the help of my friend to sort out the legal problem or others and he/she uses English.’  It does not matter that he/she uses English.  He/she just gives you an opinion. But if he/she speaks Chinese, he/she can give you the opinion in Chinese.  So it can be written in Chinese.  It does not matter even if he/she wrote it in English, wrote in English, wrote in English.  It can be translated into Chinese and a copy of it can be given to you.  Then you can file it in Chinese into court.  The other party may also use — that is, reply to you in Chinese.  Then it will be much more convenient if your case goes to trial.  Otherwise, what happens then?  Your document, just take the pleading, it runs to 50 pages.  How are you going to give an account to the court?  How would you be able to remember so much material?  You would not be able to remember so much.  Right?  Well, of course, this is my opinion, I tell you this not just for the sake of your case but also for the sake of the court in hearing — the — more smoothly and more conveniently.  Otherwise, you will have to waste a lot of court’s time.  Say for instance regarding these documents, they are all in English.  What can you do by then since you do not understand them?”

Shortly after this, with translation of the court documents ordered, the hearing tailed off into the inevitable part-heard adjournment. 

41.At the resumed hearing on 9 November 2006, Mr Wu drew to the Master’s attention the fact that a complaint had been laid against him to the Bar Council.  Mr Wong submits that it was wrong of Mr Wu to have told the Master of this.  It was wrong he says, because by doing so he was attempting to take sides with the Master, against whom a complaint had also been lodged, in his case to the Chief Judge.

42.It seems to me that there is nothing in this point as well.  If anything it was proper of Mr Wu to have told the Master this, so that he was aware of everything that had gone on since the hearing before him in March.  In any event, I am perfectly satisfied that Mr Wu’s motive in doing so did not in anyway encompass the improper motive of attempting to curry favour with the Master by presenting himself to be in the same boat, both having had complaints lodged against them.

43.Another matter raised by Mr Wong that I want to deal with concern the effect of the complaint against the Master to the Chief Judge.  Mr Wong submits that this complaint having been lodged and acknowledged by the Chief Judge, the Master should have, in such circumstances, done the decent thing and stepped aside.  Mr Wong goes as far as saying that because the Chief Judge has acknowledged the complaint that this must carry the implication that there is something in it.  This is a false point.  The Chief Judge is bound to enquire into all complaints of this type.  He acknowledged receipt of the complaint and is holding over its investigation until after the outcome of this matter.  There is no other significance in its acknowledgement.

44.Equally untenable is the submission that just because a complaint has been made a judge should discharge himself.  If that is right, disreputable parties could use this system of complaint as a crude form of forum shopping.  If a party did not care for a particular judge, it could remove him from its case by complaining against him.  Having said that I do not exclude the possibility that a very limited range of complaint, and I cannot think of any at the moment, might require recusal even before the complaint had been considered on its merits.  All I can say is that this is not one that required the Master to step aside before the conclusion of the hearing, this appeal or any findings that the Chief Judge may care to make on it after he has fully investigated it.  I reject this submission as well.

45.Mr Wong has addressed me on a very wide-ranging basis which includes a criticism of the Hong Kong Judiciary’s Code of Conduct.  Paragraph 17 of the Code recognises that a judge may sometime “pick the brain” of his colleagues.  Mr Wong has submitted that this may affect the independence of judges by allowing one judge to influence the thinking of another.  What he particularly has in mind is that now that a complaint has been lodged against the Master, there is a risk that the Master will then discuss the case as a whole with his colleagues who may well cause him to take a particular course, which he had perhaps not previously considered, in dealing with the rest of summons on the adjourned hearing, as well as in the way that he finally delivers his ruling on it.

46.The criticism of the Code that Mr Wong has made fails to have regard to the rest of paragraph 17 which emphasises that the judicial decision ultimately must be that of the individual judge.  The complaint based on the Code is a bad one in my judgment, the Code being one that tries to reflect best practice amongst the world’s leading common law jurisdictions, suitably adapted for the Hong Kong situation.

47.As to whether, now that a complaint has been lodged against him, the Master will in someway adjust his conduct of and decision in the case can only be a matter for meaningless speculation.  At the end of the day one must trust judicial officers to decide cases by being loyal to their judicial oath.  For these reasons, I do not consider that the fact that a complaint has been laid against him nor that the Master may care to pick his colleagues brains, as contemplated in the Code, can afford a reason for saying that he should recuse himself.

Conclusion

48.Mr Wong has taken every conceivable point in this appeal and others which had not really struck me as having any bearing on his application for the Master’s recusal.  At the end of the day, I have had to stand back from all of this and look at the transcripts of 24 March and of the 9 November and ask myself whether a reasonable, well informed observer might say to himself that this judicial officer has by what he has said and done in the course of the hearing of 24 March in particular, although I have also had regard to 9 November to see if he has displayed bias on that occasion as well, displayed a prejudice or bias against Madam Chau so that there is a risk that he will not fairly hear and decide on the issues raised in her summons.  I think not.  If criticism can be levelled against the Master, it is that he had not been able to adequately read into the case beforehand and much, if not everything, that followed was the result of this.  It resulted in him having to investigate what the summons was all about as he went along.  His difficulties were compounded by the fact that Madam Chau, and this is not a criticism of her, could not really get over in an orderly and logical way what she was asking for.  Had she been represented by counsel it is very likely that the substance of her summons would have appeared from the skeleton argument and the prepared bundle so that, even if the Master had not got into the detail of the case beforehand, it is very likely that he could have got on top of the issues with counsel’s assistance.

49.As a result, as I read the transcript,the Master became frustrated with Madam Chau.  He realised that the matter was a fairly complex one, with a lot of material involved and that she was not able to help.

50.There are passages in the transcript would show a certain impatience on his part but in my view at no time had he displayed a hostility toward Madam Chau or bias against her.  Whilst on occasions he may well have adopted an authoritarian attitude, his conduct was well within the parameters of acceptable standards.  For much of the time he expressed concern that Madam Chau would not perhaps be able to give of her best because she could not read the English documents sufficiently well and he also provided explanations to her of what an application such as hers involved.

51.In the end, I am afraid to say that this was an inefficiently conducted hearing for the reasons that I have given in the proceeding paragraphs of this part of the judgment, but it is no more than that.  Every judge or Master will on occasions have a bad day in court and perhaps this was one of them for the Master on this occasion.  I expect he may agree with that assessment but, to then try an elevate this, as Mr Wong has as demonstrating bias in the way that he has argued is to misrepresent the situation in a most unacceptable way.  The conclusion that Mr Wong has asked me to arrive at in assessing the Master’s conduct simply has no basis whatsoever.  This is an appeal which should never have been brought.  I deprecate the way in which it has been conducted in the strongest possible terms and it must stand dismissed.

Costs

52.Costs will follow the event.  These will be to the Defendants in any event.  The order will be an order nisi. 

53.I regret that Madam Chau has received the advice that she has been given as to the prospects of her appeal.  It has served to give her false hope.  Although the order for costs is an order made against her, I hope that those advising her will consider their position vis-à-vis her liability for their fees very carefully before presenting her with their fee note.

Derry Wong, instructed by Messrs Ha & Ho, for the 1^st Plaintiff

The 2^nd Plaintiff, absent

Paul Wu, instructed by Messrs Au Yeung, Cheng, Ho & Tin, for the 1^st, 2^nd, 3^rd, 4^th, 5^th and 6^th Defendants