Lu Guo Xiang v. Hong Kong Ming Wah Shipping Co Ltd

HCPI 254/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 254 OF 2006

---------------------

BETWEEN

---------------------

Coram: Mr Recorder P Fung, SC, in Court

Date of Hearing:  29 July 2009

Date of Ruling:  29 July 2009

________________

R U L I N G

________________

1.This is an application by Mr Kwok, counsel for the plaintiff, for me to recuse myself. The matter arose in the following circumstances. Mr Kwok had finished his opening submission this morning. He was about to call the plaintiff as his first witness in the afternoon. Before he did that my attention was drawn by Ms Lau, counsel for the defendant, to some new documents which her clients had just brought to court. It was in that connection that I was alerted to the fact that the defendant was a subsidiary company in the China Merchants Group. I immediately gave notice to the parties that I was acting for two companies who were subsidiaries in the China Merchants Group in a case last year.

2.The case is High Court Action No. 344 of 2007. My two clients were: (1) China Merchants Kin Swiss Transportation Company Limited; and (2) Orienture Industries Ltd. The trial was before Cheung J, who handed down judgment on 20 November 2008. It was only yesterday that I was speaking to my instructing solicitors in that case, who informed me that the mater was still not finalised because there were outstanding issues on the taxation of costs.

3.I asked the parties to consider the matter. After a break of about 30 minutes I resumed the hearing and Mr Kwok made the application for recusal, which is being opposed by Miss Lau. Mr Kwok says that although his client was not saying that I would actually be biased in favour of the defendant, it would be undesirable nevertheless for me to hear the case bearing in mind especially the fact that in various places in the witness statements made by the plaintiff he had made the point that he was being oppressed by large companies and organisations such as the China Merchants Group.

4.In all the circumstances, I have come to the view that justice not only needs to be done, but that it must be seen to be done. In the circumstances of the present case there is certainly room for a layman such as the plaintiff to think that there is a possibility of my being not completely free from bias. That is understandable. I have therefore decided to recuse myself.

5.Furthermore, in light of the latest discovery about salary structure and matters like that, I am not confident that the trial can be completed within the time slot allocated to it. If there is to be an adjournment of the case part-heard over a long period, which is likely, the situation will be very undesirable for all parties concerned.

6.I therefore propose to order that this case be adjourned to be fixed before another judge in consultation with counsel’s diaries. That is my ruling.

Mr Tim Kwok, instructed by Messrs Siao, Wen & Leung assigned by the DLA, for the Plaintiff

Ms Selina Lau, instructed by Messrs Ince & Co., for the Defendant