Secretary for Justice v. Choy Bing Wing

HCMP 4694/2003, HCMP 129/2007,
CACV 11/2004 and CACV 193/2005

HCMP 4694/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4694 OF 2003

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BETWEEN

AND

HCMP 129/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 129 OF 2007

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BETWEEN

AND

CACV 11/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 11 OF 2004

(ON APPEAL FROM HCMP NO. 4694 OF 2003)

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BETWEEN

AND

CACV 193/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 193 OF 2005

(ON APPEAL FROM HCMP NO. 129 OF 2007)

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BETWEEN

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(Heard Together)

Before: Deputy High Court Judge Carlson in Chambers

Date of Hearing: 22 January 2010

Date of Ruling: 22 January 2010

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R U L I N G

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1.This is an application by Mr Bing Choy for me to recuse myself from hearing a number of summonses brought by the Secretary of Justice to make a charging order nisi absolute, and Mr Bing Choy really has two grounds. Some years ago now I was the judge at first instance in a case called Ng Yat Chi v Max Credit which involved Mr Bing Choy, in which I made what is known as a Grepe v Loam order, or I think is now referred to as a Restricted Application Order, which had the effect of preventing him from making any applications to the court without first obtaining the leave of a judge of the Court of First Instance. He appealed that decision. I was upheld in the Court of Appeal and he renewed his appeal to the Court of Final Appeal. In its judgment the Court of Final Appeal upheld the original decision made by me and affirmed the judgment of the Court of Appeal.

2.From that, as I understand Mr Bing Choy, he says that where I ruled against him and having made such a strong order against him, to hear these applications today would not be right because it would give the appearance of bias and that any well-informed and reasonable observer at the back of the court listening to these proceedings might say that it simply would not be right that I should hear the matter.

3.But he goes further than that inasmuch as he is now saying that I am not an independent judge. He says I am a judge who would do my master’s bidding, whoever that may be, that my mind is shut and that if allowed to hear these applications for a charging order absolute, I would not bring an independent mind to bear and for that reason as well I should discharge myself.

4.I think that I am not disposed to discharge myself in this matter.

5.So far as the original judgment some years ago now, that was a matter which dealt with completely different issues to what I have before me today, which really is a rather limited jurisdiction and for that reason I do not think it can properly be said that a well-informed neutral observer might say that if I were the judge today, having been the judge on that previous occasion, this would somehow give the appearance of bias.

6.On the much more grievous charge that I simply am not fit to be a judge because I am someone who would do his master’s bidding, I am not going to make any further comment about that. I merely reiterate the fact that I am an independent judge who will bring my own judgment to bear on any matter which is before me.

7.And so for all of these reasons, Mr Bing Choy, I am going to refuse your application, and I propose to now go on and hear the application which is for the charging order to be made absolute. Now, I very much hope that you will stay in court and that you will assist me in respect of that, but I would like to hear counsel for the Secretary for Justice first because it is his application.

Louie Wong GC, of the Department of Justice for the Judgment Creditor

The Judgment Debtor in person, present