Read the full judgment text of CACV 164/2007 on BabelCite. This Court of Appeal judgment was delivered on 19 April 2010 before Cheung JA, Yuen JA.
Civil procedure – recusal of judge – apparent bias – actual bias – improper motive – bad faith – malice – language and racial discrimination – integrity of judge – complaint to Chief Judge – appeal from exercise of discretion – 1st plaintiff commenced action in 1999 seeking return of deposits paid for purchase of 'New Territories Small Houses' and damages for breach of contract, misrepresentation and illegality – by summons dated 9 September 2005, 1st plaintiff sought further and better list of documents and specific discovery – at hearing on 24 March 2006 before Master Lung, 1st plaintiff attended in person assisted by a friend – Master became frustrated with 1st plaintiff's inability to present her case in an orderly manner and expressed concern that she might not understand the English documents – Master directed translation into Chinese for the adjourned hearing – 1st plaintiff lodged complaint against Master with Chief Judge – at resumed hearing on 9 November 2006, 1st plaintiff, now legally represented, applied for Master to recuse himself – Master refused – whether 1st plaintiff received a fair and impartial hearing as guaranteed by Articles 14 and 26 of the International Covenant for Civil and Political Rights as entrenched in Hong Kong by Articles 10 and 22 of the Bill of Rights – whether correct test for apparent bias applied by judge below – the test from Deacons v. White & Case Ltd Liability Partnership & Others (2003) 6 HKCFAR 322 requires the court to ascertain all circumstances and ask whether a fair-minded and informed observer would conclude there was a real possibility of bias – whether use of the word 'risk' instead of 'real possibility' amounted to a wrong test – no, the two formulations were treated as equivalent and 'risk' if anything is easier to prove than 'real possibility' – on appeal from a discretionary remedy, the Court of Appeal will only interfere if the lower court proceeded on wrong principles or the result was plainly wrong – whether Master was guilty of actual bias – no, actual bias is rare, difficult to prove and largely redundant – whether Master displayed apparent bias through hostility and partiality – no, the fair-minded observer test was not satisfied given the Master's impatience arose from the 1st plaintiff's inability to present her case and the Master addressed five of the eight categories of discovery before adjournment – whether Master had improper motive, malice or bad faith – no, the Master's behaviour reflected exasperation at not getting proper assistance rather than any ill will – whether Master committed language and racial discrimination – no, the Master directed translation into Chinese and Chinese-language proceedings, the opposite of discrimination, and the request that the 1st plaintiff explain her affirmation was to press the point about translation, not to test her English – whether imputations on the Master's integrity regarding reading time were justified – no, counsel must act with circumspection when casting imputations on a judge's integrity and there were other innocent explanations for the Master's statement about one hour of reading time – whether complaint to Chief Judge automatically disqualifies Master – no, automatic disqualification would allow manipulation of the complaint procedure by litigants seeking to remove a judge they dislike – the Master had an interest in the complaint but no interest in the outcome of the discovery application – whether solicitors should bear costs personally – no, in the light of the 1st plaintiff's assertion that she made the decision to restore the appeal and her total support of her counsel, no personal costs order was made – appeal dismissed – 1st plaintiff to bear the costs of the defendants – regrettable that four years after the discovery application the 1st plaintiff has still not concluded her pursuit for the documents, and persistence with the recusal application despite two failed attempts is one of the worst examples of satellite litigation that has gone off the tracks.
Legal issues: Correct test for apparent bias on appeal from recusal refusal · Whether Master Lung was guilty of actual bias against the 1st plaintiff · Whether Master Lung displayed apparent bias through hostility and partiality towards the 1st plaintiff · Whether the Master had improper motive, malice or bad faith · Whether the Master committed language and racial discrimination against the 1st plaintiff · Whether imputations on the Master's integrity regarding reading time were justified · Whether a complaint to the Chief Judge automatically disqualifies the Master from hearing the case · Whether the plaintiff's solicitors should bear costs of the appeal personally
Outcome: Appeal dismissed; 1st plaintiff's appeal against Master Lung's refusal to recuse himself dismissed, with the 1st plaintiff to bear the costs of the defendants.
Cited by 1 case