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

CACV 164/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 164 OF 2007

(ON APPEAL FROM HCA 7032 OF 1999)

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BETWEEN

Before : Hon Cheung and Yuen JJA in Court

Date of Hearing : 24 and 25 March 2010

Date of Judgment : 19 April 2010

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J U D G M E N T

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Hon Cheung JA :

The appeal

1.This appeal is concerned with the principles on the circumstances in which a judge should withdraw from hearing a case. Deputy High Court Judge Carlson dismissed an appeal from the 1^st plaintiff against Master Lung’s refusal to recuse himself from hearing an application by her. The 1^st plaintiff now appeals.

Background

2.The 1^st plaintiff commenced the present action in 1999 against the defendants seeking, among other things, return of the deposits she had paid in respect of the purchase of properties which are commonly known as ‘New TerritoriesSmall Houses’ together with damages. By a summons dated 9 September 2005 the 1^st plaintiff sought a further and better list of documents and specific discovery of documents against the defendants (‘the discovery application’). On 24 March 2006 the 1^st plaintiff attended before Master Lung. The hearing was not completed within time and had to be adjourned. After the adjournment, the 1^st plaintiff sought legal advice and was advised by her lawyer to lodge a complaint to the Chief Judge of the High Court of misconduct of the Master. The Chief Judge’s investigation of the complaint has since been withheld pending the determination of this appeal. At the resumed hearing of the discovery application on 9 November 2006, the 1^st plaintiff who was then legally represented, applied for the Master to recuse himself. The Master refused. As there was insufficient time left to deal with the discovery application, the matter was again adjourned.

3.The 1^st plaintiff then lodged an appeal against the Master’s refusal to recuse himself. In January 2007, the matter came before Deputy High Court Judge Carlson for hearing. After a three day hearing the Judge gave judgment on 17 April 2007 dismissing the appeal.

4.The 1^st plaintiff then lodged an appeal against the judgment on 8 June 2007 but only applied to list the appeal for hearing on 24 September 2009. The 1^st plaintiff explained that she had suffered from depression after the judgment of the Judge and had to seek medical treatment. She said that after years of deliberation she decided to seek redress and list the appeal for hearing. The appeal was then heard by this Court.

Grounds of Appeal

5.The Notice of Appeal dated 7 June 2007 filed by the 1^st plaintiff in person is in Chinese and consisted of 15 grounds of appeal. The Notice annexed three written submissions of Mr. Derry Wong,counsel for the 1^st plaintiff before the Judge. A 28 page document entitled ‘Supplemental Grounds of Appeal’ consisting of 31 grounds of appeal drafted by Mr. Wong was filed on 24 February 2010. This document further annexed another 35 page document entitled ‘Detailed Grounds of Appeal’. A written skeleton submission consisting of 80 pages was lodged by Mr. Wong for this appeal. It was reduced to 15 pages at the direction of this Court.

Guarantee of Fair hearing

6.Despite the length of the grounds of appeal and submissions, the core of the appeal consists of a simple but fundamental and important issue, namely, whether the 1^st plaintiff had received a fair and impartial hearing before Master Lung. A fair and impartial hearing by the Court without discrimination is 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. As the authorities recognized these guaranteed rights have long been part of the common law. The principle of fairness under common law which is previously described as natural justice clearly covers this area as well. Any complaint by a litigant that he has not received a fair hearing is a serious one and must be considered with the utmost care by this Court.

Principles on appeal against discretion

7.The refusal by a judge to recuse himself from hearing a case is an exercise of discretion. The Master had exercised his discretion. An appeal from the Master to the Judge is by way of rehearing anew of the application to recuse. The dismissal of the appeal by the Judge means that he had exercised a discretion of not ordering the Master to recuse himself from hearing the case. On an appeal to this Court in respect of a discretionary remedy, the principle is that this Court is not to exercise the discretion afresh and will only overturn the decision and exercise the discretion afresh if the Judge had proceeded on wrong principles or that his exercise of discretion was plainly wrong.

Bias

8.Traditionally the recusal of a judge is pursued under the ambit of bias. The absence of bias is, after all, an aspect and illustration of the fair hearing requirement. If bias is established then clearly the fair hearing provision is engaged.

Actual bias

9.Bias may be in the form of actual bias or apparent bias. Actual bias means the decision maker was influenced by either partiality or prejudice and it has been demonstrated that he was actually prejudiced; actual bias is a conclusive vitiating factor : see Fordham in Judicial Review Handbook 5^th Ed, Para 61.2.1. In In re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700, Lord Phillips MR (as he then was) stated :

‘ [38] …… The phrase “actual bias” has not been used with great precision and has been applied to the situation (1) where a judge has been influenced by partiality or prejudice in reaching his decision and (2) where it has been demonstrated that a judge is actually prejudiced in favour of or against a party.’

10.But as Fordham explained at Para 61.2, the shortage of relevant cases on actual bias reflects the fact that actual bias is rare, difficult to prove and largely redundant given the other grounds of bad faith, improper motive and apparent bias. As Lord Bingham in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at 471 observed,

‘ [3] …… The proof of actual bias is very difficult, because the law does not countenance the questioning of a judge about extraneous influences affecting his mind; and the policy of the common law is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists’

The reference to ‘a real danger of bias’ by Lord Bingham is, of course, a reference to apparent bias.

11.Nonetheless Mr. Wong had boldly taken on the task of saying that the Master was guilty of actual bias. He relied on the hostility and partiality of the Master against the 1^st plaintiff. These are also the grounds for his case on apparent bias.

Apparent bias

12.The relevant test for apparent bias has been reviewed by the Court of Final Appeal in Deacons v. White & Case Ltd Liability Partnership & Others (2003) 6 HKCFAR 322 which took into account the development of the English law in this area in cases such as Director General of ‘Fair Trading’ v. Proprietary Association of Great Britain [2001] 1 WLR 700 and Porter v. Magill [2001] UKHL 67. The test can be stated as follows : The Court must first ascertain all the circumstances which have a bearing on the suggestion that the Judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.

Fair-minded observer

13.Further as observed by the House of Lords in Helow v Secretary of State for the Home Department and another [2008] 1 WLR 2416, per Lord Hope of Craighead at 2418,

‘  2  The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument.  She is not unduly sensitive or suspicious, as Kirby J observed in Johnson v Johnson (2000) 201 CLR 488,509, para 53.  Her approach must not be confused with that of the person who has brought the complaint. The “real possibility” test ensures that there is this measure of detachment. The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.’

Other grounds

14.But these are not the only grounds that were relied upon by Mr. Wong. He challenged the integrity of the Master and complained of language and racial discrimination on his part. He complained of the lack of preparation by the Master and his ability. He also relied on improper motive, malice and bad faith on the part of the Master. Improper motives are associated with a power being exercised fraudulently or dishonestly,malice happens when the decision maker is motivated by personal animosity towards those who are directed affected by the exercise of power : de Smith’s Judicial Review 6^th ed, para 5-081. An example of bad faith is vindictiveness: R v. Derbyshire County Council ex parte Times Supplements Ltd (1990) 3 Adm LR 241 at 263A.

15.As pointed out by Fordham at Para 52.1, bad faith is a strong accusation not lightly to be alleged and which is difficult to prove. It is also usually unnecessary given more familiar alternatives such as bias and improper motive. In the context of the tortious action of misfeasance in public offence, of which improper motive is an essential ingredient, the term is used synonymously with malice and bad faith : de Smith’s Judicial Review, 6^th Ed, para 19-048.

16.These are severe charges of misconduct of a public officer and they are said to have occurred at a hearing which lasted about one and a half hours and is not yet concluded. This sets the tone of the application to recuse.

Focus of the Judge

17.The issue of bias, specifically apparent bias of the Master was the focus of the Judge. I will follow the same approach. My view is that if the 1^st plaintiff cannot even establish apparent bias as found by the Judge, then she cannot possibly succeed on actual bias or the other grounds.

The Judge’s test

18.The test formulated by the Judge is as follows :

‘ 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.’

19.The Judge had used the words ‘reasonable, well informed observer’ and not ‘fair-minded observer’. He also used the word ‘risk’ instead of ‘real possibility’ of bias. Mr. Wong while accepting that the reference to ‘reasonable man’ is the same as the ‘fair-minded observer’ (see the observation of Kirby J in Johnson v. Johnson (2000) 201 CLR 488 at pages 507 at [52] on the attributes of a ‘fictitious bystander’), however, argued that the Judge adopted the wrong test by using the word ‘risk’ instead of ‘real possibility’ of bias. He argued that it is more difficult to prove ‘risk’ than ‘real possibility’ of a Court being biased.

20.I disagree with the latter point. If anything, it is easier to prove a ‘risk’ than a ‘real possibility’. In any event, while the Judge may not have used the words ‘real possibility’, my view is that he had treated the two forms of words as the same and had not adopted a wrong test for apparent bias.

The Judge’s conclusion

21.After reviewing the submissions and referring to the test, the Judge asked himself whether there would be a risk that the Master had displayed bias against the 1^st plaintiff so that the Master would not fairly hear and decide on the issues raised in the discovery application. He concluded that,

‘ 48.  ….I think not.  If criticism can be leveled 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 (i.e. the 1^st plaintiff), 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 realized 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.’

Was the Judge plainly wrong?

22.The task of this Court is to see whether the Judge’s conclusion was plainly wrong in his assessment of the issue of bias. I will address two of the more serious complaints by Mr. Wong against the Master first. They are in relation to the issue of integrity of the Master and whether he had committed language and racial discrimination against the 1^st plaintiff.

Integrity

23.The specific issue relied upon by Mr. Wong is in respect of what the Master said about the reading time he had on the discovery application. What happened at the hearing was that the 1^st plaintiff attended in person before the Master assisted by a friend with the permission of the Master. Her affirmation in support of the discovery application was a relatively short one of eight pages but the exhibits contained 150 pages. The 1^st Plaintiff had also filed a 56 page Amended Statement of Claim. Shortly into the hearing the following exchange took place between the Master and the 1^st plaintiff (as translated) :

‘ 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 lengthy.  But I do not find it necessary to read your pleading in full.  You tell me very briefly how your case arose.’

24.Mr. Wong in his written submission to the Judge submitted that,

‘ 3. Judicial office duties vis-a-vis the citizenry include sufficiently reading papers and evidence filed in court and reading up the law relevant to considerating the relevant application or case to be heard and decided by the relevant Judge or Master in advance; and not toblame others when he had chosen not to do so.  It also includes the duty not to represent to the public that he or she is under any time restrictions on preparation for the hearing of an application or case before him unless it is absolutely true and he had been authorized so to disclose, which disclosure must be commensurate with the official policy of the Judiciary as has been made known to the legal profession and the public.  To have told an untruth in that respect to the public by invoking the name of the Judiciary expressly or by necessary implication is a very serious breach of judicial duty.  To have done so in order to excuse oneself in not reading papers and evidence filed in court is, in addition to being very cogent evidence of bias against the 1^st Plaintiff who was making the application, an even more serious breach of judicial duty that must be investigated and, where appropriate, the relevant Judge or Master can be removed under Article 89 of the Basic Law.  “Obviously, a failure to work, if sufficiently pronounced, would be ground for dismissal,….” ’  (emphasis added)

25.At the hearing below when the Judge assured Mr. Wong that there was no such restriction placed by Judiciary on a Judge, Mr. Wong’s response was :

‘ But at least – and I put it on the condition that if there is going to be an official answer that there was no such restriction as such, then when he said he had only one hour – and subject to interpretation of course either way – one possible interpretation was, or is, possibly that he is lying.  And I stand by that because I don’t put that forward as a fact now.’  (emphasis added)

26.The stand of Mr. Wong was clear : he was suggesting that the Master was telling an untruth and possibly lying when he said that he only had one hour of reading time. Mr. Wong submitted before us that he proceeded on the basis of what the Judge told him, namely, that the Judiciary did not impose on Judges any restriction on reading time. But even on that basis why should it be said that the Master was possibly lying? As pointed out by this Court at the appeal it might be the Master did not have enough time to read the papers for other reasons such as his workload or sudden deployment of cases. It is unacceptable for counsel to attribute the worst possibility to the Master when there were other innocuous possibilities.

27.I fully support counsel’s duty to act fearlessly in advancing the interest of his client, but when counsel chose to cast imputations on the integrity of a Judge, or for that matter, any person, then he should do so with circumspection and should only put forward the case when he has proper evidence to lay the charge. This is not a word game. To say that his words were being qualified and that he was merely referring to the ‘possibility’ does not lessen the seriousness of the charge on the imputation of the Master’s integrity which clearly could not be substantiated in the present case. This ground of complaint should not have been brought at all and regrettably, given the time for counsel to reflect on this matter since the hearing before the Judge, this ground was maintained in this appeal.

28.As pointed out at the beginning of the judgment Mr. Wong was relying on improper motive, malice and bad faith on the part of the Master. The grounds also contain imputations on the integrity of the Master but since these grounds are bound up with instances of hostility and impartiality, I will not separately addressed this issue here.

Discrimination : language and race

29.The second matter is in respect of language and racial discrimination by the Master. The law prohibits discrimination against a litigant by reason of, among other things, language or race. Discrimination occurs when a person is treated differently from the like and there is no legitimate justification for the difference in treatment. The 1^st plaintiff is Chinese who, by her own admission, is not conversant with the English language. The Amended Statement of Claim which she said was drafted by a lawyer friend was in English. Her affirmation which was in English was obviously also drafted by a lawyer or someone with legal knowledge. The exhibits were mainly documents in English as well. There was no interpretation clause in the affirmation. Although the 1^st plaintiff said she understood the content of these documents, she had to rely heavily on a friend at the hearing before the Master to help her. It was in such circumstances that the Master expressed his concern that she might not be able to understand or present her case properly and directed that, with the consent of defence counsel, the court documents should be translated into Chinese and the proceedings be conducted in Chinese at the adjourned hearing.

30.This order was made notwithstanding the fact that, the defendants themselves have the legal right to choose the English language to conduct their case. The absurdity of accusing the Master of language discrimination is apparent. And from that Mr. Wong’s submission that such language discrimination may ‘indirectly lead’ to racial discrimination is equally unacceptable. Either the Master had committed racial discrimination or he had not. He clearly had not in this case.

31.What was relied upon by Mr. Wong in support of his complaint on language and racial discrimination was that the Master had at one stage directed the 1^st plaintiff to explain the content of one paragraph of her affirmation to him without the assistance of her friend. In my view what the Master had said was not to treat the 1^st plaintiff differently by requiring her to prove her English ability but rather to press the point, may be too emphatically, that the 1^st plaintiff might not understand fully the court documents in English and that it was in her interest to have them in Chinese which was equally acceptable to the Court. The further complaint that the Master had in so doing deprived the 1^st plaintiff of the assistance of a ‘McKenzie’ friend, which is a commonly accepted and frequently adopted practice in our Courts with litigants who are not legally represented, is equally off the mark.

Preparation of case and ability

32.In the modern Hong Kong Judiciary, Judges are expected to and do read in advance the case before a hearing but there may be rare occasions like the present one when the Master had not prepared the case before hand. It is a well known fact that Masters of the High Court have an extremely heavy workload. I agree with the Judge’s observation that the Master had not conducted the hearing efficiently at the beginning but did improve and was able to address the issues as he became more familiar with the case.

33.The hearing before the Master lasted for one and a half hours. The whole of what was said at the hearing must be considered and not simply those passages at the beginning in order to show the lack of preparation or knowledge of the case by the Master. After the initial exchange on matters not relating to the discovery application, the Master had gone into the substance and addressed five of the eight categories of the documents sought to be specifically disclosed before the hearing had to be adjourned.

34.If the Master had adopted the wrong principles on specific discovery and reached an erroneous decision then the appeal system is there to correct his mistake. In this long saga the 1^st plaintiff has still not been able to address this issue because of the approach she has taken on the discovery application.

Partiality : favouritism towards the defence

35.In terms of the complaint about the Master’s partiality, I will first address the issue of his favouritism towards the defence. The Master considered that the Amended Statement of Claim was complicated and asked counsel for the defence to summarise the 1^st plaintiff’s case for him. I do not regard this as an indication that he only listened to the defendants and showed favouritism towards them. Rather this occurred because the Master was not familiar with the case at the beginning of the hearing. The 1^st plaintiff’s case is not a complicated one. She bought ‘New Territories Small Houses’ and paid deposits for the purchase. The houses were not built and she sought the return of the deposits. She relied on breach of contract, misrepresentation and illegality as her causes of action. The latter two came into play because of the restriction imposed on indigenous villagers in the New Territories who have the traditional right to build ‘Small House’ to dispose of their interest in these properties. Clearly the Master was not assisted by the verbosity of the pleading. 35 pages of the 56 page Amended Statement of Claim were in respect of the 1^st plaintiff’s claim while the remaining 13 pages before the prayer were in respect of the 2^nd plaintiff’s claim who had since settled her claim with the defendants.

36.The 1^st plaintiff sought specific discovery because she said the documents she sought but not disclosed by the defendants have either been referred to or mentioned in documents that were disclosed or exist by implication. They related to, among other things, the application for permission to build the Small Houses. The disclosed documents were contained in an exhibit to the 1^st plaintiff’s affirmation which consisted of 139 pages. The affirmation, however, did not even say that the documents relied upon for specific documents could be found in that exhibit. The description of the documents in the exhibit merely stated ‘various documents’ without providing an index of their content. The pages in the exhibits were not numbered. While the affirmation had stated that a document sought to be discovered could be found by reference to another document, there was no cross reference of those documents in the exhibit. While the issues of the 1^st plaintiff’s claim and the nature of the discovery application may not be complicated, it was the way in which the pleading and the papers were presented which obscured a quick resolution of the issues. It is in this context that the Master remarked that he could not possibly check carefully the documents and their content and that the 1^st plaintiff must tell him which document contained reference to the specific documents that were sought to be discovered. The 1^st plaintiff clearly was unable to assist the Master in that regard. This became the ground of complaint that the Master had refused to read the 1^st plaintiff’s affirmation.

37.As to the complaint that the Master only chose to read the defendants’ affirmation, the 1^st defendant had filed an affirmation opposing the application which was referred to by the Master when he was addressing the eight categories of documents that were sought to be discovered. Mr. Wong first submitted that the 1^st defendant did not say that he was authorised by the other defendants to make that affirmation on their behalf. While the affirmation was only made by the 1^st defendant, its content referred to documents made by other defendants, and all the defendants were represented by the same counsel. The Master clearly could treat the affirmation as one coming from all the defendants. Counsel for the defendants at the hearing before the Master (not their present counsel) accepted that the documents sought were not disclosed but relied on the 1^st defendant’s affirmation which stated that either the 1^st defendant did not have the documents or that there were some other documents relating to the building of the Small Houses but they could no longer be located or that the documents sought did not exist or were irrelevant to the issues. While the usual practice is for the respondent to a specific discovery application to oppose it without an affidavit, it is clearly permissible to answer the application by an affidavit read at the hearing of the summons : see paragraph 24/7/1 of the Hong Kong Civil Procedure 2010. This is what had happened before the Master and I see no reason why he should not read this affirmation in order to deal with the application.

38.It was said that the Master acted as the defence’s advocate when he said that discovery might be refused if it was oppressive which was not a ground relied upon by the defence. This was raised by the Master at the early stage of the hearing when he outlined the principles on discovery before he became more familiar with the case. I do not see this as an indication of favouritism towards the defence.

39.It is said that the Master condoned the prejudicial remarks made by defence counsel when he informed the Master that the friend of the 1^st plaintiff who was assisting her was involved with another case. Mr. Wong submitted that the purpose of the remark was to create an adverse impression that the friend had her own interest to serve and in turn it would create an adverse impression that the 1^st plaintiff together with her friend had some ulterior motive to serve. Mr. Wong submitted that the Master had acquiesced in counsel’s remark by his silence. In my view the Master was not required to express his consent or dissent whenever something was said by counsel. This is a submission that should never have been made. To even raise this point reflects badly on the judgment of counsel.

Hostilityagainst the 1^st plaintiff

40.As to the complaint of the Master’s hostility and rudeness towards the 1^st plaintiff, it is plain that the Master had at times become irritated and at one time even lost his temper when the 1^st plaintiff did not make a timely response to his question and claimed that she was distracted by the noise outside. From that a most unmeritous submission was made that when the Master responded by saying he could not stop the noise and had intemperately told the 1^st plaintiff that she could go and stop the noise outside, he was depriving the 1^st plaintiff of her right to be present at the hearing. It was no more than an outburst of temper. The Master had also used two extreme examples of the 1^st plaintiff being threatened with violence which in the context must be a reference to the contract for the purchase of the properties being vitiated by duress when the Master was trying to ascertain from the 1^st plaintiff the basis of her claim.

41.In my view Master Lung’s behaviour had more to do with being exasperated for not getting proper assistance from the 1^st plaintiff than harbouring any ill will or prejudice against her.

42.One, of course, must not try to lessen the impact of such words and the manner it was said on a lay litigant who is not familiar with Court proceedings. This case is a cautionary reminder of the high standard that is expected from a Judge. But at the same time Kirby J observed in Johnson at paragraph [53] on how a fair minded observer would assess the situation :

‘ …… Such a person is not a lawyer (118).  Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided (119).  Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances.  The bystander would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers (120).  The bystander must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted (121).  The fictitious bystander will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality (122).  Acting reasonably, the fictitious bystander would not reach a hasty conclusionbased on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context (123).  Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious (124).’

43.I further do not find that the Master had pressurized or threatened the 1^st plaintiff when he mentioned the time allotted for the application and that she had to bear the consequence for her arrangement. This was said at the beginning of the hearing when he was not familiar with the case and all he meant was that the matter had to adjourn if it would not finish that day.

44.The 1^st plaintiff had conducted a search of the Court file and found that in the summons for the discovery application a cross was placed against five of the eight categories of documents sought to be disclosed. An extra-ordinary submission was made that the crosses were placed on those items even before the hearing before the Master was held. This assertion could only have suggested prejudging on the part of the Master when there was no evidence as to when such crosses were made. Such a submission should never have been made.

Complaint to the Judiciary

45.Mr. Wong began his recusal application before the Master by saying that the reason for the application was that a complaint against his misconduct had been made to the Chief Judge. Mr. Wong now accepted that such a complaint would not by itself disqualify the Master from hearing the case. I agree with the Judge that if it were otherwise, the complaint procedure could be manipulated by a litigant who wants to get rid of a Judge that he does not like. The Master had obviously considered the complaint when he decided that the allegations had not been made out and refused to step down. I see nothing wrong with that.

46.Mr. Wong relied on the well established principle in Locabail (UK) that where the judge is shown to have an interest in the outcome of the case which he is to decide or has decided, he is automatically disqualified.

47.While the Master obviously has an interest in the outcome of the complaint lodged against him, there is no suggestion that he has any interest at all in the outcome of the discovery application he was hearing. Certainly it has not been suggested that, somehow, the complaint against him would have an effect on the outcome of the discovery application.

Lack of fair hearing not established

48.Looking at the matter in the round, I agree with the Judge’s assessment of the case. The 1^st plaintiff was not able to establish apparent bias on the part of the Master let alone actual bias. It is also clear from my analysis that although the Master may regret his outburst of temper, there was absolutely no improper motive, bad faith or malice involved. These allegations must be refuted in the strongest terms. The 1^st plaintiff was not deprived of a fair hearing before the Master. Accordingly the appeal must be dismissed.

49.It is regrettable that four years after the discovery application the 1^st plaintiff has still not concluded her pursuit for the documents, let alone her claim for the recovery of money which was lodged eleven years ago. To persist with the recusal application despite two failed attempts must be one of the worst examples of satellite litigation that has gone off the tracks. Looking at the matter in the most measured way, I do not find the necessary level of detachment and judgment that one would expect from the 1^st plaintiff’s legal advisers on how the matter should be properly approached in the interest of the 1^st plaintiff. In the end much time and costs were wasted on a matter which has no impact on her claim but had only further delayed her substantial claim.

Costs

50.Costs should follow the event and the 1^st plaintiff is to bear the costs of the appeal of the defendants.

51.I have considered whether this is an appropriate case for the 1^st plaintiff’s solicitors to show cause why they should not bear the costs of the appeal personally. However, in the light of the 1^st plaintiff’s assertion that she made the decision to restore the appeal and her total support of her counsel (said by her at a direction hearing of this Court before the appeal), I will not make such an order.

Hon Yuen JA :

52.I agree with Cheung JA’s judgment and order.

Mr. Derry Wong, instructed by Messrs Ha & Ho, for the 1^st Plaintiff
Mr. Francis Yip & Mr. James Wong, instructed by Messrs Choi & Liu, for the 1^st to 6^th Defendants