Choy Bing Wing v. Building Authority of theGovernment of the Hong KongSpecial Administrative Region, China and Others

HCA2458/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2458 OF 2007

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Before: Deputy High Court Judge Au-Yeung in Chambers

Date of Hearing: 4 October 2011

Date of Decision: 4 October 2011

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D E C I S I O N

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1.Mr Choy walks away from court at 10.12 am whilst I was preparing my short reasons for decision. That it his decision of deciding to leave the courtroom and proceedings will continue despite his absence.

2.This is the application by Mr Choy for my recusal. It is not a case based on any actual bias of the court against him. He appears to be relying on a case of apparent bias.

3.In the past Mr Choy had made all sorts of allegations against me whilst I was Registrar.  Those allegations were irrelevant to the present matter before me in this case and I disregard them altogether.

4.In one occasion in the past Mr Choy had been jailed for contempt which he described as arising because of my conduct. That matter had ended already and I believe Mr Choy has served his sentence. Again, that matter is entirely irrelevant to this case.

5.It is not uncommon for a litigant to make comments against a judge, lodge complaints or lose an application before the judge.  That does not mean that when he comes back the judge will be biased against him or her.

6.In this application today I agree with Mr Leung that the proper test to be applied is whether a fair minded and informed observer would conclude that there will be a real possibility of bias in the circumstances.

7.In my view, there is nothing advanced by Mr Choy which would suggest any possibility of bias in the circumstances of this case.

8.This court will administer justice in accordance with the law and decide a case upon the evidence placed upon this court.  Any personal attacks which Mr Choy has launched against me in the past will not be taken into account and therefore I dismiss Mr Choy’s application for recusal.  There simply is no ground to entertain it.

(Discussion re appeal application)

9.Mr Choy as the appellant is absent now so he is taken as not pursuing his appeal against Master Ho’s decision. 

10.Even if he were to pursue that appeal I can hardly see any valid grounds for allowing that appeal.

11.The matter arose out of a charging order nisi taken out by the first three Defendants for a judgment debt owed by Mr Choy in this case.

12.At the application for a charging order absolute Mr Choy and the first three Defendants appeared before Master Ho.

13.Mr Choy asked for Master Ho to be excused on the ground that the learned Master had dealt with certain matters in the present proceedings, in particular, in refusing to release certain documents requested by the Plaintiff in taxation proceedings.

14.Further, Mr Choy relied on his complaint against the learned Master of judicial wrongdoing against the Plaintiff.

15.In that application for recusal, again it was not Mr Choy’s case that there was actual bias on the part of the Master. 

16.In respect of apparent bias the general principle is the same.  The court must ascertain all the circumstances which have a bearing on the suggestion that the judge was biased.  It must 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.  See Chau Siu Woon v Cheung Shek Kong[2010] 3 HKLRD 49.

17.Mr Choy alleged that the Master had ruled against him in a previous taxation and there was a pending appeal against such a decision. The nature of that decision and the relevant considerations were different from those in the present case, which concerned a charging order application.

18.As pointed out by Mr Leung, acting for the first three Defendants, that appeal did not concern the three Defendants in this case.  But in any case, in my view, the fact that a litigant is appealing against the learned Master’s decision in another matter formed no sufficient basis for alleging that the Master was or could be biased against him.

19.As in dealing with the application for my recusal earlier on, the fact that Mr Choy had lodged complaints against the learned Master of judicial wrongdoing again is irrelevant and does not form a sufficient basis for recusal of the Master.  See the case of Yung Mei Chun v Chan Sing Chuen, unrep., HCMP 1178/2009, 15.4.2011.

20.In my view, no fair minded and informed person would conclude that there is a real possibility or real danger that Master Ho could be biased against Mr Choy.  The first part of the appeal relating to recusal of the Master therefore cannot stand.

21.The second part of the appeal concerns the charging order application. 

22.A judgment debt was owed by Mr Choy. The costs owed had been taxed and therefore formed a judgment debt owed by Mr Choy against the Defendants.

23.There is no dispute that Mr Choy has a beneficial interest in the property involved. 

24.The main argument advanced by Mr Choy in his affirmation was that the order on which the judgment debt was based was not final but an interlocutory order under appeal.

25.In my view, the fact that an order was subject to an appeal does not mean it was not final or interlocutory in nature.  Unless and until the judgment has been overturned on appeal the judgment creditor would be entitled to enforce it by way of a charging order. The correct test is simply whether the judgment or order is for an ascertained sum of money and in this case that test is satisfied.

26.The existence of an appeal does not operate automatically as a stay of execution.  There is, in fact, no application for a stay on the part of the Plaintiff.

27.Furthermore, according to the Defendants they have not been served with the relevant documents concerning the appeal, being CACV217 of 2008. 

28.The Defendants therefore queried whether or not the alleged appeal is relevant to the present action or at all.

29.In any case, considering the evidence submitted by Mr Choy, I cannot see him having shown cause as to why the charging order nisi should not be made absolute.

30.I am of the view that the learned Master came to the correct decision in making an order absolute for the charging order.

31.The present appeal, therefore, should be dismissed.

(Discussion re costs)

32.Costs are assessed summarily and allowed at $14,500, to be paid by Mr Choy.

Plaintiff appearing in person

Mr Matthew Leung, Senior Government Counsel, of the Department of Justice, for the 1st, 2nd & 3rd Defendants

Please refer to HCMP2467/2011 for the relevant appeal(s) to the Court of Appeal.