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29 September 2020
In Borrelli v Chan(1) a High Court judge dismissed the defendants' application that she recuse herself from a substantive hearing in contempt proceedings. The application was based on what the defendants submitted was a reasonable apprehension of bias ('apparent bias') – in particular, they claimed that in an earlier decision involving the same parties, the judge had prejudged a question of fact that was crucial in the contempt proceedings. In dismissing the recusal application, the court noted that the issue was fact sensitive and that a finding of apparent bias based on a pre-judgment in a case is rare. That a judge may have previously made adverse findings against a party (including findings as to credibility) does not normally give rise to a reasonable apprehension of bias. The court also highlighted the significance of the judicial oath, which imposes on judges (among other things) a duty to act impartially in all cases.
In August 2014 the plaintiff trustee obtained an injunction against the first defendant restraining him from disposing of certain assets. The injunction was granted in aid of overseas proceedings. In January 2015 the injunction was extended to three other defendants with respect to certain of their bank accounts. The order required the three defendants to disclose the details of certain assets or transactions. The injunction orders against the first defendant and against the three other defendants were granted by two different judges. In June 2016 a third judge, Chan J, granted a further order that the three other defendants provide more evidence of alleged transactions between them and the first defendant. In the course of doing so, Chan J observed that these three defendants could no longer argue whether certain money belonged to the first defendant.
In August 2016 the plaintiff commenced proceedings against the defendants for contempt – it was alleged that the first defendant was in breach of the injunction and that the three other defendants had (among other things) aided the breach. The substantive hearing in the contempt proceedings was listed for hearing before Chan J. The defendants asked the judge to recuse herself.
The recusal application was based on apparent bias. The defendants alleged that there was a reasonable apprehension of bias in that (judged by the standard of a fair-minded and informed observer) the judge might be perceived as having prejudged a crucial issue in the contempt proceedings – namely, whether the plaintiff was able to prove beyond reasonable doubt that certain money held in the names of the three other defendants belonged to the first defendant.
The court dismissed the defendants' application.
The court's decision sets out the general principles and case law with respect to recusal based on apparent bias (as opposed to actual bias).
The court noted that it was important to consider the context of the June 2016 decision. That decision had required the three other defendants to comply with a prior court order (made in January 2015) which, in turn, required them to provide details of alleged transactions with the first defendant. On granting the order in June 2016, it had not been open to these three defendants to argue again whether certain money held by them belonged to the first defendant. The judge who granted the disclosure order in January 2015 had been satisfied that the first defendant exercised substantive control over the money in question. That issue had not been determined by the judge who granted the order in June 2016, and the court had not (at that time) resolved the merits of the plaintiff's application for a committal order in respect of the alleged contempt.
In any event, the court was not satisfied that a fair-minded and informed observer would conclude that the court was or would be biased.
Interestingly, the court also highlighted the significance of the judicial oath, quoting from one of the leading cases on point:
The significance of the judicial oath, which in Hong Kong (like in other jurisdictions) imposes on judges a duty to 'safeguard the law and administer justice without fear or favour, self-interest or deceit', is not to be overlooked: it is an important bulwark of judicial impartiality. It expresses the 'general rule of the common law… that judges must apply the law as they understand it to the facts of individual cases as they find them without fear or favour, affection or ill-will, that is, without partiality or prejudice'. The fair-minded and informed observer will be aware of the oath and that judges will generally 'try to live up to the high standard which it imposes': see Davidson v Scottish Ministers (No 2)  HRLR 34.(2)
The court also noted that "the courts have also emphasized that the participation of the same judge in a subsequent hearing involving the same parties and subject matter does not necessarily give rise to an appearance of bias".(3)
The dismissal of the recusal application is not surprising and is consistent with established legal principles (while recognising that such applications turn on their facts – for further details, please see "Lawyers go where angels fear to tread").
It is not unusual for the same judge to hear one or more interlocutory matters and the final substantive hearing in a case. For a court to make a finding of actual bias (which would be rare) or apparent bias (which occasionally happens), there needs to be evidence based on substantive grounds. As noted, a finding of apparent bias based on a court's pre-judgment during the interlocutory stage of a case is rare.
It is also interesting to note the court's reference to the significance of the judicial oath, in the context of recusal applications and, more generally, in the current political environment.(4)
(4) Also see, for example: the Judiciary's Press Release, dated 23 September 2020, at para 2, fourth sentence, referring to a statement of the chief justice of the Court of Final Appeal ("In other words, there must be no bias, whether actual or perceived, on the part of the courts in the determination or handling of cases"); and the Law Society of Hong Kong's Public Statement on Judicial Independence, dated 22 September 2020.
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