The Case for Recusal: A Summary on WSSA v SYH [2024] HKCA 735

In the Family Court, it is common to see high conflict and long running cases. Parties may frequently feel aggrieved by strict case management decisions or substantive decisions made by Judge or a Master which may not be in their favour. In cases where bias is real or perceived, a party may make an application to recuse a judge. These applications are serious and should not be made lightly. They should be filed quickly after the alleged incident of bias and grounded upon fact and not the mere perception of the aggrieved party.

In WSSA v SYH [2024] HKCA 735, the Court of Appeal had the opportunity to consider an application for recusal within the Family Court context and to consider the relevant test for apparent bias.

Background

Parties married in 2007 and had two children together. Parties separated in 2017, and unfortunately the separation resulted in long and bitter disputes over the children.

Parties took out various applications throughout the proceedings and the Husband, being dissatisfied with decisions made in interim orders, case management orders and comments made by the Judge, argued that those acts demonstrated a real possibility of bias. Thus, the Husband filed a summons seeking an order that the Judge be recused on the grounds of apparent bias. The application was dismissed (the “Decision”).

The Husband appealed for leave against the Decision to the Court of Appeal.

Legal Principles

The ‘reasonable apprehension of bias test’ is well set out in GM-SA aka DG, M-S v DDPJ (Recusal) [2022] HKFLR 493.

“The Court must 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, or a real danger, the two being the same, that the tribunal was biased.”

The Husband raised two intended grounds of appeal: –

Ground 1

The Husband contended that the Judge misapplied the ‘reasonable apprehension of bias test’. The Husband argued that the Judge failed to adopt a perspective of a fair-minded and informed observer to examine a number of matters and thus resulted in: –

1. the unilateral imposition of certain interim orders;
2. certain remarks made against the Husband;
3. the decision to vacate trial dates; and
4. the imposition of certain leave requirements.

The Court dismissed all matters within Ground 1. The Court found that Ground 1 was, in substance, a series of complaints and did not find any indication that a fair-minded and informed observer would perceive a real possibility of bias.

The interim orders for non-molestation and supervised access were not ‘extreme’ nor indicative of a ‘real risk of bias’. The Judge found that it was made in the best interest of the children. Furthermore, the Judge’s decision to vacate trial dates on his own motion was also not indicative of bias. Even if the decision to vacate is an error in case management, it is incorrect to automatically equate the decision to ‘risk of bias.’

The Court concluded that the Judge had rightly considered that the objective, fair minded and informed observer would not consider that there was bias.

Ground 2

Under this ground, the Husband argued that the Judge failed to consider two crucial points: firstly, that a fair-minded observer would perceive bias on the Judge’s part, and secondly, that the Husband’s lack of confidence in the Judge would undermine the chances of a fair outcome. The Court also dismissed Ground 2.

The Court endorsed a ‘light switch’ analogy for apparent bias as stated in Axnoller Events Ltd v Brake [2021] EWHC 949.

              “It is like a light switch, either on or off.”

The Court’s observed that apparent bias is not a question of discretion but one of law. Either there is no apparent bias, in which the Judge should not recuse themselves, or there is apparent bias, in which case the Judge must recuse themselves.  

The Court of Appeal was not persuaded that the intended ground was reasonably arguable.

Conclusion

The Hong Kong Court reaffirms the ‘reasonable apprehension of bias test’. The Court of Appeal emphasised that adverse comments or expression of scepticism does not necessarily indicate bias unless there is an evident unwillingness by the Judge to consider opposing viewpoints. Further, the Court of Appeal will only overturn decisions and exercise discretion if the Judge’s decision was based on incorrect principles or if exercise of discretion was plainly wrong. Parties should carefully consider their perception of judgments or decisions before proceeding to seek recusal.

Joanne Brown and Kathy Siu

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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication. This article was last updated on 23 August 2024.