The Case for Recusal: A Summary on WSSA v SYH CAMP388/2023, [2024] HKCA 735

In WSSA v SYH CAMP388/2023, [2024] HKCA 735, the Court of Appeal had the opportunity to consider an application for recusal within the Family Court and to consider the test for apparent bias.

Background

Parties married in 2007 and have two children. Parties separated in 2017, and the separation was not amicable with 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 argues that these matters 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 at the Court of Appeal.

Legal Principles

The test of ‘reasonable apprehension test’ for apparent bias 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.

Ground 1 was dismissed by the Court. 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’. Rather 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 in the event that the decision to vacate is an error in case management, it is incorrect to automatically equate the decision to ‘risk of 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. Ground 2 was also dismissed by the Court.

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 found that none of the Husband’s intended grounds were reasonably arguable.

Conclusion

In the Family Court, it is not uncommon to see high conflict and long running cases. Parties may frequently feel aggrieved by strict case management decisions or substantive decisions which may not be in their favour.  The Hong Kong Court reaffirms the test for apparent bias is one of ‘reasonable apprehension’. The Court emphasised that adverse comments or expression of scepticism do 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 22 August 2024.