Courts and judicial system — judge — recusal — plaintiff had been witness and interested party in earlier arbitral proceedings in which deputy judge had acted as counsel for other side and cross-examined plaintiff — whether real possibility of bias
P in the present action had been a witness and interested party in arbitral proceedings about five years earlier, in which the Deputy Judge had acted as counsel for the other side and cross-examined her (the “Other Proceedings”). D applied for the Deputy Judge to recuse himself based on an appearance of subconscious bias.
Held, granting the application, that:
1) In deciding a recusal application, the court must first ascertain all the circumstances which had a bearing on the suggestion that the judge was biased, but this should cover more broadly all relevant circumstances, and then ask whether the circumstances would lead a fair-minded observer to conclude that there was a real possibility the judge was biased. The applicant was required to show a logical connection between the asserted apprehension of bias and a particular fact or issue in the case (Deacons v White & Case LLP (2003) 6 HKCFAR 322, Komal Patel v Chris Au  1 HKLRD 328, ZN v Secretary for Justice  1 HKLRD 174 applied). (See paras. 15, 17.)
2) Although the present dispute was essentially about contractual interpretation and so the witnesses’ testimony and credibility was of secondary importance, it was nevertheless a relevant consideration. (See paras. 18–19.)
3) One additional and significant factor was that D was unable to fully ascertain and understand the Deputy Judge’s involvement in the Other Proceedings, to which D had not been a party since these were arbitral proceedings. (See paras. 23–24.)
4) In all the circumstances, a fair-minded and informed observer, having considered the facts (including the Deputy Judge’s involvement in the Other Proceedings), would conclude that there was a real possibility that the Court could be biased. Justice must be done and must be seen to be done (Superb Quo Ltd v Lee Yuen Cheung Co Ltd (HCMP 29/2011,  HKLRD (Yrbk) 202), ZN v Secretary for Justice  1 HKLRD 174 applied). (See paras. 26–27.)
This was an application by the defendant for Deputy Judge Maurellet SC to recuse himself in the trial of the action. The facts are set out in the judgment.