A recusal application is an application calling for the judicial officer presiding over a case to disqualify himself from involvement in the case on the grounds that he or she is biased.

It has always been an important principle under common law that justice should not only be done but should also be seen to be done.

A recusal application can be based on either actual bias or apparent bias, and is generally a matter of whether the judicial officer might not bring an open mind to the resolution of the question that he or she is required to decide. Applications based on “actual bias” are rare, because they are very difficult to prove. Applications based on apparent bias are much more common, as proving the actual existence of bias is unnecessary. This article therefore looks at applications based on apparent bias only.

The test for apparent bias is one of “reasonable” apprehension of bias, expressed by the Appeal Committee of the Court of Final Appeal in Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281as follows: “The court must first 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 that the tribunal was biased.

In the Falcon case, the Plaintiff applied for leave to appeal against the Court of Appeal’s decision allowing the Defendants’ application for recusal of the judge on the ground of apparent bias. The Court of Appeal held that the judge’s repeated criticisms (in a series of decisions spanning more than six months) of the Defendants’ legal representatives that they had deliberately misled the court would inevitably lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal had lost its detachment and would approach the case with its mind closed to persuasion by those advisers, thus undermining judicial impartiality. The Court of Appeal’s ruling was upheld. The Appeal Committee of the Court of Final Appeal expressed understanding of the judge’s irritation and frustration, but commented that it was wrong to think that because criticism of counsel and solicitors may be justified, the context and nature of such criticism can never constitute a basis for recusal.

In the recent case of Komal Patel & Ors v Chris Au & Ors [2015] HKCU 2700, the 1st Defendant made an application for recusal of the judge on numerous grounds, including (i) the judge’s brother’s professional and personal relationship with the 3rd Plaintiff and/or his brother; (ii) that most of the judge’s decisions in the proceedings had been against him; and (iii) that the judge had referred him to the Attorney General of Singapore over conflicting testimonies given by him in the courts of Hong Kong and Singapore, but had taken no such action against the 3rd Plaintiff in the same or similar situation.

The recusal application failed on all grounds. The judge held that a fair-minded and informed observer would consider that there was no personal connection between himself and the 3rdPlaintiff and that the solicitor-client relationship between his brother and the 3rd Plaintiff’s brother was such that would not lead a fair-minded and informed observer to apprehend that he was biased.  The judge found the allegation that most of his decisions in the proceedings had been against the 1st and 3rd Defendants simply not correct. Further, the 1st Defendant had not sought to argue that any of the decisions were wrong and had not appealed any of them. A fair-minded and informed observer having considered the nature of the decisions and the reasoning of them would not conclude that there was a real possibility of bias.

As regards the judge’s decision to report the 1st Defendant to the Attorney General of Singapore, that was made after the 1st Defendant was given every opportunity to address the matter and after full consideration of the submissions and evidence.

In another recent recusal case ZN v Secretary for Justice & Ors [2015] HKCU 2738, the Secretary for Justice, Director of Immigration, Commissioner of Police and the Commissioner for Labour (HKSARG) made an unprecedented application for recusal of the judge from hearing a judicial review application involving an issue of human trafficking because of the positive stance he had taken combating the problem when he was Director of Public Prosecutions. The application was based on apparent bias. The judge refused the application.

The court emphasized that care should be taken when addressing an application of apparent bias. Bare claims of the appearance of bias or a vague or general contention of “bias” was not sufficient to mount a recusal application and the complaining party must specify how the judicial officer would be biased towards a particular party or on a particular issue, or what that bias would be. The allegation of bias must, the Court said, be assessed objectively by the fair-minded and informed observer by having regard to all the relevant circumstances pertaining to the recusal application.

An applicant had to show a logical connection between the asserted apprehension of bias and a particular party or issue. The observer is taken to be fair-minded and informed, and the person being observed is a professional judicial officer whose training, tradition and oath or affirmation requires him to discard the irrelevant, the immaterial and the prejudicial. While everything will depend upon the facts and nature of the issue to be decided, objections could not be based on religion, ethnic or national origin, gender, age, class, means or sexual orientation of the judge. Nor, ordinarily, would they be based on the judge’s educational, social, employment or service background, nor his political associations, professional associations, membership of social, sporting or charitable bodies, prior judicial decisions or views expressed in textbooks, lectures, speeches, articles, interviews, or reports or responses to
consultation papers, nor the fact that he had in the past received instructions from a party. Judicial officers were not, automatons, the Court said, and will normally have views or positions on legal principles or policies, which may change from time to time, and this will usually be reflected in their decisions.

The Court commented that commonly applications for recusal of a judicial officer based on the appearance of bias were made by an ordinary litigant because of a lack of familiarity with the legal process and a heightened sensitivity to any appearance of bias. When the litigant was the HKSAR Government, as here, however, it should be rare indeed that it would make an application for the recusal of a judicial officer, and if it does, it should be only in the most obvious cases. The HKSARG should display greater confidence in and respect for the workings of the judiciary.

Waiver

It is important for a party wishing to make an application for recusal to do so without delay, failing which, in the absence of an explanation for the delay, he will be taken to have waived his objection on the ground of bias. It will depend upon whether the applicant was aware of all the material facts and has decided not to raise an objection on the grounds of bias when it was open to him to raise such an objection.

In the Komal case, the judge held that the 1st Defendant had waived his objection on the ground of bias, as he had not raised an objection when it has been open for him to do so. No plausible explanation had been given by the 1st Defendant for the delay. The Court said that there is an obligation on a party to make the application expeditiously and lateness of an application without any explanation for delay will be conclusive that there has been a waiver.

In the ZN case, the applicant was also criticized for delay in making the recusal application. The matters raised in support of the recusal application would have been and were known by the Respondents in late June 2015 and yet the application was made only on 12 October 2015, three days prior to the case management conference. However, the judge concluded that the late application would not have constituted a waiver in that case.

A Circular issued to solicitors by the Hong Kong Law Society states that parties and their legal representatives should take steps to identify any association between a party / its witnesses and the judge upon receipt of the notice of hearing from the Judiciary informing them of identity of the judge, to ascertain if any of them had any association with the judge that might become a ground for recusal.

Court’s attitude towards recusal applications

The court’s attitude towards recusal applications is succinctly summarised in the Falcon case as follows:-

 “Judges must be wary of unjustified applications for their recusal motivated by tactical or forum-shopping considerations. By its very nature, it is generally in quite exceptional cases that recusal is called for.… judges can generally be expected to exercise proper judicial standards even after they have found it necessary to criticise wayward legal representatives. Judges should accordingly feel confident of appellate support if they continue with the case where there are no reasonable grounds for apprehending a risk of bias. On the other hand, if there is a real possibility that a risk of bias might objectively be apprehended, this should be recognized and they should prudently arrange for a colleague to take over the proceedings, … Even if there is a suspicion that forum shopping motivates an application, the fact and appearance of judicial impartiality must have priority and the prudent course should be followed where a real risk of apprehended bias exists.”

It is generally difficult for a party to succeed in an application for recusal of a judicial officer. If an application is to be made, however, it should be made as soon as possible and as soon as the relevant facts relied upon are known, in order to avoid being taken to have waived the right to object on the ground of bias.