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HCCL 17/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
COMMERCIAL ACTION NO 17 OF 2012
____________

BETWEEN

GRANT THORNTON INTERNATIONAL
LIMITED 1
st
Plaintiff
J ONATHAN RUSSELL LEONG 2
nd
Plaintiff
RINGO CHIU WING CHEUNG 3
rd
Plaintiff
ANDREW LAM HUNG YUN 4
th
Plaintiff
GARY TERENCE J AMES 5
th
Plaintiff
LO NGAI HANG
(also known as TONY LO NGAI HANG) 6
th
Plaintiff
AU YIU KWAN
(also known as ALVIN AU YIU KWAN) 7
th
Plaintiff
LI WING YIN
(also known as AMOS LI WING YIN) 8
th
Plaintiff
NORMAN TWUI KA CHE 9
th
Plaintiff
and
TANG CHUNG WAH
(also known as ALAN TANG) 1
st
Defendant
LEE FUNG YING
(also known as ALISON WONG) 2
nd
Defendant

____________
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Before: Hon Ng J in Chambers
Date of Hearing: 13 November 2013
Date of Decision: 11 J une 2014
______________
D E C I S I O N
______________
Introduction
1. The substantive matters before this court were (1) the
Plaintiffs application to strike out the counterclaim on the ground that it
discloses no reasonable cause of action and (2) the Defendants application
to strike out the 2
nd
to 9
th
Plaintiffs from these proceedings on the ground
that Messrs King & Wood Mallesons (KWM) are not duly authorized to
issue and conduct these proceedings.
2. As far as (1) was concerned, Mr Brock informed this court
that the Defendants had issued a summons on 7 November 2013 for leave
to discontinue the counterclaim and the Plaintiffs were agreeable to
paragraphs 1 and 2 of that summons. The only live issue was the question
of costs.
3. Before this court proceeded to deal with either (1) or (2),
Mr Cheung, for the Defendants, made an oral application that I ought to
recuse myself and that application, by consensus between Mr Brock and
Mr Cheung, had to be dealt with first.
4. This is the courts decision on the recusal application.
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The application
5. The sole ground of the application was apparent bias which in
turn was based on what Mr Cheung described in his skeleton submissions
as past skirmishes which the Defendants, whilst acting in person,
had encountered with this court on previous occasions, including in
particular, a hearing which took place on 29 August 2013. The Defendants
were said to have developed an acute concern as to whether it was viable
for this court to continue presiding over these proceedings.
6. In an application of this sort, the court applies the reasonable
apprehension of bias test ie the court must first ascertain all the
circumstances which have a bearing on the suggestion that the judge is
biased; it must then ask whether those circumstances would lead a
reasonable, fair-minded and well-informed observer to conclude that there
is a real possibility that the tribunal would be biased: Re Medicaments and
Related Classes of Goods (No.2) [2001] 1 WLR 700; Porter v Magill
[2002] 2 AC 357; Deacons v White & Case (2003) 6 HKCFAR 322.
7. The events which cumulated in the hearing on 29 August 2013
were these.
8. By a summons dated 10 J une 2013, the Plaintiffs applied
(i) for summary judgment against the Defendants in the sum of GBP57,500
together with interest, and (ii) to strike out the counterclaim on the ground
that it discloses no reasonable cause of action. The sum of GBP57,500 was
the subject of a costs order made by Hildyard J of the Chancery Division
of the High Court of England & Wales against the Defendants back in
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November 2012. The summons was returnable on 23 J uly 2013 at 9:30 am
and set down for 15 minutes.
9. By a summons dated 18 J une 2013, the Defendants applied to
strike out the 2
nd
to 9
th
Plaintiffs from these proceedings on the ground that
KWM are not duly authorized to issue and conduct these proceedings.
The summons was returnable on 29 August 2013 at 9:30 am and set down
for 30 minutes.
10. On 23 J uly 2013, after hearing Mr Brock for the Plaintiffs and
the Defendants appearing in person, this court granted the Plaintiffs
application for summary judgment in the sum of GBP57,500 together with
interest on the ground that the Defendants had failed to show by affidavit
or otherwise a defence on the merits.
11. As there was not enough time to deal with the Plaintiffs
striking out application, this court adjourned it to be heard together with
the Defendants striking out application, with two hours reserved.
This court specifically asked each of the Defendants whether they had any
objection to adjourning the two striking out applications together.
They indicated no objection.
12. On 26 J uly 2013, the parties were informed that the hearing
scheduled on 29 August 2013 had been vacated due to insufficient time
and directed to go before the listing clerk to re-fix the hearing of the two
striking out applications together. The parties representatives went before
the listing office on 1 August 2013 and the hearing was re-fixed to
18 September 2013.
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13. On 5 August 2013, the Defendants wrote to this court seeking
to re-fix the hearing scheduled for 18 September 2013 on the ground that
the 2
nd
Defendant would be out of town on that day as she had to attend a
business meeting in London. On 12 August 2013, the Defendants were
directed to make their application to the court in accordance with the Rules
of the High Court or the Practice Directions as appropriate.
14. On 21 August 2013, the Defendants issued a summons
seeking to vacate the hearing date of 18 September 2013. The summons
was returnable on 29 August 2013 at 10:00 am and set down for 3 minutes.
15. At the commencement of the hearing on 29 August 2013,
the 2
nd
Defendant stood up to address this court that she might not be able
to attend the hearing on 18 September 2013 because of her very important
business and family commitment she had to go to the UK to attend an
international conference and also her youngest daughter was to go to study
in the UK for the first time and she had to go with her. The 2
nd
Defendant
then gave an undertaking to the court that she would definitely be available
after October when she came back to Hong Kong and asked this court to
protect her interests.
16. The 1
st
Defendant then addressed this court. There was no
suggestion that he was not available on 18 September 2013, but upon
inquiry from this court, the 1
st
Defendant confirmed it was his application
too and made submissions accordingly.
17. Mr Brock, for the Plaintiffs, opposed the application on the
ground that the proceedings had been dogged by delays caused by the
Defendants. He submitted that it was the 2
nd
Defendants choice not to be
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legally represented in these proceedings whereas in other proceedings
ie the bankruptcy proceedings against the Defendants, they were
represented by Messrs J oseph Li & Co. He further submitted that this was
just another ploy on the part of the Defendants to delay the proceedings.
18. In the end, this court made a case management decision to
accommodate the 2
nd
Defendants personal commitments and re-fix the
two striking out applications in consultation with the parties diaries,
with two hours reserved.
19. This court then heard the parties on costs. Mr Brock asked for
costs to be assessed summarily on the basis that the Defendants were
seeking an indulgence from this court to vacate a hearing duly given by the
listing clerk. The Defendants resisted it and asked for costs from the
Plaintiffs. In the end, this court ordered costs be in the cause.
20. As a result of this courts order on 29 August 2013, the two
striking out applications were further re-fixed to 13 November 2013.
21. Applying the reasonable apprehension of bias test, I do not
consider any reasonable fair-minded and well-informed observer would
conclude that there is a real possibility that I would be biased against the
Defendants.
22. At the hearing on 29 August 2013, the 2
nd
Defendant was
given the opportunity to address me on her alleged difficulties in
attending the hearing scheduled for 18 September 2013. The 1
st
Defendant,
who had no reasonable cause for seeking to vacate the 18 September 2013
hearing, was also given the opportunity to address me in support of what
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was in substance the 2
nd
Defendants application. No complaint was made
by either Defendant at the hearing that this court was biased in favour of
the Plaintiffs or that they had acute concern about this courts impartiality
in dealing with the application. The application to vacate the
September 2013 hearing was decided after considering all the underlying
objectives set out in RHC Order 1A. It was more than six weeks later,
on 16 October 2013, that the Defendants lodged a complaint to the Chief
J udge of the High Court accusing this court of being biased in favour of
the Plaintiffs.
23. As far as previous court hearings were concerned, there were
altogether six of them.
24. On 4 March 2013, this court extended the time for the
Plaintiffs to file and serve its Reply and Defence to Counterclaim until the
final determination of the Plaintiffs summons filed on 19 February 2013.
25. On 7 March 2013, this court heard the Plaintiffs summons
filed on 19 February 2013 and
(1) ordered the Defendants to provide to the Plaintiffs an English
translation of their Defence and Counterclaim filed herein;
(2) ordered the Defendants to provide to the Plaintiffs an English
translation of all further Chinese documents to be filed in
court and served by them on the Plaintiffs, at the time of filing
and service of the same;
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(3) varied the Order this court made on 4 March 2013 such that
the time for the Plaintiffs to file their Reply and Defence to
Counterclaim was extended to 28 days after the Defendants
had provided the English translation of their Defence and
Counterclaim to them.
26. The Defendants failed to provide to the Plaintiffs an English
translation of their Defence and Counterclaim within 14 days in
accordance with the 7 March 2013 Order. The Plaintiffs applied for an
unless order by summons dated 21 March 2013 to compel the Defendants
to do so.
27. On 11 April 2013, this court heard the Plaintiffs summons for
unless order. The 1
st
Defendant was absent, but upon the 2
nd
Defendant
indicating to this court that she would comply with the 7 March 2013
Order, this court adjourned the Plaintiffs summons and further extended
the time for the Defendants to file and serve an English translation of their
Defence and Counterclaim for another 14 days.
28. The Defendants still failed to comply with the 7 March 2013
Order as extended.
29. On 29 May 2013, this court, having been satisfied that the
Defendants failure to comply with the Order made on 7 March 2013 and
extended on 11 April 2013 was intentional and contumelious, made an
unless order in the following terms:
Unless the Defendants do within 7 days from today file and
serve an English translation of their Defence and Counterclaim
dated 4 February 2013, the Defence and Counterclaim be struck
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out and default judgment be entered in favour of the Plaintiffs in
terms of the Statement of Claim herein.
30. On 5 J une 2013, this court heard four applications by the
Defendants:
(1) First, the Defendants application by summons dated
20 March 2013 for leave to appeal against the 7 March 2013
Order and stay of execution pending appeal.
(2) Second, the Defendants application by summons dated
13 May 2013 for leave to appeal against this courts order
dated 8 May 2013 whereby a previous costs order nisi made
by this court that costs of and occasioned by the Plaintiffs
application for an extension of time be to the Defendants was
varied on paper to costs of and occasioned by the Plaintiffs
summons dated 22 February 2013 for extension of time to
serve their Reply and Defence to Counterclaim, as well as
costs of the Plaintiffs application to vary costs order nisi by
summons dated 21 March 2013, be in the cause, to be taxed if
not agreed and stay of execution pending appeal.
(3) Third, the Defendants application by summons dated 29 May
2013 for leave to appeal against the Unless Order and stay of
execution pending appeal.
(4) Fourth, the Defendants application by summons dated
29 May 2013 to compel the Plaintiffs and KWM to submit
documentary proof that KWM were duly appointed and
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authorised by the Plaintiffs prior to the commencement of the
present proceedings.
31. For reasons given in a Decision dated 5 J une 2013, this court
dismissed all three leave applications and stay applications. This court also
dismissed the Defendants last-mentioned application by summons dated
29 May 2013 as misconceived.
32. Lastly, on 23 J uly 2013, as mentioned in paragraph 10 above,
this court granted the Plaintiffs application for summary judgment in the
sum of GBP57,500 together with interest on the ground that the
Defendants had failed to show by affidavit or otherwise a defence on the
merits.
33. Again applying the reasonable apprehension of bias test, I do
not consider any reasonable fair-minded and well-informed observer
would conclude from this courts previous decisions that there is a real
possibility that I would be biased against the Defendants.
34. At all the hearings, each of the Defendants, if they chose to
turn up in court, was given the opportunity to address me in the language
of their choice. Neither of them complained during or immediately after
the hearings about the lack of opportunity to make submissions to this
court. Neither of them raised during or immediately after the hearings any
concern about this courts impartiality. The applications before this court
were all decided on their merits and strictly in accordance with the law and
this courts powers conferred by the Rules of the High Court.
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35. In the view of this court, a reasonable fair-minded and
well-informed observer would instead conclude the Defendants are
litigants disgruntled at not having their way before this court and hope to
switch to another judge who may be more sympathetic to their cause.
That is not permissible under our legal system.
Disposition
36. For the above reasons, I would dismiss the recusal application.










(Peter Ng)
J udge of the Court of First Instance
High Court




Mr Denis Brock, of King & Wood Mallesons, for the plaintiffs

Mr J eremy Cheung, instructed by J oseph Li & Co, for the defendants