BOI v BOJ

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 04 October 2018
• Neutral Citation: [2018] SGCA 61
• Plaintiff Counsel: Sim Yuan Po Thomas, Linda Joelle Ong and Lim Xiao Wei Charmaine (Engelin Teh Practice LLC)
• Date: 04 October 2018
• Docket Number: Civil Appeal No 189 of 2017
• Hearing Date: 26 March 2018
• Subject Matter: Judges,Courts and Jurisdiction,Recusal
• Published date: 09 October 2018
• Defendant Counsel: N Sreenivasan SC and Lim Shu Fen (Straits Law Practice LLC)
• Court: Court of Appeal (Singapore)
• Citation: [2018] SGCA 61
• Year: 2018

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

The field of litigation is a potential hotbed for excessive friction and, on the rare occasion, even the flaring of tempers and the engendering of ill-will. Fortunately, this is rare. Unfortunately, the present application allegedly involves one such occasion. It concerns a broken and severely fractured relationship between former spouses. Counsel for the Appellant (the ex-wife), Mr Thomas Sim, described it as a “high-conflict case”. But, indeed, he went further in this application: he argued that the High Court judge (“the Judge”) did not give his client a fair opportunity to put forward her case through her then counsel (his colleague). The Appellant therefore wanted the Judge to recuse herself from the case. An application was brought after consultation with her lawyers. The Judge heard and rejected the application. That led to the present appeal. We dismissed the appeal and now give the detailed grounds for our decision.

At the outset, two general but important observations, which also apply to the present case, are in order.

First, counsel are not the mere “mouthpieces” of their clients. They are not mere automatons, executing every instruction of the client, especially where the client wants each and every point to be taken in order to inflict maximum “damage” on the other party, and where the taking of such points is – in a word – pointless and would not only engender a wastage of the other party’s, but also the court’s, time and resources. There is a reason why lawyers are also known as “counsel” – in such situations, lawyers must counsel their clients and apprise them of what is permissible and what is not. We operate within an adversarial system. However, as the learned Lord Chief Justice Cockburn observed in an extra-judicial address (see George P Costigan Jr, “The Full Remarks on Advocacy of Lord Brougham and Lord Chief Justice Cockburn at the Dinner to M Berryer on November 8, 1864” (1931) 19 Cal L Rev 521 at p 523), which our courts have endorsed and recapitulated on several occasions (most recently by this Court in Goh Seng Heng v Liberty Sky Investments Ltd and another [2017] 2 SLR 1113 at [62]):

My noble and learned friend, Lord Brougham ... said that an advocate should be fearless in carrying out the interests of his client; but I couple that with this qualification and this restriction—that the arms which he wields are to be the arms of the warrior and not of the assassin. It is his duty to strive to accomplish the interests of his clients per fas, but not per nefas; it is his duty, to the utmost of his power, to seek to reconcile the interests he is bound to maintain, and the duty it is incumbent upon him to discharge, with the eternal and immutable interests of truth and justice. [emphasis added]

In order to wield the “correct” set of arms, the lawyer, whilst owing a duty to his or her client, obviously cannot be the mere conduit pipe of that client. He also owes a duty – and indeed a paramount one – to the court. A lawyer has to tread a fine line when adhering to these occasionally inconsistent duties in practice, but that is the very essence of being a legal professional.

On a related note, the lawyer also needs to guard against his or her own bias, which may be subconscious and insidious. In particular, the lawyer must guard against taking on, especially subconsciously, the persona of his or her client. This is all the more so in cases where the parties’ emotions run high. There is sound logic in this because a lawyer who takes on the persona of his or her client is also likely to lose his or her objectivity and sense of perspective. And such loss often results (ironically) in advice and possibly even outcomes that are ultimately to the client’s detriment.

Secondly, whilst patience and rectitude ought to be the ideal at all times, we are all only human. Hence, there must be the proverbial give and take on the part of both judge and counsel alike. This relates to the issue of perspective, and the following oft-cited advice from a father to his daughter in a famous novel ought to be noted (see Harper Lee, To Kill A Mockingbird (William Heinemann Ltd, 1960; reprinted in the New Windmill Series, 1966) at p 35):

First of all, … if you can learn a simple trick, Scout, you’ll get along a lot better with all kinds of folks. You never really understand a person until you consider things from his point of view … until you climb into his skin and walk around in it.

This sage advice was quoted by the Court of Three Judges in Singapore Medical Council v Wong Him Choon [2016] 4 SLR 1086 (at [4]) in relation to the need for a doctor to be cognisant of the patient’s perspective as well, but it embodies a universal truth that applies perhaps a fortiori to the present case. In our view, both judge and counsel could have been more patient with each other had they stepped into each other’s shoes even if for a brief moment – with the lawyers concerned simultaneously realising that, if they had inadvertently stepped into their client’s shoes, they ought to have stepped out of them with some haste.

That having been said, impatience has never been a ground for recusal of a judge. The hope is that everyone is an angel but the truth is that we are all only human and ought to bear, as far as possible, with each other’s foibles and weaknesses. One cannot help but feel that had there been more give and take in the present case, it would not have escalated into the proceedings that we now have before us. Perhaps some good can come out of this unfortunate situation if judges and lawyers (and, indeed, all who are involved in the discipline of law) learn the lesson, if not of perfect patience, then at least of the need for perspective as well as for self-restraint that has the quest for patience at its foundation, especially when every fibre within oneself seeks (or even cries out) to conduct oneself otherwise. Notwithstanding the fact that it is often bandied about out of context, there is much truth in the old adage that one ought to at least disagree without being disagreeable.

With these observations in mind, we now turn to the case proper.

The factual backdrop

The parties to the present appeal are former spouses. The Appellant commenced divorce proceedings on 23 December 2013 and interim judgment was granted on 4 February 2014.

The ancillary matters were scheduled to be heard before the Judge on 9 November 2016, 8–9 February, 18 April, 21 April, and 20–21 June 2017. A further full day hearing date was fixed on 11 July 2017.

On 7 July 2017, the Appellant filed Summons No 240 of 2017 (“SUM 240”) in the High Court seeking the recusal of the Judge from hearing the ancillary matters, and for another judge to hear the same. The application for recusal was premised on the Judge’s alleged conduct at the hearings on 18 April, 21 April, 20 and 21 June 2017.

On 2 October 2017, the Judge heard the parties and dismissed SUM 240.

In the parties’ submissions below, the Appellant’s main ground for recusal was that the Court had been infected by apparent bias. The Appellant elaborated that this was because her counsel had been unduly hampered in the presentation of her case before the Judge; the Judge had favoured the Respondent by giving his counsel more time and greater leeway; and the Judge had prejudged the case against the Appellant without having heard the parties fully.

The Respondent submitted that apparent bias was not made out on the facts. The Respondent added that the recusal application was a backdoor appeal prematurely brought before any order was made by the Judge because the Appellant was unhappy with the Judge’s factual findings. Further, as a matter of public policy, the recusal application should not be allowed as it would condone “judge shopping”.

At the time this appeal was heard, the hearing of the ancillary matters in the divorce suit had not concluded and no orders had been made.

The decision below

The Judge saw no reason to recuse herself. In her unpublished grounds of decision, she began by describing the general procedure in ancillary matters hearings. Unlike trials, ancillary matters hearings do not involve cross-examination of parties and witnesses. Instead, evidence for such hearings would comprise affidavits of assets and means as well as joint summaries of relevant information. The evidence is supplemented by written submissions. All the court is concerned with is the objective evaluation of what has been placed before it. The court can therefore adopt a more interventionist judge-led approach. This, according to the Judge, is reinforced by r 22 of the Family Justice Rules 2014 (GN No S 813/2014) (“the FJR”), which provides as follows:

Power to make orders and give directions for just, expeditious and economical disposal of proceedings

22.—(1) Despite anything in these Rules, the Court, when dealing with any cause or matter, is to adopt a judge-led approach — (a) to identify the relevant issues in the cause or matter; and (b) to ensure that the relevant evidence is adduced by the parties to the cause or matter. (2) In adopting a judge-led approach, the Court may, at any time after the commencement or at the hearing of any proceedings, of its own motion or on an application by any party to the proceedings, direct any party or parties to those proceedings to appear before it, for the Court to make such order or give such direction as it thinks fit, for the just, expeditious and economical disposal of the cause or matter.

…

The Judge added that the court has wide powers to manage the flow of the proceedings, including the power to limit time for oral arguments.

Next, the Judge rejected the allegation of prejudgment on her part. She explained that after she had reviewed each issue...