Boi v Boj

CourtCourt of Three Judges (Singapore)
JudgeSundaresh Menon CJ,Andrew Phang Boon Leong JA,Judith Prakash JA
Judgment Date04 October 2018
Date04 October 2018
Docket NumberCivil Appeal No 189 of 2017

[2018] SGCA 61

Court of Appeal

Sundaresh Menon CJ, Andrew Phang Boon Leong JA and Judith Prakash JA

Civil Appeal No 189 of 2017


Sim Yuan Po Thomas, Linda Joelle Ong and Lim Xiao Wei Charmaine (Engelin Teh Practice LLC) for the appellant;

N Sreenivasan SC and Lim Shu Fen (Straits Law Practice LLC) for the respondent.

Case(s) referred to

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Alkaff & Co v The Governor-in-Council [1937] MLJ 211 (refd)

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 (refd)

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Arsenault-Cameron v Prince Edward Island [1999] 3 SCR 851 (refd)

Auckland Casino Ltd v Casino Control Authority [1995] 1 NZLR 142 (folld)

Bradford v McLeod 1986 SLT 244 (refd)

British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 (folld)

BTR Industries South Africa (Pty) Ltd v Metal and Allied Workers’ Union 1992 (3) SA 673 (AD) (refd)

Chuang Wei Ping, Re [1993] 3 SLR(R) 357; [1994] 1 SLR 176 (refd)

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Committee for Justice and Liberty v National Energy Board [1978] 1 SCR 369 (refd)

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 (refd)

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De Souza Lionel Jerome v AG [1992] 3 SLR(R) 552; [1993] 1 SLR 882 (refd)

Dickason v Edwards (1910) 10 CLR 243 (refd)

Doherty v McGlennan 1997 SLT 444 (refd)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (refd)

Flaherty v National Greyhound Racing Club Ltd [2005] EWCA Civ 1117 (refd)

Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781 (folld)

Goh Seng Heng v Liberty Sky Investments Ltd [2017] 2 SLR 1113 (refd)

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Kay Swee Pin v Singapore Island Country Club [2008] 2 SLR(R) 802; [2008] 2 SLR 802 (refd)

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Lim Choo Suan Elizabeth v Goh Kok Hwa Richard [2009] 4 SLR(R) 193; [2009] 4 SLR 193 (refd)

Livesey v New South Wales Bar Association (1983) 151 CLR 288 (refd)

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Lucas Siemens v Graham Alexander Howard 2018 BCCA 197 (refd)

Man O'War Station Ltd v Auckland City Council [2001] 1 NZLR 552, CA (refd)

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Manjit Singh s/o Kirpal Singh v AG [2013] 2 SLR 844 (refd)

Medicaments and Related Classes of Goods (No 2), Re [2001] 1 WLR 700 (folld)

Metropole Pte Ltd v Designshop Pte Ltd [2017] 4 SLR 277 (refd)

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Millar v Dickson [2002] 1 WLR 1615; 2001 SLT 988 (refd)

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Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495 (refd)

Murray & Tomas [2011] FamCAFC 81 (refd)

National Assembly for Wales v Condron [2006] EWCA Civ 1573 (refd)

Nim Minimaart v MCST Plan No 1079 [2010] 2 SLR 1 (refd)

Otkritie International Investment Management Ltd v Urumov [2014] EWCA Civ 1315 (refd)

Petroships Investment Pte Ltd v Wealthplus Pte Ltd [2018] 3 SLR 687 (refd)

Porter v Magill [2002] 2 AC 357; [2002] 2 WLR 37 (folld)

PP v Chua Siew Wei Kathleen [2016] 2 SLR 713 (refd)

President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (refd)

Prometheus Marine Pte Ltd v King, Ann Rita [2018] 1 SLR 1 (folld)

PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98 (refd)

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R v Gough [1993] AC 646 (not folld)

R v Keats 2018 NSCA 15 (refd)

R v Liverpool City Justices; ex parte Topping [1983] 1 WLR 119 (refd)

R v S (RD) [1997] 3 SCR 484 (folld)

R v Sussex Justices; ex parte McCarthy [1924] 1 KB 256 (refd)

R v Valley (1986) 26 CCC (3d) 207 (folld)

R v Watson; ex parte Armstrong (1976) 136 CLR 248 (refd)

S v Basson 2005 (12) BCLR 1192 (CC) (folld)

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Secretary of State for Work and Pensions v Gillies 2004 SLT 14 (refd)

Shankar Alan s/o Anant Kulkarni, Re [2007] 1 SLR(R) 85; [2007] 1 SLR 85 (folld)

Siemer v Heron [Recusal] [2012] 1 NZLR 293 (refd)

Sim Yong Teng v Singapore Swimming Club [2016] 2 SLR 489 (refd)

Singapore Medical Council v Wong Him Choon [2016] 4 SLR 1086 (refd)

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Sinnappan a/l Nadarajah v PP [2018] SGCA 21 (refd)

Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board [2005] 4 SLR(R) 604; [2005] 4 SLR 604 (folld)

Tang Liang Hong v Lee Kuan Yew [1997] 3 SLR(R) 576; [1998] 1 SLR 97 (refd)

Taylor v Lawrence [2003] QB 528 (refd)

TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd [2013] 4 SLR 972 (refd)

TOW v TOV [2017] 3 SLR 725 (refd)

UES Holdings Pte Ltd v KH Foges Pte Ltd [2018] 3 SLR 648 (refd)

Vakauta v Kelly (1989) 167 CLR 568 (refd)

Webb v R (1994) 181 CLR 41 (refd)

Wewaykum Indian Band v Canada [2003] 2 SCR 259 (refd)

Yukon Francophone School Board, Education Area #23 v Attorney General of the Yukon Territory [2015] 2 SCR 282 (refd)

Legislation referred to

Family Justice Rules 2014 (S 813/2014) r 22

Courts and Jurisdiction — Judges — Recusal — Former wife in divorce proceedings seeking recusal of judge — Judge allegedly raised her voice at counsel during hearing — Judge allegedly interrupted counsel repeatedly — Judge allegedly pre-judged issue before hearing — Judge allegedly descended into arena to assist opposing counsel to reach outcome judge already made — Whether judge applied correct test for apparent bias — Whether judge ought to have recused herself


The parties to the appeal were former spouses. The appellant (“the Appellant”), the former wife, commenced divorce proceedings in December 2013. The ancillary matters were scheduled to be heard before the High Court judge (“the Judge”). Before the final hearing date on 11 July 2017, and before any order had been made in respect of the ancillary matters, the Appellant filed an application 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 during hearings conducted on 18 April, 21 April, 20 and 21 June 2017, which the Appellant argued, in the proceedings below, was demonstrative of apparent bias on the Judge's part.

The Judge dismissed the recusal application. On appeal, the Appellant submitted that the decision below was wrong on two levels. First, the Judge had wrongly applied the “real danger” or “real likelihood” test, as opposed to the “reasonable suspicion” test, in determining whether apparent bias had been made out. Secondly, the Appellant, reiterating the arguments made below, submitted that the Judge was affected by apparent bias because in the proceedings below: (a) the Judge had unduly obstructed and hampered the Appellant's counsel from effectively presenting the Appellant's case, (b) the Judge had treated the parties unequally by giving the counsel of the respondent (“the Respondent”) more leeway and time, and (c) the Judge had prejudged the case in a manner adverse to the Appellant and was not open to hearing evidence that did not conform to her pre-formed views. On one occasion, the Judge had also led the Respondent's counsel to make certain arguments that purportedly reached the conclusion that the Judge had already made. The Respondent refuted these arguments.

Held, dismissing the appeal:

(1) The conflict between the case of Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board[2005] 4 SLR(R) 604 (“Tang Kin Hwa”) and Re Shankar Alan s/o Anant Kulkarni[2007] 1 SLR(R) 85 (“Re Shankar Alan”) was more apparent than real if one considered that the “real likelihood” test examined in Tang Kin Hwa was not the test set out in R v GoughELR[1993] AC 646 (“Gough”) but the test set out in Porter v MagillWLR[2002] 2 WLR 37 (“Porter”). As between the test in Porter (which was endorsed in Tang Kin Hwa) and the “reasonable suspicion” test (endorsed in Re Shankar Alan), there was a fundamental commonality in perspective. Under both tests, the court was to adopt the vantage point of a reasonable observer. In Tang Kin Hwa, the court noted that the court's role was not to replace the reasonable man, but to ascertain the perspective of the public – and to that extent (and to that extent only) “personify” the reasonable man. The court also drove home the point that the “reasonable suspicion of bias” test had to be applied without attributing any specialist knowledge to the reasonable person. All this was contrary to the approach in Gough and consistent with Re Shankar Alan. Perhaps most importantly, the court in Tang Kin HwaENR was at pains to emphasise that the “real likelihood of bias” was indeed concerned with the appearance of bias (and not actual bias): at [29] and [90] to [92].

(2) Once it was appreciated that there was this commonality in perspective, there was no longer a...

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