Ong Wui Teck v Ong Wui Swoon

• Jurisdiction: Singapore
• Judge: Woo Bih Li J
• Judgment Date: 21 March 2016
• Neutral Citation: [2016] SGHC 42
• Plaintiff Counsel: The plaintiff in person
• Docket Number: HC/Originating Summons No 165 of 2016
• Date: 21 March 2016
• Hearing Date: 04 March 2016
• Subject Matter: Judges,Courts and Jurisdiction,Recusal
• Published date: 29 March 2016
• Citation: [2016] SGHC 42
• Defendant Counsel: Carolyn Tan and Tony Au (Tan & Au LLP)
• Court: High Court (Singapore)
• Year: 2016

Woo Bih Li J: Introduction

The plaintiff, Ong Wui Teck (“Mr Ong”) and the defendant, Ong Wui Swoon (“Mdm Ong”) are two out of six siblings. One of the six siblings passed away in 1990. Mr Ong is the administrator of the estate of their father (“the father”) who died intestate. He is also the executor of the estate of their mother (“the mother”) who had made a Will.

The present application was filed by Mr Ong on 22 February 2016 for me to disqualify myself from hearing all matters pertaining to the mother’s estate. He filed two affidavits in support of this application, which were affirmed on 18 February 2016 and 2 March 2016 respectively. I will refer to them as “his first supporting affidavit” and “his second supporting affidavit” respectively. The application was opposed by Mdm Ong who had affirmed an affidavit on 29 February 2016. I will set out in some detail the background leading to the present application.

The father’s estate

In Suit No 385 of 2011 which concerned the father’s estate, Mdm Ong was the plaintiff and Mr Ong was the defendant. Mdm Ong alleged that Mr Ong had failed to render an accurate account of that estate’s assets. She therefore asked for an order that he (i) render another account and (ii) pay damages for his alleged breach of duty. She also asserted a beneficial interest in the sale proceeds of a private property in the name of Mr Ong which she claimed that Mr Ong had held in trust for the father.

After a trial, I concluded that Mr Ong had not given a proper account of the assets of the father’s estate (“my substantive decision”). However, I also concluded that the private property which he had held in his name was not part of the assets of the father’s estate, ie, he was not holding that property in trust for the father.

I ordered an inquiry before the Registrar of the Supreme Court to determine the assets of the father’s estate based on the specific guidelines which I had set out in my written judgment of 30 October 2012 for my substantive decision, Ong Wui Swoon v Ong Wui Teck [2013] 1 SLR 733 (at [143]–[151]).

As for costs, I initially ordered on 3 February 2014 that each party was to bear his or her own costs of the trial. However, Mdm Ong requested further arguments on this decision and I agreed to the request. After hearing the further arguments on 3 March 2014, I decided that Mr Ong was to pay Mdm Ong some costs of the trial which I fixed at $10,000.

In the meantime, an Assistant Registrar (“AR Leong”) had conducted the inquiry which I had ordered. On 24 September 2013, AR Leong decided that the father’s estate had assets amounting to $15,756.47. He ordered Mr Ong to pay Mdm Ong $1,313 as her one-twelfth share thereof. He also ordered that the costs of the inquiry be agreed or taxed. Although the costs order was made by consent, there was a dispute as to who would be liable for such costs. Eventually AR Leong clarified that his costs order meant that Mr Ong was to pay such costs to Mdm Ong.

Mr Ong then applied for an extension of time to appeal against the AR’s decisions as he was out of time to do so. This application was allowed by another Assistant Registrar (“AR Khng”) on 24 February 2014. Mr Ong then appealed against both the substantive decision and the costs order of AR Leong.

However, Mdm Ong filed an appeal against AR Khng’s decision to grant Mr Ong an extension of time to appeal.

Both the appeals came up for hearing before me on 19 May 2014. I allowed Mdm Ong’s appeal in part in that I set aside AR Khng’s decision to allow the extension of time to appeal against AR Leong’s substantive decision. However, I allowed the extension of time for Mr Ong to appeal against AR Leong’s costs order to remain. Therefore, Mr Ong’s appeal before me remained only in respect of AR Leong’s costs order. After hearing arguments, I set aside AR Leong’s costs order in that such costs were not to be taxed although Mr Ong was still liable to pay the costs of the inquiry. I fixed the quantum of costs that he had to pay for the inquiry at $400. (see Ong Wui Swoon v Ong Wui Teck [2014] SGHC 157).

Mr Ong then filed two appeals in respect of the decisions that I made on 19 May 2014. In response, Mdm Ong filed two applications to strike out both of Mr Ong’s appeals on the ground that he had not obtained the leave of court to appeal to the Court of Appeal.

On 15 October 2014, the Court of Appeal ordered the parties to go for mediation to resolve all the disputes pending between them (and not just the disputes which I had decided on). However, the mediation was apparently unsuccessful and parties appeared before the Court of Appeal again on 9 March 2015. The Court of Appeal then struck out Mr Ong’s appeals on the basis that they were bound to fail. However, the Court of Appeal made no order as to costs in respect of the applications and the appeals to the Court of Appeal and ordered Mr Ong’s security for the costs of the appeals to be released to him.

The mother’s estate

Prior to my substantive decision on the father’s estate, Mdm Ong and other siblings had filed an action in the then-Subordinate Courts in 2005 to challenge the validity of the mother’s Will. The Will was upheld by the District Court in 2007. Appeals to the High Court and to the Court of Appeal were dismissed.

However in 2013, Mdm Ong filed another action in the Subordinate Courts against Mr Ong in respect of the mother’s estate. This was to seek (i) the revocation of Mr Ong’s appointment as executor of the mother’s estate for which he had obtained a grant of probate, and (ii) the appointment of Mdm Ong as administrator in place of Mr Ong.

On 29 September 2015, Mdm Ong’s action was dismissed. She then filed an appeal to the High Court on 13 October 2015. This is HC/DCA 21/2015 (“DCA 21/15”).

Mr Ong then filed HC/OS 11/2016 (“OS 11/16”) to require Mdm Ong to apply for an extension of time to serve various documents on Mr Ong as he alleged that service of such documents had not been effected on him. He also sought other reliefs as set out in more detail in his application.

Apparently, at a pre-trial conference on 26 January 2016, an Assistant Registrar informed the parties that both OS 11/2016 and DCA 21/2015 were fixed for hearing before me and that another two outstanding applications (filed in 2014) concerning the mother’s estate would also be eventually heard by me.

Mr Ong then filed the present application, ie, HC/OS 165/2016 on 22 February 2016 for me to recuse myself from hearing all matters in respect of the mother’s estate.

Mr Ong’s reasons

Mr Ong’s reasons for seeking my recusal, as stated in para 5 of his first supporting affidavit for the present application, were as follows: (a) conflict of interest; (b) absence/lack of independence; (c) biasness; (d) prejudgment/predetermination; and (e) condoning the actions of the opposing party/solicitor that are contrary to and/or an obstruction to justice.

[numbering added]

These reasons may be divided into two broad categories: (i) conflict of interest, and (ii) bias.

I add that in the trial in respect of the father’s estate, Mr Ong was represented by solicitors. Thereafter he represented himself in the matters which I subsequently heard. He has acquired considerable experience in litigation.

Alleged conflict of interest

Mr Ong’s allegation about a conflict of interest was conflated with his allegation of bias on my part.

I gathered from Mr Ong’s first supporting affidavit that he was alarmed because Mdm Ong had asserted that she would rely on findings of fact made by me against him (Mr Ong) in respect of the father’s estate for her current disputes with him in respect of the mother’s estate. As deposed at para 13 of his first supporting affidavit, Mr Ong was afraid that:

[I] would, in all likelihood, uphold [my] prior ruling and not bring an impartial mind to the issues, including the issue of [Mdm Ong’s] obstruction of the estates’ accounting by withholding the files and documents of both the estates of [the] father and [the] mother.

Contrary to Mr Ong’s allegations, the mere fact that a judge has made an adverse ruling or comment against a litigant does not necessarily mean that he should recuse himself in the same or a subsequent matter involving that litigant.

As observed by the English Court of Appeal in Otkritie International Investment Management Ltd [2014] EWCA Civ 135 at [17], a judge who has previously criticized the conduct of a party in the course of his judgment on a matter, which he considers relevant to his decision, is not precluded from hearing a subsequent dispute involving the same party. The judge is simply exercising his judicial function. Only if the views were expressed in such outspoken, extreme, or unbalanced terms as to cast doubt on the judge’s ability to approach the subsequent case with an open judicial mind should he recuse himself. Much turns on the nature of the views expressed previously by the judge and of the objection taken subsequently by the party. In Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at [25], the English Court of Appeal gave the following example:

a real danger of bias might well be thought to arise if … in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakauta v Kelly (1989) 167 C.L.R. 569) … The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or...