Pradeepto Kumar Biswas v Gouri Mukherjee and another

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 05 October 2022
• Neutral Citation: [2022] SGCA 63
• Court: Court of Appeal (Singapore)
• Docket Number: Originating Application No 2 of 2022, (Summons No 15 of 2022)
• Published date: 08 October 2022
• Year: 2022
• Hearing Date: 15 August 2022
• Plaintiff Counsel: The applicant (in person)
• Defendant Counsel: See Chern Yang and Cheng Hiu Lam Larisa (Drew & Napier LLC)
• Citation: [2022] SGCA 63

Steven Chong JCA (delivering the judgment of the court): Introduction

A married couple (“the Mukherjees”) sued Mr Pradeepto Kumar Biswas (“Mr Biswas”) some eight years ago for breaching fiduciary duties he owed in the handling of their “investments” which they claimed were shams. They were successful and were awarded a judgment sum several years later. Although Mr Biswas appealed, this was eventually struck out and it appeared that this was the end of the matter. But two years later, when the Mukherjees attempted to enforce the judgment debt against Mr Biswas via bankruptcy proceedings, Mr Biswas initiated multiple proceedings to set aside the judgment debt and the judgment itself. The applications before us are the latest in these attempts.

Background

The Mukherjees’ suit against Mr Biswas was the subject of HC/S 1270/2014 (“Suit 1270”) and was heard before Belinda Ang J (as she then was). Ang J issued her judgment in Sabyasachi Mukherjee and another v Pradeepto Kumar Biswas and another suit [2018] SGHC 271 (“the Trial Judgment”). Therein, Ang J allowed the Mukherjees claim, finding that Mr Biswas had breached his fiduciary duties to the Mukherjees. Mr Biswas was made liable to pay US$3.45m (“the Judgment Debt”) to the Mukherjees.

Mr Biswas appealed against this decision by way of CA/CA 2/2019 (“CA 2”), but this was ultimately struck out by this court in November 2019 after Mr Biswas breached an unless order: see Pradeepto Kumar Biswas v Sabyasachi Mukherjee and another [2019] SGCA 79 (“the Striking Out Judgment”).

On 13 July 2021, the Mukherjees served on Mr Biswas a statutory demand premised on the Judgment Debt (“the Statutory Demand”). He challenged this in HC/OSB 74/2021 (“OSB 74”), arguing that it should be set aside on the premise that the Judgment Debt was disputed on substantial grounds. The basis of Mr Biswas’s challenge was that the Mukherjees had procured the Judgment Debt by fraud because they had committed perjury in Suit 1270. The main evidence that he relied on was a letter from Tan Kok Quan Partnership, the Mukherjees’ previous lawyers (“the TKQP Letter”).

Mr Biswas’s challenge failed before an Assistant Registrar (“AR”), so he appealed by way of HC/RA 260/2021 (“RA 260”). Vinodh Coomaraswamy J heard RA 260 and agreed with the AR, finding that there were no grounds to set aside the Statutory Demand. He thus dismissed RA 260 in October 2021.

Dissatisfied, Mr Biswas sought permission to appeal against the decision in RA 260 (“the RA Decision”) by way of AD/OS 53/2021 (“OS 53”) We note that at the time of OS 53, the Rules of Court (2014 Rev Ed) (“ROC 2014”) used the terminology of “leave to appeal”, but for simplicity, we adopt the current terminology of “permission to appeal” throughout this judgment.

As per the ROC 2014, Mr Biswas was required to apply for permission to appeal by 13 October 2021. Originally, he filed a summons before the High Court on 12 October 2021, but he was informed on 26 October 2021 that this was incorrect because for permission to be obtained, he would have to make an application to the appellate court and this would thus require an originating summons. Accordingly, he withdrew the summons and later filed OS 53 on 8 November 2021, a delay of almost one month. He thus also sought extensions of time to file the application for permission to appeal; and to file the appeal against the RA Decision. Ultimately OS 53 was dismissed in its entirety by the Appellate Division of the High Court (“Appellate Division”) on 4 May 2022.

The present applications

Mr Biswas now brings CA/OA 2/2022 (“OA 2”) under the Rules of Court 2021 (“ROC 2021”), seeking permission to appeal against the Appellate Division’s decision to dismiss OS 53. He claims that there is a point of law of public importance that will arise in an appeal against OS 53, and it would thus be appropriate for this court to hear it.

In addition, he has filed CA/SUM 15/2022 (“SUM 15”), an ancillary application for the recusal of Andrew Phang JCA from considering and deciding OA 2 on the basis that justifiable doubts have arisen over Phang JCA’s impartiality, ie, that there was an appearance of bias. In support of this allegation, Mr Biswas raises several other related proceedings in which Phang JCA was involved. In response, the Mukherjees sought to rely on affidavits in previous proceedings involving Phang JCA. We granted permission for them to rely on these affidavits, either in whole or in part.

The Recusal Application

We begin first with SUM 15, Mr Biswas’s application for Phang JCA to recuse himself.

General observations on allegations of apparent bias

At the outset, we must stress that allegations of judicial bias are extremely serious. They can damage the integrity of the judiciary and throw the entire administration of justice into disrepute. By their very nature, they should be “rare in the extreme” and made with the utmost circumspection and precision. Furthermore, allegations of bias can be used as “weapon[s] of abuse” by disgruntled litigants, and waste judicial time and resources. This court has previously warned that such allegations, if found to be unmeritorious, will elicit serious consequences: BOI v BOJ [2018] 2 SLR 1156 (“BOI”) at [141].

Despite the gravity of the present application, the grounds put forward by Mr Biswas in his submissions are vague. He relies on the fact that CA 2 – his appeal against the decision in Suit 1270 – was struck out by Phang JCA and was thus never heard. But he does not explain why this would give rise to an appearance of bias. Instead, he simply recites jurisprudence on apparent bias without drawing any links to the facts of the present case.

The grounds for SUM 15 are somewhat clearer in Mr Biswas’s supporting affidavit. The suggestion seems to be that Phang JCA should recuse himself because he had dealt with other related matters that were resolved against Mr Biswas. These include CA/OS 24/2021 (“OS 24”), which was an application for a retrial of Suit 1270; CA/OS 10/2016, an application for permission to appeal against a search order that had been granted against him; and CA 2, which was struck out by way of CA/SUM 91/2019 (“SUM 91”) due to Mr Biswas’s breach of an unless order. These were all decided against Mr Biswas, and it seems that based on the mere fact of these adverse orders, he claims that this somehow engenders a perception of bias.

But adverse outcomes may well be due to the fact that the merits of those proceedings were not on Mr Biswas’s side. It must be remembered that apparent bias will only be found where the circumstances give rise to a suspicion or apprehension of bias in the mind of a reasonable observer who is not unduly sensitive or suspicious. Such an observer would not develop doubts (at least not reasonable doubts) simply because a judge makes several adverse decisions against a single litigant. After all, the reasonable observer is also “informed” and would be aware of the “traditions of integrity and impartiality that administrators of justice have to uphold”: BOI at [103]. They would thus also understand that judges often hear multiple parts of what is “essentially a single case” (TOW v TOV [2017] 3 SLR 725 (“TOW”) at [36], cited in Werner Samuel Vuillemin v Overseas-Chinese Banking Corp Ltd and another matter [2018] SGHC 92 at [46]) and thus may be required to make multiple adverse rulings against a single litigant where the merits are not with them.

To be clear, we are not saying that multiple adverse rulings against a single litigant by a single judge can never be grounds for finding apparent bias. There may well be exceptional cases where a judge has consistently ruled against a party in various proceedings and it is appropriate to make a finding of apparent bias. As a preliminary matter, the adverse rulings would have to be made in error. But judicial error alone would not be sufficient – the rulings would typically have to be accompanied by exaggerated or intemperate language (see TOW at [57]), or be based on facts or statements of law that are clearly and inescapably wrong.

We stress that such cases would be extremely rare – for a party to succeed in proving apparent bias based on multiple adverse rulings, a high threshold would have to be crossed. Such a high standard is necessary as a party alleging that an adverse ruling was made erroneously should normally bring an appeal, not a recusal application: see Soh Rui Yong v Liew Wei Yen Ashley [2021] SGHC 96 at [42].

The allegations made by Mr Biswas

Returning to the present application, Mr Biswas does not point to any intemperate language accompanying the decisions made against him. Instead, it seems that his complaint is that there were “errors” in the decisions made by Phang JCA. First, he refers to alleged “cheating” by the Mukherjees which Phang JCA had purportedly ignored. Second, he claims that the coram in CA 2 (which included Phang JCA) was unwilling to “look at the proportionality of the consequence of an unless order”.

But Mr Biswas offers scant evidence in support, and “bare allegations do not suffice to make out a case of apparent bias”: Png Hock Leng v AXA Insurance Pte Ltd [2022] SGHC(A) 10 at [19]. Indeed, it is clear on the evidence that Mr Biswas’s allegations are completely bereft of merit. We consider both in turn.

The consequences of the Unless Order

We first deal with Mr Biswas’s allegation that the coram in CA 2 (which included Phang JCA) was unwilling to “look at the proportionality of the consequence of an unless order”. This refers to the fact that CA 2 was struck out because he had breached an unless order (see [3] above). But on the face of this allegation, it is not clear to us what Mr Biswas’s precise point is and how that would be relevant to a recusal application.

It seems to us that what Mr Biswas is arguing is that CA 2 should not have been struck out merely because he...