Tow v Tov

• Jurisdiction: Singapore
• Judge: Aedit Abdullah JC
• Judgment Date: 19 December 2016
• Court: High Court (Singapore)
• Docket Number: Appeal from the Family Justice Courts No 22 of 2016
• Date: 19 December 2016

TOW

and

TOV

[2016] SGHCF 16

Aedit Abdullah JC

Appeal from the Family Justice Courts No 22 of 2016

High Court

Courts and Jurisdiction — Judges — Recusal — Litigant in divorce ancillary matters proceedings seeking recusal of judge who had previously made adverse findings and remarks against her in granting personal protection order against her for protection of her eldest daughter — Whether judge ought to have recused herself for apparent bias

The appellant ex-wife (“the Appellant”) and the respondent ex-husband (“the Respondent”) divorced in 2013. In 2014, the Respondent applied for a personal protection order (“the PPO”) against the Appellant for the benefit of their eldest daughter (“the Daughter”). A district judge (“the District Judge”) granted the PPO after a trial. In the course of assessing the evidence, the District Judge made certain adverse findings and remarks against the Appellant, including that she was an untruthful witness who gave unreliable evidence. Subsequently, when ancillary matters of the divorce pertaining to the Daughter and the parties' two other children became fixed before the District Judge, the Appellant applied for the District Judge to recuse for apparent bias. She alleged, among other things, that a reasonable, fair-minded and informed member of the public would have a reasonable suspicion that the District Judge, having found against the Appellant in the PPO proceedings, would have a pre-conceived notion of the Appellant's character and would be unconsciously affected by bias if she were to now hear the ancillary matters. The District Judge declined to recuse, leading to the present appeal.

Held, dismissing the appeal:

(1) The test for recusal for apparent bias in Singapore was whether the circumstances complained of would give rise to a reasonable suspicion or apprehension in a fair-minded reasonable person with knowledge of the relevant facts that the judge was biased (“the reasonable suspicion test”): at [31].

(2) Different tests for apparent bias were adopted in England and Australia. In England, the test was whether there was a real possibility or danger or risk of the tribunal or judge being biased. The test in Australia was broadly similar to that in Singapore, except that it imposed a second step which required a nexus between the possible bias and the issues that the judge would be required to determine in the future if he did not recuse himself. It was not appropriate to adopt this second step in Singapore given that the reasonable suspicion test was aimed at considering the perception of bias measured through a hypothetical observer. Since the issue was one of reasonable perception, whether or not a nexus existed was immaterial: at [32] and [33].

(3) The normal work of and discharge of functions by a judge would not, unless the specific facts of a case were exceptional, be matters that would give rise to a reasonable suspicion or apprehension of bias. A judge in our adversarial system would be expected to sift through the evidence and evaluate the credit and credibility of witnesses who testified. Where a judge considered that witnesses had been mistaken, deficient, or untruthful, he or she should make the necessary findings. There was a need to ensure that litigants should not pick their own judges or disrupt proceedings and against this backdrop, the primary concern of the apparent bias rule was to root out any untoward behaviour that went beyond the pale: at [34] and [36].

(4) A fair-minded member of the public would, in the absence of triggers such as indications of unfairness on the part of the judge or the use of intemperate or exaggerated language against a litigant giving rise to a reasonable suspicion of bias, accept that judges would aim to fulfil their duties conscientiously. Such a fair-minded member of the public would not readily conclude that a judge could not separate in his or her mind the findings made in one set of proceedings from that in another or bring a fresh understanding and perspective to subsequent proceedings, despite an earlier finding adverse to one side: at [50] to [52] and [57].

(5) In determining a recusal application premised upon adverse findings or remarks made by a judge against a litigant in prior proceedings, the focus of the Court's concern was whether those findings or remarks would reasonably and fairly trigger a concern that the judge would bring in extraneous matters to the determination of the present case. The mere fact that the judge had previously made adverse comments or findings against a litigant was, on its own, not sufficient for a recusal application to succeed, unless he or she had in the previous case rejected the evidence of the litigant in such outspoken, extreme and unbalanced terms as to throw doubt on his ability to approach the litigant's evidence with an open mind on any later occasion or to try the issue with an objective judicial mind: at [42].

(6) The District Judge had applied the appropriate test for apparent bias and had rightly reached the conclusion that there was no apparent bias on the facts. The remarks she made in the PPO proceedings were part and parcel of the judicial process for assessing evidence, and did not display such intemperate language that a reasonable perception of bias would be engendered. Furthermore, the District Judge's findings in the PPO proceedings were upheld on appeal and this showed that her assessment of the evidence was properly done. But even had the decision been reversed, that did not mean that a reasonable suspicion of bias would necessarily have been engendered, for an error in law or fact did not mean that bias was present or an appearance of bias was created: at [37], [43], [45] and [46].

(7) Further, the findings made by the District Judge in the PPO proceedings did not compel her to reach an adverse conclusion against the Appellant in the ancillary matters. The focus for granting a PPO order was protection against family violence, while the ancillary matters which pertained to the custody, care or control of the Daughter and her siblings entailed consideration of a spectrum of factors, including most importantly the children's welfare: at [54] to [56].

[Observation: PPO proceedings were civil in nature. That the factual grounds for a PPO or breach of a PPO might give rise to possible offences did not cloak the PPO with a criminal nature. The reference to “quasi-criminal proceedings” in the Family Justice Act 2014 (Act 27 of 2014) was presumably intended to cover various proceedings which were not clearly civil in nature. There was nothing to suggest that the term was intended to characterise PPO proceedings: at [60] and [61].

There was an increasing trend of docketing where all matters pertaining to a case were assigned to a single judge. Prior findings and pronouncements made by a docket judge against a litigant would not debar him from deciding other interlocutory matters or the main case on the basis of apparent bias, unless those findings were accompanied by remarks that were so untoward or unsupported by the evidence. The assessment of the credibility of witnesses was part and parcel of the normal discharge of judicial duties and functions, which a judge would be expected to carry out professionally in a disinterested manner. Without evidence of remark or conduct by the judge of an out-of-the-ordinary nature, there would be nothing to excite reasonable suspicion of apparent bias: at [63].]

Case(s) referred to

Hearst & Hearst [2011] FamCA 470 (refd)

Jarrah & Fadel (Disqualification) [2015] FamCAFC 163 (refd)

Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1992] 1 SLR(R) 791; [1992] 2 SLR 310 (folld)

JRL, Re; ex parte CJLUNK (1986) 161 CLR 342 (folld)

JSC BTA Bank v AblyazovWLR [2013] 1 WLR 1845 (folld)

Locabail (UK) Ltd v Bayfield Properties LtdELR [2000] QB 451 (folld)

Manjit Singh s/o Kirpal Singh v AG [2013] 2 SLR 1108 (folld)

Murray & Tomas [2011] FamCAFC 81 (refd)

Ong Wui Teck v Ong Wui Swoon [2016] 2 SLR 1067 (folld)

Otkritie International Investment Management Ltd v UrumovUNK (2014) EWCA Civ 1315 (refd)

R v GoughELR [1993] AC 646 (refd)

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

Stephens v Stephens (Disqualification) [2010] FamCAFC 206 (refd)

Tan Hock Chuan v Tan Tiong Hwa [2002] 2 SLR(R) 90; [2002] 3 SLR 145 (folld)

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

TCV v TCU [2015] SGFC 3 (refd)

Triodos Bank NV (No 1) v DobbsUNK [2005] EWCA Civ 468 (refd)

Vakauta v KellyUNK (1989) 167 CLR 569 (refd)

Legislation referred to

Family Justice Act 2014 (Act 27 of 2014)

Penal Code (Cap 224, 2008 Rev Ed) s 321

Women's Charter (Cap 353, 2009 Rev Ed) s 65, s 65(8), s 124, s 125(2)

Bachoo Mohan Singh and Alwyn Kok (Bachoo Mohan Singh Law Practice) for the appellant;

Yap Teong Liang and Tan Hui Qing (T L Yap Law Chambers LLC) for the respondent.

19 December 2016

Judgment reserved.

Aedit Abdullah JC:

Introduction

1 The question for determination in this appeal is whether a judge or tribunal should recuse when he or she had in earlier proceedings on a separate but factually connected matter made adverse findings and remarks in the course of assessing the evidence of a dissatisfied party. The appellant (“the Appellant”) seeks the recusal of the district judge (“the District Judge”) in the ancillary matters hearing in the divorce proceedings between her and her ex-husband, as the same district judge had earlier made a personal protection order against the Appellant, in the course of which she had found the Appellant to be an untruthful witness. The District Judge declined to recuse herself, leading to the present appeal.

2 After consideration of the arguments and affidavits, I have for the reasons below reached the conclusion that the appeal should be dismissed.

Background

3 The parties, the appellant ex-wife and the respondent ex-husband, were married in August...