Png Hock Leng v AXA Insurance Pte Ltd [2022] SGHC(A) 10

Introduction

As noted by the Court of Appeal in Ong Wui Teck v Attorney-General [2020] 1 SLR 855 (“Ong Wui Teck”) at [26], the Oath of Office taken by every judge, judicial commissioner and senior judge of the Supreme Court of Singapore pursuant to Art 97(1) of the Constitution of the Republic of Singapore (2020 Rev Ed) emphasises how vital the qualities of judicial independence and impartiality are to the role and function of a judge. Allegations of bias, impropriety and dishonesty have the potential to undermine public confidence in the judiciary and its administration of justice.

The Singapore courts have repeatedly cautioned against the making of unfounded allegations of judicial bias. Most recently, in BOI v BOJ [2018] 2 SLR 1156 (“BOI”) at [141], the Court of Appeal stated that:

Similarly, in Soh Rui Yong v Liew Wei Yen Ashley [2021] SGHC 96 at [48], the High Court held that “allegations of … judicial bias, while necessary when appropriate, are extremely serious and should only be employed with great circumspection and care. Inevitably they occasion costs to clients, public resources and the justice system as a whole”. In Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd [2021] 2 SLR 440 (“Noor Azlin”) at [118], the Court of Appeal cautioned again that “allegations of bias against sitting judges in Singapore have the potential to undermine public confidence in the administration of justice and are never to be taken lightly” [emphasis added].

The court has to be vigilant in order to guard against the use of unfounded allegations of bias to engage in judge shopping as a procedural strategy. It is important to ensure that litigants do not have the misconceived idea that they may pick their own judges or disrupt proceedings with such applications (TOW v TOV [2017] 3 SLR 725 at [36]). Judges should no more choose their cases than lawyers choose their judges (Raman Dhir v Management Corporation Strata Title Plan No 1374 [2021] 4 SLR 1215 at [10]). That is why unless there are proper grounds for a recusal, the court must be careful not to accede to such applications by litigants who do not want a case to be heard by a particular judge. Judge shopping cannot be condoned as it is insidious, and undermines and weakens the administration of justice (Chee Siok Chin and another v Attorney-General [2006] 4 SLR(R) 541 at [10]).

In our judgment, the present application, AD/SUM 6/2022 (“SUM 6”), filed by the applicant, Png Hock Leng, seeking the recusal of Justice Chua Lee Ming (“the Judge”) from his appeal, AD/CA 102/2021 (“AD/CA 102”), is simply another instance of impermissible judge shopping. We have no hesitation in dismissing his baseless application in full.

The relevant background

We begin by briefly sketching the relevant background. AD/CA 102 is the applicant’s appeal against Justice Lee Seiu Kin’s decision in HC/RA 162/2021, which affirmed Assistant Registrar Kenneth Wang’s decision in HC/OS 171/2021 (“OS 171”), to dismiss his application to transfer the whole of MC/MC 146/2020 (“MC 146”) from the Magistrate’s Court to the General Division of the High Court.

In AD/CA 102, the applicant contends that he has the right to transfer MC 146 to the High Court under s 54E of the State Courts Act (Cap 321, Rev Ed 2007) (“SCA”) because his counterclaim in MC 146 exceeds the District Court’s jurisdiction. Alternatively, MC 146 ought to be transferred under s 54B of the SCA because there is “sufficient reason”, an important question of law or MC 146 is a test case and there would be no irreparable prejudice to the counterparty. The respondent, AXA Insurance Pte Ltd, opposes the transfer application.

On 28 December 2021, the parties were informed that AD/CA 102 was to be heard in the sitting of the Appellate Division of the High Court from 31 January 2022 to 11 February 2022. The hearing fixture list disclosed that the Judge would be on the coram.

On 5 January 2022, an adjournment was granted at the request of counsel for the applicant to refix the hearing date to the sitting of the Appellate Division of the High Court commencing on 7 March 2022.

Subsequently, on 9 February 2022, the applicant wrote a letter to the Registry of the High Court requesting that AD/CA 102 not be fixed before the Judge because the appeal concerned principles stated in Autoexport & EPZ Pte Ltd (formerly known as AJ Towing (S) Pte Ltd v TOW77 Pte Ltd [2021] 4 SLR 1201 (“Autoexport”), a decision of the Judge sitting in the General Division of the High Court. On 14 February 2022, the parties were informed by way of the fixture list that the Judge would be on the coram. At a case management conference on the same date, the applicant reiterated his request that AD/CA 102 not be fixed before the Judge on the basis of apparent bias. The applicant was directed to file a recusal application with supporting affidavit if so advised to do so.

The applicant proceeded to file SUM 6 on 21 February 2022 seeking the recusal of the Judge from hearing AD/CA 102 and the stay of AD/CA 102 pending the outcome of SUM 6 including any appeals therefrom. We reproduce the grounds stated in his supporting affidavit dated 18 February 2022 as follows:

The parties’ arguments

The applicant’s case for recusal is grounded on apparent bias. As the applicant seeks to argue in AD/CA 102 that Autoexport was wrongly decided, he somehow sees the Judge as effectively sitting in an appeal against his own earlier decision. Further, the applicant argues that the objective observer would have knowledge of the facts and the novelty of the legal principles stated in the Judge’s decision of Autoexport because it was decided relatively recently and publicised. The objective observer would also know of the principle of stare decisis and that a litigant would have to appeal to a higher court in order for a precedent to be overruled and that an appeal would be dismissed if the Judges of the Appellate Division hearing the appeal are evenly divided under s 33(3) of the Supreme Court of Judicature Act 1969 (2020 Rev Ed).

Given that Lee J and Wang AR dismissed the applicant’s transfer application in OS 171 on the basis of the principles stated in Autoexport and the applicant is similarly a counterclaimant seeking a transfer of proceedings to the High Court based on the fact that the quantum of the counterclaim exceeds the District Court’s limit, the fair-minded observer would conclude that “the very Judge who set the precedent in the General Division, effectively sitting in an appeal against his own decision, is unlikely to give a different result in the Appeal in the Appellate Division as judges are impartial and would apply the same principles to similar cases, especially given the short passage of time”. The failure of the Judge to give a different result would cause the applicant’s appeal to be dismissed regardless of the views of the other judge on the coram. If his appeal is dismissed, it would not be a fanciful belief for the objective observer to attribute the dismissal to the lack of desire of the Judge to “go behind and condemn” the very principles that he had set, or a desire to affirm his own precedent, an opportunity that he would not have had if this was an appeal in Autoexport itself. Therefore, a reasonable suspicion that a fair hearing for the applicant is not possible may arise if the Judge hears AD/CA 102.

The respondent opposes the recusal application on the basis that no fair-minded, informed and reasonable observer would reasonably suspect or apprehend that there would be bias on the Judge’s part and/or that the Judge would reach a final and conclusive decision on AD/CA 102 before being made aware of all relevant evidence and arguments which the parties wish to put before him, such that he approaches the matter at hand with a closed mind. It argues that the applicant has not identified any reason to support his allegation of apparent bias beyond his bare assertion that the Judge decided Autoexport.

The respondent argues that the court should view the application with great circumspection and guard against judge shopping. The applicant’s allegation of appearance of or apparent bias is plainly unmeritorious since it is only based on his own bare assertion and it is trite that a judge’s previous judicial decision is an irrelevant factor in determining whether apparent bias is present. It is also well-settled that judges have considered, on appeal, principles which they had enunciated in their earlier judgments.

The applicable law

It is common ground between the parties that the doctrine of apparent bias in Singapore is that stated by the Court of Appeal in BOI at [103] as follows:

(a) The applicable test is whether there are circumstances that would give rise to a reasonable suspicion or apprehension of bias in the fair-minded and informed observer. This is not any different from asking whether the observer would conclude that there was a “real possibility” of bias, bearing in mind that the word “real” here refers to the degree of likelihood of bias (which must be substantial and not imagined), and not whether the bias is actual.

(b) As the test for apparent bias involves a hypothetical inquiry into the perspective of the observer and what the observer would think of a particular set of circumstances, the test is necessarily objective.

(c) A reasonable suspicion or apprehension arises when the observer would think, from the relevant circumstances, that bias is possible. It cannot be a fanciful belief, and the reasons for the suspicion must be capable of articulation by reference to the evidence presented. But adopting a standard of possibility rather than probability furthers the vital public interest of ensuring that the administration of justice is beyond reproach from the perspective of reasonable members of the public.

(d) In establishing whether the observer would harbour a reasonable suspicion of bias, the court must be mindful not to supplant the observer’s perspective by assuming knowledge outside the ken of reasonably well-informed members of the public (ie, detailed knowledge of the law and court procedure, or insider knowledge of the inclinations, character or ability of the members of the court or adjudication body). The observer would be informed – that is, he or she would be apprised of all relevant facts that are capable of being known by members of the public generally. The observer would also be fair-minded; he or she would be neither complacent nor unduly sensitive and suspicious. He or she would know the traditions of integrity and impartiality that administrators of justice have to uphold, and would not jump to hasty conclusions of bias based on isolated episodes of temper or remarks taken out of context.

(e) In line with (d), the relevant circumstances which the court may take into account in finding a reasonable suspicion of bias would be limited to what is available to an observer witnessing the proceedings. Such circumstances might include, for example, the demeanour of the judge and counsel, the interactions between the court and counsel, and such facts of the case as could be gleaned from those interactions and/or known to the general public.

We also note the related rule against prejudgment which prohibits the decision-maker from reaching a final, conclusive decision before being made aware of all relevant evidence and arguments which the parties wish to put before him or her. While it has been said that prejudgment is distinct from apparent bias, the preponderance of authority refers to prejudgement as something that amounts to apparent bias. To establish prejudgment amounting to apparent bias, it must be established that the fair-minded, informed and reasonable observer would, after considering the facts and circumstances available before him, suspect or apprehend that the decision-maker had reached a final and conclusive decision before being made aware of all relevant evidence and arguments which the parties wish to put before him or her, such that he or she approaches the matter at hand with a closed mind (BOI at [107]–[109]).

Our decision

In our judgment, there is no evidence of apparent bias to begin with. The “reasons” given are in the nature of arguments in light of the absence of material to satisfy the test of apparent bias. We now elaborate.

At the outset, it is evident that the applicant’s case is entirely devoid of factual basis. Besides a bare assertion that the Judge “may have an interest in the principles stated in [Autoexport] therein being affirmed and/or not being overruled” (see above at [10]), the applicant produces no objective evidence or factual allegations that are capable of showing even the slightest indication of apparent bias on the part of the Judge. Unlike most cases of apparent bias, there is no allegation here that the Judge said anything inappropriate or acted in any way which may potentially evince bias in favour of a particular result or a closed mind towards AD/CA 102. There is only unfounded speculation and fear on the part of the applicant that the Judge would rule against him because the Judge has an interest in not seeing his decision in Autoexport overturned.

It is well-settled that such bare allegations do not suffice to make out a case of apparent bias. As the Court of Appeal stated in Tang Liang Hong v Lee Kuan Yew and another and other appeals [1997] 3 SLR(R) 576 at [51], a claim of apparent bias on the part of a judge must be based on facts that are substantially true and accurate. The fact that an allegation of bias has been made against a judge is not enough; otherwise a party could secure a judge of his choice by merely alleging bias on the part of another or other judges. A judge is not obliged to withdraw based on facts which are inaccurate, false or devoid of substantiation. The Court of Appeal went on to quote the decision of the New South Wales Court of Appeal in Bainton v Rajski (1992) 29 NSWLR 539 where Mahoney JA said, at 541:

More recently, in Noor Azlin at [117], the Court of Appeal had strong words against the “spurious and unwarranted nature of the allegations” made by counsel applying for a transfer to the Court of Appeal. There, counsel submitted that the judges of the Appellate Division would “feel constrained against overturning and/or overruling the decision(s) made by the President of the Appellate Division” and the transfer ought to be made on this basis (at [114]). The Court of Appeal found it “deeply troubling that such allegations [were] being levelled against the Judge and other members of the AD, especially when no basis – whether reasoned or otherwise – ha[d] been provided for them” (at [115]). It noted that there was absolutely no indication (and none had been provided by counsel) that any judge sitting in the Appellate Division will be influenced by this fact when hearing the appeal.

We too find the present allegations by the applicant spurious and unwarranted. The mere fact that the Judge decided Autoexport, a case which involves the same statutory provisions of the SCA, and set out his views on those provisions cannot possibly be any indication of apparent bias. A reasonable observer who is not unduly sensitive or suspicious would not jump to the conclusion that the Judge would not be open to reconsider the principles stated in Autoexport upon new arguments. Without any evidential basis supporting the bare assertion that the Judge has an interest in not seeing his own decision overruled, we find the applicant’s arguments fanciful, speculative and wholly unmeritorious.

There is also no basis for the applicant’s bizarre submission that the Judge would “effectively be sitting in an appeal against his own decision”. This is merely an attempt to skew the picture. AD/CA 102 is not an appeal against the Judge’s decision in Autoexport. More accurately, the Judge would simply be hearing an appeal in which the legal principles he had enunciated in a lower court decision is being challenged. This is by no means novel. The Court of Appeal routinely considers lower court decisions decided by a judge in the High Court (who may well be sitting on the coram for that particular appeal after having been elevated to the Court of Appeal). This is an inescapable practical reality given the limited number of appellate judges in our courts and the wealth of judicial experience of our appellate judges. If an appellate judge had to recuse himself or herself on the basis that the judge had decided a similar case which is now challenged on appeal, there would not be enough appellate judges to hear the multitude of appeals involving the myriad of legal principles.

We also note that the applicant attempted to distinguish the case of Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 166 ALR 302 (“Helljay Investments”) (see [26] below for the relevant passages) by alleging that, unlike in the present case, “there was no element of a hearing by a Judge who is temporally elevated into a higher court to hear an appeal effectively against his novel decision in a lower court”. Apart from being utterly lacking in any factual basis whatsoever, we find this allegation clearly mischievous. The Judge has been assigned since July 2021 to sit in the Appellate Division of the High Court and he has heard several other cases listed before the Appellate Division. As stated above (at [7]), parties were notified as early as 28 December 2021 that the Judge would be on the coram hearing AD/CA 102. We are concerned that counsel’s submissions made on behalf of the applicant appear to give rise to an insinuation that there was some deliberate contrivance to have the Judge on the coram specifically so that he can be a judge in his own cause as it were. Needless to say, such an insinuation is patently absurd and as stated, mischievous. We remind counsel of the Court of Appeal’s caution in Noor Azlin at [118] that whilst it is undoubtedly the duty of every counsel to put forward all available arguments in the best interests of his or her client, it is equally important for counsel to recognise his or her overarching duty as an officer of the court. The balancing of these duties requires counsel to make submissions in a responsible manner.

Further, the applicant’s case is also devoid of any legal merit. The mere fact that a judge had previously ruled or opined extra-judicially on a particular legal principle which is being challenged on appeal does not point towards prejudgment or apparent bias. While litigants may quite naturally surmise that the judge may rule in a particular manner consistent with the judge’s previously expressed views, this is not an acceptable basis to infer that the judge has somehow prejudged the matter or would be biased in favour of a particular result, both of which have to be supported by evidential material.

This is well explained in two decisions of the High Court of Australia. In Re JRL (1986) 66 ALR 239 at 245 to 246, Mason J observed that:

In Helljay Investments at [12], Hayne J stated that:

Certainly, a judge may have formed some provisional views before a hearing. However, an open mind does not mean an empty mind (Prometheus Marine Pte Ltd v King, Ann Rita [2018] 1 SLR 1 at [39]). Even if the judge has provisional views based on his or her previous decisions, much ultimately depends on the particular facts of the matter and the arguments made by counsel. After all, a judge’s impartiality necessitates an open mind to consider new arguments and evidence brought up by counsel in every case which may very well change a judge’s mind.

Indeed, it would be contrary to fair-mindedness and reasonableness for the objective observer to think that a judge has any interest in his previous decisions being affirmed or overturned. As stated in BOI at [103(d)] (see [15(d)] above), the observer “would know the traditions of integrity and impartiality that administrators of justice have to uphold”. It is precisely the quality of impartiality that requires the judge sitting at the appellate level to reconsider the correctness of the legal principles that the judge himself or herself had enunciated in a lower court with the benefit of new legal arguments by counsel and a view of achieving justice for the parties.

Finally, we highlight that it is not unusual for our judges to reconsider previous rulings on the basis of new arguments and come to a different view. For instance, in Miao Weiguo v Tendcare Medical Group Holdings Pte Ltd and another [2021] SGCA 116 (“Miao Weiguo”) at [6], the Court of Appeal considered the reflective loss principle and overruled a previous Court of Appeal decision, Townsing Henry George v Jenton Overseas Investment Pte Ltd (in liquidation) [2007] 2 SLR(R) 597 (“Townsing”). Andrew Phang Boon Leong JCA, delivering the judgment of the Court of Appeal, noted at [9] that he was also on the coram of Townsing and stated as follows:

Indeed, the quality of judicial humility is fundamental to a judge’s integrity. It goes without saying that every judge (especially an appellate judge) will naturally be open to consider new arguments which may lead the judge to reconsider a previously taken view of the law. After all, judges aim to do justice in every case before the courts. To the extent that the applicant seeks to imply otherwise in this application, we soundly reject it in its entirety.

Similarly, in Astro Nusantara International BV and others v PT Ayunda Prima Mitra and others [2013] 1 SLR 636 (“Astro (HC)”) at [120], I expressed the obiter view that the three-month time limit in Art 34(3) of the UNCITRAL Model Law on International Commercial Arbitration (“Model Law”) did not apply to a setting-aside application on the basis of fraud under s 24 of the International Arbitration Act (Cap 143A, 2002 Rev Ed) (“IAA”). Subsequently, in Bloomberry Resorts and Hotels Inc and another v Global Gaming Philippines LLC and another [2021] 3 SLR 725 at [40], I reconsidered my obiter view expressed in Astro (HC) and was persuaded by new arguments by counsel to come to the opposite conclusion that an application to set aside an arbitral award under s 24 of the IAA would still be subject to the three-month time limit in Art 34(3) of the Model Law.

In our judgment, a fair-minded reasonable observer would not reasonably suspect or apprehend that there would be bias on the Judge’s part and/or that the Judge would reach a final and conclusive decision on AD/CA 102 before being made aware of all relevant evidence and arguments which the parties wish to put before him such that he would approach the matter at hand with a closed mind.

Conclusion