Case Summaries

BOI v BOJ [2018] SGCA 61

SUPREME COURT OF SINGAPORE

4 October 2018

Case summary

BOI v BOJ [2018] SGCA 61

Civil Appeal No 189 of 2017

----------------------------------------------------------------------------------------------------------------

Decision of the Court of Appeal (delivered by Judge of Appeal Andrew Phang Boon Leong):

The Court of Appeal provides guidance in relation to the test of apparent bias, and affirms the High Court Judge’s dismissal of the recusal application brought against her.

Background

1.The parties to the appeal are former spouses. At the time of the recusal application, they were in the midst of divorce proceedings. The ancillary matters were scheduled to be heard by the High Court Judge (“the Judge”) between November 2016 and July 2017. Before the conclusion of the ancillary matters, and before the issuance of any decision in respect of these matters, the ex-wife made an application for the Judge to recuse herself on grounds of apparent bias.

2. The Judge saw no reason to recuse herself. She referred to the Family Justice Rules 2014 (GN No S 813/2014) which provided that she was entitled to adopt a judge-led approach. She dismissed any allegation of prejudgment as there were still issues that had not been covered, and the factual matrix would have to be viewed in its entirety in order to arrive at a decision on the division of matrimonial assets and maintenance. The ex-wife appealed, arguing that the Judge applied the wrong test (the “real danger” or “real likelihood” test), and that apparent bias was made out on the facts.

Decision on appeal

3. The Court of Appeal restated the test for apparent bias in Singapore. The question to be asked is whether there are circumstances that would give rise to a reasonable suspicion or apprehension of bias in the fair-minded and informed observer. The test is objective. A reasonable suspicion or apprehension arises when the observer would think, from the relevant circumstances, that bias is possible. 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. ([103])

4. The Court of Appeal found that apparent bias was not made out. First, the parties were unable to narrow the disputed issues and facts to a more limited scope, and were pursuing every last point. The Judge therefore had to play a more active role in case management, and the fair-minded observer would have concluded that the Judge was not affected by bias, but was determined to expedite the proceedings instead. Second, the Judge’s annoyance with the snail’s pace at which the proceedings were going was expressed towards both parties and their respective counsel. Third, even if the Judge expressed her annoyance and frustration and was not a model of patience with the parties, that would not necessarily amount to apparent bias. Fourth, the Judge had not prejudged the specific issue complained about. Fifth, the argument on unequal treatment (which was based on the Judge’s preference for the Respondent’s case and the greater leeway that the Judge purportedly showed to the Respondent in respect of documentary proof) was a matter for appeal, not recusal. ([120], [126], [128], [129], [132], [133])

5. The Court of Appeal also found that the Judge had not excessively interfered with the proceedings. Counsel for the ex-wife was not unduly hampered in the presentation of the ex-wife’s case; on the contrary, ample opportunity was afforded to tender written submissions and joint summaries. The argument that the Judge had descended into the arena was based on one brief exchange, and it was too much of a stretch to conclude that the Judge had descended into the arena and pursued a particular position as an advocate when all the Judge had been doing was merely expanding upon and clarifying the point that the ex-husband was making. ([136], [137])

 

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.

YOU MAY ALSO BE INTERESTED IN