By Mark Teng, Executive Director (Profile), Ng Weng Sun, Associate, and Michael Yee, Incoming Trainee ‘23

The ongoing defamation suit in District Court Suit No. 1784 of 2019 (“DC/1784”) between 2 marathon runners, Liew Wei Yen Ashley (“Liew”) and Soh Rui Yong (“Soh”) has been and continues to be a hot topic in Singapore. In part, this is because of Soh’s controversial application for the recusal of District Judge Lee Li Choon (the “DJ” or “DJ Lee”) who is presiding over DC/1784 (the “Recusal Application”).

The Recusal Application was heard and dismissed by DJ Lee, but Soh chose to appeal against this decision by way of a Registrar’s Appeal to the High Court (the “Appeal”). On 30th April 2021, the Honourable Valerie Thean J (“Thean J”) rendered her written judgement (the “Appeal Judgement”) which dismissed the Appeal and this article seeks to inform our readers of the nuances of the said judgement.

Recusal Applications

In order to understand the Appeal Judgement, one must have a bit of background knowledge about the concept of a recusal – a rather obscure part of the law that rarely sees use in the Singapore judicial system.

Judges are oftentimes viewed as infallible officers of the law. However, despite their expertise and experience, they are ultimately still human – and to be human is to err. The recusal of a judge is one of the solutions which our legal system utilises to fix these judicial errors. In essence, a recusal application is one that seeks to summarily dismiss the presiding judge from hearing the case on the account of excessive judicial interference and/or apparent bias.

That said, applications for the recusal of judges are few and far between in Singapore because, in the words of Thean J, recusal applications are “extremely serious and should only be employed with great circumspection and care”. This makes the Recusal Application and the subsequent Appeal an anomaly that warrants some analysis and discussion in the development of this estranged area of the law.

The Appeal

On Appeal, the question before Thean J was whether a recusal application ought to have been granted on the basis of excessive judicial interference and apparent bias by DJ Lee during the hearing of DC/1784. Thean J, accordingly, dismissed the appeal and found no compelling reason for DJ Lee to recuse herself. Thean J reiterated that she was guided by the holding in BOI v BOJ [2018] 2 SLR 1156 (“BOI”).

 The Registrar’s Appeal from the State Courts No 25 of 2020 (“RAS 25”) and No 24 of 2020 (“RAS 24”) were also heard by Thean J and dealt with in the Appeal Judgement. RAS 24 was allowed, and RAS 25 was dismissed.

Public Prosecutor v Chua Siew Wei Kathleen [2016] 2 SLR 713

Recusal applications are rare in Singapore and rarer still are the ones that succeed. Therefore, an analysis of the case of Public Prosecutor v Chua Siew Wei Kathleen [2016] 2 SLR 713 (“Kathleen Chua”) is warranted – not only because the recusal application, in that case, was successful but also because the decision in Kathleen Chua was heavily relied on by Soh in his Appeal.

Kathleen Chua concerned a single charge against the accused for voluntarily causing hurt to a foreign domestic helper. The District Judge, in that case, acquitted the accused as he found that the Prosecution’s case rested on bare allegations and that the charge suffered from a paucity of particulars. The Prosecution appealed the decision and alleged that they were denied a fair opportunity to present their case due to various interventions by the District Judge during the cross-examination of the accused.

See Kee Oon JC (as his Honour then was), the Appellate Judge of that case, eventually found that the Prosecution was unduly impeded in the conduct of their case as the District Judge had disallowed many of the Prosecution’s questions which would have been highly probative in accounting for the credibility of the accused’s version of events (see generally [26] to [28] of Kathleen Chua).

Furthermore, interruptions were made by comments that grew not just in frequency but intensity such as “[m]ove on better”, “painfully drifting” and “I have been tolerating you” to name a few, in a span of a little under two hours of the Prosecution’s cross-examination (Kathleen Chua at [31]). As such, the Court held that the District Judge went beyond the merely intemperate and clearly impeded the Prosecution from conducting their case (at [32]).

Distinguishing Kathleen Chua

In the Appeal, Liew submitted that the facts of Kathleen Chua were different from the facts of the present case, and Thean J agreed.

First, the accused in Kathleen Chua was only cross-examined for 2 hours when the District Judge had interfered excessively and disallowed the Prosecution to prima facie, make its case. On the other hand, Liew was cross-examined over 11 hours across 5 days and the DJ only interrupted insofar as to remind and obtain factual information from Google Maps.

Secondly, the District Judge in Kathleen Chua made several rude comments to the prosecution whilst cutting off their line of questioning. In the present case, the use of “ad nauseum” by DJ Lee was in relation to two days of cross-examination over a figure that was previously established to be an estimate (See generally [22] to [23]). The context in which the words were said in both cases were extremely different and therefore, Thean J did not see any possibility of denial of justice nor excessive judicial intervention.

Excessive Judicial Interference

The “700m issue”

In order for the doctrine of excessive judicial interference to apply, there must have been a possibility of the denial of justice to a particular party (BOI at [111]), occasioned by excessive judicial interference. The keyword here is “excessive” because some form of judicial interference by the judge is necessary and desirable for the purposes of case management but only when it is excessive does it become a problem.

Thean J explains this by saying that the doctrine is not a carte blanche exclusion of any interference, but one that is directed at the prevention of excessive judicial interference (at [9]). The notion of excessive judicial interference is both a qualitative and quantitative inquiry as per BOI at [135]. Qualitative factors concern the purpose, the focus, the effect, tone and demeanour of the judge while quantitative factors concern the frequency and length of the interventions (at [10]).

Soh’s contentions revolved around, inter alia, the DJ’s interruptions during cross-examination regarding what he termed as the “700m issue” and Liew’s use of Google Maps to establish the distance in dispute (at [11]). This was pivotal to Soh’s case in finding whether there was in fact a slow down after the U-turn point (that most athletes including Soh missed) which gave Liew a lead of around 700m.

Soh’s counsel alleged that during his cross-examination, his objective was to establish that the pace of 700m in two and a half minutes was faster than Liew’s average pace for the entire race and therefore, that Liew did not slow down. He then went on to allege that he was not able to make that point but for the DJ’s interruptions (at [12]). However, Thean J found from the transcripts that Soh’s counsel was able to elicit those points prior to the DJ’s intervention which was only towards the end of the second day of trial (at [13]). Furthermore, the DJ’s interjections were mere reminders to Soh’s counsel that the 700m distance was an estimate and any calculations would not establish any cogent evidence per se (at [14]).

It is obvious that Soh’s counsel had ample opportunity to pursue his line of questioning vis a vis the 700m issue. In fact, Soh’s counsel had already stated on the first day of trial that he had obtained the concession he wanted with regards to the 700m issue. However, he then went on to repeatedly use the same figures of 700m and two and a half minutes on the second day of trial for various lines of questioning. Moreover, the transcripts showed that the DJ allowed the same 700m point to be cross-examined in subsequent days. Thus, the DJ’s interruptions were made in the context of a protracted line of questioning that Soh’s counsel repeatedly used without any clear point being elicited. (see generally [15]).

This is in stark contrast to Kathleen Chua whereby the prosecution was not even able to make a point to begin with, and was shot down by the District Judge from the get-go.

The use of Google Maps

Nearer the end of the second day of trial, Liew brought up two landmark clearings that he recalled. It was thereafter that DJ Lee suggested the use of Google Maps to obtain “factual information as regards to distance” since the figures regarding the 700m were estimates. Soh’s counsel agreed but was unable to operate it, and thus the DJ asked Liew’s counsel if he could. Liew’s counsel agreed to assist the court (at [16]).

At that point, Soh’s counsel contended that DJ Lee “descended into the arena”. However, a review of the transcripts showed that this was not the case. DJ Lee was merely attempting to obtain a more objective and accurate understanding of the factual scenario (at [17]). To that end, the Google Maps also showed that the distance of the two landmark clearings that had one favouring Liew’s case, and another, favouring Soh’s case. Such a finding arguably militates any form of interference that impinged on Soh’s claim that there was no slowing down. Moreover, a review of the transcripts elucidated that Liew’s counsel was not acting in the capacity of an active witness but merely limited to relaying information viewed from the Google Maps (at [18]).

Apparent Bias

The law pertaining to apparent bias was definitively restated in BOI at [103]. The test is one of whether the circumstances would give rise to a reasonable suspicion or apprehension of bias in the fair-minded and informed observer. This belief is not one that is fanciful and must be reasoned and articulated within the context of the evidence that is presented before the Court. In addition, the observer’s perspective is one that is “informed of all relevant facts that are generally capable of being known by members of the public, including the traditions of integrity and impartiality that the administrators of justice have to uphold. The observer must also be fair minded, and cannot be unduly complacent, sensitive or suspicious”.

Soh’s counsel contended that bias was apparent based on a series of comments made by the DJ in relation to the applications which led to RAS 24 and 25. Without going into the details of RAS 24, the specific phrases that Soh’s counsel alleged revealed that the DJ had a predisposition towards him were “reprehensible conduct” and “mercenary advantage” in her oral grounds for that decision (at [35]).

However, Thean J’s analysis of the context in which it was said revealed that the DJ was simply quoting the case of John v MGN Ltd [1997] QB 586 in relation to when a person may be liable for exemplary damages. To that extent, the comments were not directed at Soh personally which militates any suggestion that there was any form of prejudgment present (at [36]). It is apparent from Thean J’s judgement that quotations of cases made in a Judge’s decision cannot be used to establish apparent bias or some sort of prejudicial attitude towards that party.

In addition, it was clarified by Thean J that various interlocutory matters and ad-hoc requests in relation to case management timelines that were not in favour of a particular party cannot be perceived as bias insofar as they were properly adjudicated on the merits (at [42]). Thus, it was ultimately held that apparent bias is one that must be made in the context of the totality of proceedings and having considered the list of complaints, Thean J found that no objective bystander would have perceived any apparent bias (at [43]).

Key Takeaways

In sum, the rule with regards to judicial interference is clear. It is only when a judge’s interference is so excessive that it leads to a possibility of the denial of justice, that the recusal of the said judge would be warranted. In the present case, the interjections by the DJ were merely administrative and were only made after a considerable amount of time was accorded for Soh’s counsel to make his point. Furthermore, the facts of Kathleen Chua suggests that one of the factors taken into consideration is the length of time in which a counsel was able to effectively cross-examine a particular witness before interferences were being made. This is quite apposite to the present case as aforementioned in preceding paragraphs.

 Additionally, the threshold for establishing apparent bias is undoubtedly high and would require strong, cogent evidence to suggest that there was any present. The establishment of apparent bias is highly contextual and mere allegations of wrongful application of the law, quotations of cases or decisions in interlocutory proceedings that were unfavourable towards a party would not suffice.

Conclusion

As seen from the present case, a recusal application is a highly contextual inquiry which necessitates voluminous amounts of trial transcripts to be furnished. It inevitably incurs a considerable amount of costs, time and resources. Further, in the context of this case, it has prolonged what was initially conceived to be a “simple defamation case that was essentially factual” (at [45]).

Insofar as counsels are obliged to pursue their interest of their clients and to prepare their case to the fullest extent (See generally Rule 5(1) of the Legal Profession (Professional Conduct) Rules 2015 (“LP(PC)R”)), counsels also have a paramount duty to assist the Court in the administration of justice (at [45]; Sundaresh Menon CJ in Re Parti Liyani [2020] 5 SLR 1080 at [35]; Rule 9(1)(a) LP(PC)R). This is necessary in order for “justice in its fullest orb [to] shine forth” (Andrew Phang JC (as his Honour then was) in United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd [2005] 2 SLR(R) 425 at [9]).

Click here for the link to our initial article about the first instance Recusal Application.