Rehearing Ordered Over HK Judge's Counsel Criticisms
Correction, 9/18/13: An earlier version of this article incorrectly stated that Dr. Gerard McCoy SBS QC SC appeared for the defense in the case heard by Justice Anthony To. In fact, Dr. McCoy only appeared on the appeal and did not appear before Mr. Justice To. We accept that the earlier version of this Article were capable of being read to mean that Dr. McCoy mislead or were complicit in misleading Mr. Justice To. We retract the statement in its entirety and humbly apologize to him for any damage caused to his reputation.
A Hong Kong judge crossed a line in his criticisms of counsel and should have recused himself from the case, an appellate court has ruled.
The statements by Hong Kong High Court Justice Anthony To came in the course of a lawsuit by Switzerland’s Falcon Private Bank to recover $10 million mistakenly transferred into a client account and then allegedly wired to the defendants’ accounts in Hong Kong and Singapore.
Barrister Colin Wright was instructed by Stephenson Harwood for the defense, and appeared before Justice To seeking to dismiss the bank’s suit as well as lift an injunction barring the defendants from transferring funds out of their Hong Kong account.
In a February 2012 order, Justice To sharply criticized Wright in particular for “misleading the court” about his clients’ failures to comply with disclosure orders. The defense subsequently moved for the judge’s recusal, which he denied. In his July order on the matter, Justice To reiterated his criticisms of Wright, stating that the lawyer had “deliberately” misled the court on the disclosure issues.
Such statements raised the possibility that Justice To was biased against defense counsel, a three-judge panel of the Court of Appeal of the Hong Kong High Court said in a decision issued Tuesday.
“What I find most disconcerting in this instance is not a rejection of counsel’s arguments in strong and at times rather offensive language and the attack on counsel’s competence, but the attack in no uncertain terms on counsel’s professional integrity, and to a lesser extent, the solicitor’s integrity,” Justice Susan Kwan wrote for the panel, noting that misleading the court constitutes grave misconduct for a lawyer.
“A fair-minded and informed observer would reasonably conclude there was a real possibility that the judge’s mind would not be open to persuasion by counsel who he was convinced had attempted deliberately to mislead him,” she said.
The panel ordered the matter remitted to another judge to rule on the defense motions.