20201216 Grounds of Decision for Soh's Recusal Applicatoin (SUM3822).PDF -

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IN THE STATE COURTS OF THE REPUBLIC OF SINGAPORE [2020] SGDC 280 Between Liew Wei Yen Ashley … Plaintiff And Soh Rui Yong … Defendant JUDGMENT [Courts and Jurisdiction] — [Judges] — [Recusal] TABLE OF CONTENTS INTRODUCTION............................................................................................ 1 CASE HISTORY ............................................................................................. 3 THE TRIAL & KEY APPLICATIONS .................................................................. 3 SUM 2786/2020 ......................................................................................... 4 SUM 2828/2020 ......................................................................................... 5 SUM 2895/2020 ......................................................................................... 5 SUM 3132/2020 ......................................................................................... 6 SUM 3175/2020 ......................................................................................... 6 Current Status ............................................................................................ 7 FACTUAL BACKDROP SURROUNDING THE ALLEGATIONS ......... 7 THE LAW....................................................................................................... 20 MY DECISION .............................................................................................. 25 ALLEGATIONS THAT I HAVE DESCENDED INTO THE ARENA AND THERE IS EXCESSIVE JUDICIAL INTERFERENCE, APPARENT BIAS AND PREJUDGMENT............................................................................................... 25 First category of allegations: That I have descended into the arena and shown apparent bias when I explained that 700m was only an estimate ....................................................................................... 25 Second category of allegations that I have descended into the arena and invited Liew to change his estimate so as to wriggle out of his allegedly “untenable position”. ..................................................... 37 Third category of interventions – allegations of pre-judgment ............... 48 ALLEGATIONS THAT I HAVE UNJUSTIFIABLY REFUSED THE ASSISTANCE OF EXPERT EVIDENCE .................................................................................... 51 i ALLEGATIONS THAT I HAVE DOWNPLAYED AND/OR DISREGARDED THAT SOH WAS CAUGHT BY SURPRISE ........................................................... 54 ALLEGATIONS THAT I HAVE BLAMED HIS COUNSEL FOR LIEW’S FRESH REVELATION OF FACT .................................................................................... 55 ALLEGATIONS THAT I HAVE APPLIED DOUBLE STANDARDS ........................... 56 ALLEGATIONS THAT I HAVE IMPEDED SOH’S COUNSEL FROM DRAWING AN ADVERSE INFERENCE AGAINST LIEW ....................................................... 57 ALLEGATIONS THAT I HAVE ALLOWED 53 FRESH DOCUMENTARY EXHIBITS TO BE ADMITTED IN THE MIDST OF TRIAL ....................................... 59 ALLEGATIONS THAT I HAVE MISAPPLIED THE LAW DURING THE HEARING OF SUM 3132/2020 ....................................................................... 60 ALLEGATIONS IN RELATION TO THE HEARING ON 12 NOVEMBER 2020 ......... 60 OTHER ALLEGATIONS.................................................................................... 61 CONCLUSION .............................................................................................. 62 ii This judgment is subject to final editorial corrections approved by the court and/or redaction pursuant to the publisher’s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports. Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 District Court Suit No 1784 of 2019 District Court Summons 3822 of 2020 District Judge Lee Li Choon 3 December 2020 [14 December 2020] Judgment reserved. District Judge Lee Li Choon: Introduction 1 District Court Summons 3822 of 2020 is an application by the Defendant in District Court Suit No. 1784 of 2019, Soh Rui Yong that I be recused from hearing any application or matter arising out of or in connection with the said suit on grounds of apparent bias, prejudgment and excessive judicial interference. The application was filed on 9 November 2020 and I heard the application on 3 December 2020. 2 District Court Suit No. 1784 of 2019 is a defamation suit filed on 17 June 2019 by the Plaintiff, Ashley Liew (“Liew”) against the Defendant, Soh Rui Yong (“Soh”). The defamation action arose out of a (i) Blog Post made by Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 Soh on 5 June 2018 commenting on an incident at the 2015 28th SEA Games marathon event that led to Liew being awarded the International Committee for Fair Play’s (IFPC) Pierre de Coubertin World Fair Play Award (“Fair Play Award”) and (ii) a Facebook Comment posted by Soh on 13 October 2018 in the IFPC Facebook Post. 3 Liew and Soh are marathon runners who represented Singapore during the event. The undisputed fact is that at the said marathon event, an incident occurred in which, except for Liew, all the marathon runners, including Soh missed a specific U-Turn. Liew was subsequently awarded the Fair Play Award in 2016 for his act of sportsmanship of slowing down to allow the other marathon runners to catch up with him at that marathon race. The key words in both the Blog Post and the Facebook Comment that are the subject of this defamation suit are: “…Nobody slowed down to wait - the race was on” and “..he certainly did not stop or slow down to wait for us whatsoever” respectively. The defamatory meanings complained of by Liew include, among other things, the innuendo that he had lied and conjured up his account of sportsmanship that resulted in the Fair Play Award. 4 In his Defence, Soh denies that there was any defamatory meaning in his Blog Post and Facebook Comment. He also relies on the defence of justification to the extent that the statements in the Blog Post and Facebook Comment bear meanings, they are true in substance and in fact. He further relies on the defence of fair comment insofar as the words constitute a fair comment on a matter of public interest, namely the events of the 2015 SEA Games Marathon and/or the Award given by the International Fair Play Committee. 2 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 Case History 5 In the proceedings before me, Liew is represented by Mr Mark Teng of That.Legal LLC (“Liew’s counsel”) and Soh is represented by Mr Clarence Lun of Foxwood LLC (“Soh’s counsel”). Liew has four witnesses of fact (including Liew himself) and Soh has four witnesses of fact (including Soh himself) as follows: (a) For Liew (i) Ashley Liew Wei Yen (Liew) (ii) Kuniaki Takazaki – who gave his evidence from Japan via videoconference (iii) Quek Chiu Lian (iv) Lin Jiehan Kelvin (b) For Soh (i) Soh Rui Yong (Soh) (ii) Steven Quek Chin Hwee (iii) Madankumar Balakrishnan (iv) Soh Seow Hong – Soh’s father The Trial & Key Applications 6 The trial was first heard over 8 days in September 2020 (1-3 Sept; 8-11 Sept; 24 Sept) and is part-heard at this point in time. Just before and in the midst of the trial, various applications were filed by both parties and these spawned four appeals to the High Court by Soh, two of which have been dismissed by 3 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 Justice Valerie Thean with two pending hearing. As my decisions in these applications form the substance of allegations of biasness against me, I set out a brief summary of the key applications as follows: SUM 2786/2020 7 This is an application filed on 26 August 2020 by Liew for leave to file a supplementary affidavit of evidence in chief to introduce additional documents, the bulk of which are documents that originated from Soh such as Soh’s further posts on social media and online activities. The rest are publicly available documents from Today Online and The Online Citizen and two are letters of demand and cease and desist letters sent by Liew to Soh and Soh’s counsel. These documents were disclosed to Soh by way of the Lists of Documents filed on 29 October 2019 and 13 August 2020. The bulk of the documents were disclosed in the first List of Documents filed on 29 October 2019. Soh did not challenge the authenticity of the documents disclosed in the first List of Document filed on 29 October 2019 and these were included in the Agreed Bundle of Documents. 8 I heard the application in the morning of the second day of trial (2 September 2020). As these new documents were intended to be adduced to show evidence of Soh’s conduct which is relevant to the question of damages, I granted leave for Liew to file a supplementary affidavit of evidence in chief to introduce these additional documents. Soh appealed against my decision to the High Court. His appeal was dismissed by Justice Valerie Thean on 21 October 2020. In dismissing the appeal, Justice Valerie Thean noted, “These were Soh’s own posts and Soh’s counsel has a further day of cross-examination of Liew allocated.” 4 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 SUM 2828/2020 9 This is an application filed on 3 September 2020 by Soh for leave to file his supplementary affidavit of evidence in chief to admit his GPS records at the marathon race. I heard the application on 8 September 2020 morning and dismissed the application on the basis that Soh has not given any explanation why the GPS records could not have been disclosed during discovery and that he has failed to show how his GPS records which shows his pace in the race is relevant to the material question of whether Liew slowed down or not, among other reasons. Soh appealed against my decision to the High Court. His appeal was dismissed by Justice Valerie Thean on 21 October 2020. In dismissing his appeal, Justice Valerie Thean reasoned that first, his GPS records ought to have been disclosed at discovery and disclosure obligations ought to have been taken seriously especially as the GPS evidence is from an electronic device and second, the evidence is not crucial to the case as Liew’s estimate which Soh seeks to debunk was in any event an estimate which I had also pointed out. SUM 2895/2020 10 This is an application filed on 7 September 2020 by Soh for leave to file new evidence by an expert witness, Mr Cheong Fook Seng who will give his opinion evidence on whether Liew had slowed down based on Soh’s GPS records among other things. I heard the application on 16 October 2020 and dismissed the application on the basis that Soh has not shown that the expert evidence could not have been reasonably obtained with reasonable diligence for use at the trial before the start of the trial. I also found the evidence to be essentially rebuttal evidence and that Soh has not shown that a matter or development had quite unexpectedly arisen during trial which he could not reasonably have anticipated, or which had taken him by surprise. Soh has, on 5 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 22 October, filed his appeal against my decision in RAS 25/2020 and the matter is presently fixed for hearing in the High Court on 17 March 2021. SUM 3132/2020 11 This is an application filed on 23 September 2020 by Liew for leave to amend his Statement of Claim to add particulars relating to Soh’s conduct to substantiate his claim for aggravated damages and exemplary damages. All the additional particulars are of documents that have already been admitted into evidence through the Agreed Bundle of Documents and Liew’s supplementary affidavit of evidence in chief that was allowed via SUM 2786/2020. I heard the application on 16 October 2020. It was represented to me by Liew’s counsel that he would not require any further cross-examination of Soh, and that there would be no further delay occasioned by the allowing of the amendment. I granted leave to Liew to amend his Statement of Claim and gave directions to Soh for the filing of consequential amendments to his Defence. Soh has, on 19 October 2020 filed his appeal against my decision in RAS 24/2020 and the matter is presently fixed for hearing in the High Court on 17 March 2021. SUM 3175/2020 12 This is an application by Soh to admit new evidence of two factual witnesses. I heard the application on 16 October and dismissed the application on the basis that the evidence is essentially rebuttal evidence and Soh has not shown that the rebuttal evidence is a necessary response to a matter or development that has quite unexpectedly arisen during trial and which he could not reasonably have anticipated or which has taken him by surprise. Presently, Soh has not filed an appeal against this decision and the appeal period had already expired on 30 October 2020. 6 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 Current Status 13 By the end of 10 September 2020, Liew has closed his case. The remaining two days (11 September 2020 and 24 September 2020) were spent on the Defence. By 24 September 2020, Liew’s counsel has completed the cross-examination of Soh and one of his three remaining factual witnesses. The part-heard trial is left with Soh’s two factual witness (Soh Seow Hong and Madankumar Balakrishnan) for cross-examination by Liew’s counsel and a re- examination as necessary by Soh’s counsel and the re-calling of Liew for further cross-examination by Soh’s counsel on the documents originating from Soh that I have allowed via Liew’s supplementary affidavit of evidence in chief and the amendment to the Statement of Claim. Factual Backdrop Surrounding the Allegations 14 Soh’s allegations centre around what I had said and the decisions I have made in the context of what I would term as “the 700m issue”. As the context is important, I turn now to set out how the 700m issue came about and what transpired at the trial proceedings regarding this 700m issue. 15 I start with what Liew has said in his affidavit of evidence in chief on the relevant aspects. At paragraphs 32 and 33 of his affidavit of evidence in chief, Liew said: “32. The chase pack took about 1 minute to catch up with me after Mr Takizaki overtook me. To be clear, I did not wait for the other Participants in the chase pack to overtake me before resuming my usual marathon pace. Instead, I increased my pace once some of them drew level and were running alongside me. 33. It was approximately two and half (2.5) minutes from the time I left the U-Turn Point, deliberately slowed down to wait for the other Participants, and to the time I increased my speed to my usual marathon pace.” 7 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 16 As can be seen, there was no mention of the distance from the U-turn point where the chase pack caught up with him or where Liew resumed his usual marathon pace. The distance from the U-turn point where this happened first came up in Liew’s cross-examination by Soh’s counsel in the afternoon of first day of the trial proceedings. Lun Where was the somewhat order position, where was the somewhat order that you mentioned in the race, where was this somewhat order you say? Liew Uh, the somewhat order in terms of all the runners being in that somewhat order, --- Lun Yes. Liew is that correct? Lun Yes. Liew Uh, Your Honour, I don’t recall the exact positions. Again, this was 5 years ago at the heat of the moment, dark and rainy morning. Um, but, uh, it would have, uh, probably been around 700 metres from the U-turn point. Again, I can’t be too--- Lun And---and--- Liew sure.1 17 It was in response to cross-examination questions that Liew said “the race resumed the somewhat order probably around 700 metres from the U-turn point”. 18 After this response from Liew, Soh’s counsel went on to pursue this 700m issue by asking Liew questions in various permutations uninterrupted for the next hour or so, exploring questions regarding the order of runners before and after the 700 metres point, Liew’s pace before and after the 700 metres point and so forth. In response to the questions, Liew responded with these words - 1 Transcript, 1 September 2020, 73 / 23 – 74 / 5 8 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 “Around the 700-metre point”2, “I can’t be exactly sure of the exact point of the- --of when the, uh, the act of fair play would formally end, but I do recall a clearing on the right side of our running path3, “I cannot, uh, give you an exact, uh, time frame, um---uh, of uh---of that exact duration. But in my mind, I could- --I think I believe I mentioned earlier, I---I---in my mind, I would estimate about 2 minutes 30 seconds, 2 minutes 45 seconds, maybe there---maybe---maybe--- maybe a bit more”, “Again, I cannot give exact timings, uh---uh, specially not wearing a GPS watch back then. I will estimate it being, uh, 2½ minutes to hour- --uh, 2, uh---2 and a---2 minutes 30 seconds, 2 minutes 45 seconds, around there, maybe more”4. 19 Towards the end of the first day of the trial proceedings, Soh’s counsel began to ask Liew questions concerning the pace of the other runners, including Soh’s. Arising from this, Liew’s counsel raised his objections for the first time on Day 1 of the trial proceedings, stating that the pace of Soh and other runners would not be something Liew could answer and that without any reference to what Soh has said in his affidavit of evidence in chief, Soh’s counsel’s assertions regarding the pace of other runners such as Soh himself are essentially assertions from the bar. Liew’s counsel also objected to this line of questioning on the basis that if Soh’s counsel is seeking to pursue a scientific point, it should come from an expert and if not, then the place for such points to be made is in the closing submissions. 20 In the process of dealing with these objections from Liew’s counsel, I wanted to better understand and follow the points that Soh’s counsel was 2 Transcript, 1 September 2020, 83 / 25 3 Transcript, 1 September 2020, 93 / 7 – 9 4 Transcript, 1 September 2020, 93 / 13 – 16 9 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 seeking to make. Soh’s counsel then explained to me that he was “taking (Liew’s) story and doing a scientific –a mathematical approach to understand what is the pace that (Liew) run”. I then pointed out to Soh’s counsel that “there is no point in going the scientific way” as the 700 metres “was only an estimate”. However, if he was putting forth a scientific point as in, a scientific point regarding the pace of a marathon runner, it would have to be properly established through an expert and not by way of a bare assertion from the bar. I said that because Soh’s counsel had not pointed to any relevant evidence that has been tendered in court that would show that a simple mathematical calculation of 700 metres over 2.5 minutes shows there was no slowing down. 21 Nevertheless, I did suggest that Soh could include this point in his closing submissions and that he is also free to test the 700m issue with the other witnesses. I then directed that Soh’s counsel should move on from this 700m point, to which Soh’s counsel responded with, “Yes, I have already obtained the concession. We will move on, Your Honour.” 22 I reproduce relevant extracts of the transcript below: Teng: So, Your Honour, this is what I’m talking about. The--- the Defendant is saying that the---making an assertion from the bar that the Defendant was running at a certain pace. I think we should follow what is in the AEIC--- Lun: Your Honour, s--- Teng: and---and take it that way. Lun: The Defendant---the Plaintiff has co---clearly contradicted his own evidence by saying, “At the 700-metre mark, 2½ minutes, they caught up with me.” That’s how he say the---that---that’s what his story. I’m taking in his story and doing a scientific---a mathematical approach to understand what is the pace that he run. And I think, Your Honour, I think we would be able to show you that on the Defend---on the Plaintiff’s case, he’s running a record Sea Games--- Court: It may not be--- 10 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 Lun: medals many time. Court: accurate to say 700-metres, because they went past the U-turn. They went past the U-turn, the Plaintiff’s reference point is from the U-turn’s 700 metres. I mean, is he---it’s his estimate. Lun: Correct, Your Honour, but---5 ------- Court: No. I--- Lun: where he--- Court: I still don’t get---I---I don’t get your point. Lun: Your Honour, according to witness---I apologise I ha--- if I had been unclear. I will try to---I will try to explain. It took him 2 and---700 metres from the U-turn point which is 2½ minutes for the order to somewhat resume. Court: Yes. Lun: That means to say---and these guys had run 50 metres past the U-turn point and had to make a U-turn for 50 metres. Let’s take it just for---for---for---for simple calculation, 100 metres and they had to run another 700 metres according to the Plaintiff. And at the 700 metres mark from the U-turn, which is his position and which he has what sa---sworn in on affidivat---in e---evidence over the course of the day, it took them 2½ minutes to catch up with him. That means to say, Your Honour, these pack was running close 800 metres at--- and caught up with him in 2½ minutes. Teng: Your Honour, I think the place for this is submissions, because it depends on the Defendant’s evidence as well. Court: As well, yup. Teng: Because you got the Defendant chasing the Plaintiff, so the answer to this equation I believe would be one left for su--- better left for submissions. Court: Yes. Teng: And it’s not within the Plaintiff’s knowledge--- 5 Transcript, 1 September 2020, 108 / 26 – 109 / 14 11 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 Court: Yup. Teng: how fast the--- Court: Yah. Teng: Defendant was running. Lun: Well, --- Court: Alright. Lun: Your Honour, I’m taking the Plaintiff’s words. He says it’s 700 metres which is 2½ minutes, “These guys caught up with me and that was my act of fair play.” I’m trying to establish in this 700-metres how he slowed down and I’m trying to take this Honourable Court through and---on a kilometre by kilometre basis on that projection. It works out to 3 minutes 34 seconds which is far faster than his proclaimed 4 minutes per kilometre pace that he took to complete the entire marathon in his words. So, Your Honour--- Teng: If I may, Your Honour, I think this kind of calculations are better left for expert evidence--- Court: And--- Teng: not from the bar. Court: Yup. And also, it--- Teng: And I know there’s no expert--- Court: Yah. Teng: called to the---to--- Court: If the sum--- Teng: to support the Defence’s case. Court: still work out, then either his estimate of 2.5 minutes is not correct, it could---it could mean that, or it could also mean that, you know, what---what---what the Defendant says. But at the end of the day, we cannot take what he’s saying now to be a scientific evidence, alright? Lun: Your Honour, --- Court: So, there is no point in going the scientific way, because it’s only an estimate, he wasn’t wearing a GPS watch, there was no way of confirming whether it was at the 700-metre mark or it was to---it took 2.5 minutes for the rest of the pack to catch up with him. 12 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 Lun: Your---Your Honour, it would have been troubling to this Honourable Court that season professional--- Court: Well, you can make--- Lun: In marathon--- Court: your submissions, alright, in---you can include this point in your closing submissions, but I---I don’t suggest that we pursue it, you know. It’s---it’s---if you have a---a point to push that is scientific, it should have been through an expert witness rather than from the--- Lun: Well, --- Court: Plaintiff. Lun: Your Honour, no expert witness--- Court: We do not--- Lun: are re--- Court: know for a fact that it was 2.5 minutes and 700 metres. It was only an estimate in response to your questions, alright?6 ……. Court: Let’s continue. Let’s--- Lun: I take Your Honour’s point. Court: move on from this point. Lun: But the---Your Honour, if I could---if you co--- Court: You can include in your submissions, alright. But I---I- --I don’t see any point in pursuing this line of questioning. Lun: Well, Your Honour, I---I---my---my instruct--- submissions that this would have been important to this Court, because--- Court: Yah, you include it--- Lun: they--- Court: in your closing submissions, --- Lun: Well, Your Honour, --- 6 Transcript, 1 September 2020, 110 / 4 – 112 / 18 13 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 Court: okay? Lun: I’m---I’m only seeking to develop the point for that, because--- Court: You can--- Lun: because, Your Honour--- Court: you can pursue that with the other witnesses, as well. You’ve already obtained his response to your questions, he said 2.5 minutes it’s--- Lun: 7--- Court: about 700 metres from the U-turn point. Lun: Yes, I have already obtained the concession. We will move on, Your Honour.7 23 In light of this discussion in open court in the context of objections from Liew’s counsel and my direction to Soh’s counsel to “move on from this point” and to include relevant points concerning the 700m issue in his closing submissions, one would have thought the matter of the 700m issue had been put to rest then. 24 However, when the trial resumed the next morning, Soh’s counsel continued with his cross-examination of Liew on the 700m issue. He explored various permutations of questions on this 700m issue and other related matters in his cross-examination of Liew. Although the questions were repetitive, Liew’s counsel did not raise any objections on questions related to the 700m issue initially and Soh’s counsel was accorded great latitude in exploring the 700m issue in his cross-examination. 25 As he had done so on the first day of trial, Soh’s counsel made submissions on evidence to me at various points. Even though cross- 7 Transcript, 1 September 2020, 113 / 28 – 114 / 19 14 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 examination is not the proper place for submissions on evidence to be made, I gave him ample leeway without cutting him short. 26 After more than an hour of continued cross-examination on the 700m issue, Soh’s counsel represented to me that he intends to submit in closing submissions that “running 700 metres in 2.5 minutes cannot be a slowdown.” As the contention that the fact that Liew ran 700 metres in 2.5 minutes shows there was no “slowdown” (which is a material relevant fact) is opinion evidence that only an expert can render, I then repeated my explanation to him that if it is a matter of opinion evidence, it has to be properly adduced and established. It cannot be established by an assertion from the bar. I made those statements as points of guidance because I had realised that Soh’s counsel might have misunderstood me when I said that he could include relevant points in his closing submissions the day before. 27 I reproduce relevant parts of the transcript below: Lun: We were taking in submissions, Your Honour, how running 700 metres in 2½ minute cannot be a slowdown. I will leave to submissions. But Your Honour we are taking on the credibility. Court: Well, it would be a matter of evidence and not submissions, alright. Lun: Certainly. Court: And evidence from the bar is--- Lun: Of course. Court: no, no, right? You are also no expert to tell me whether running 700 metres in 2½ minutes is the normal speed of a marathon runner or not. And I would also imagine that in a marathon race, the runner would be running at different speeds at different parts of the race. So, --- Lun: Of course, Your Honour. 15 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 Court: no doubt in the absence of expert evidence, I---I---I don’t see how that piece of evidence would go to establish anything. Teng: Your Honour, is reading my mind. And the only thing I’ll say is this line of questioning is going round and round in circles on this 700 metres 2½ minutes issues which is---is---is not something that the Plaintiff can---can prove also because he is---he is not expert witness called to this--- Court: Yah. Teng: in this case. So, it’s an expert witness issue to which the Defendant did not call an expert witness, that’s by choice.8 28 Based on these discussions that had transpired in court, Soh would have formed the impression that he would have to consider filing an application to seek leave to introduce expert opinion evidence if he still wished to establish the contention that, “running 700 metres in 2.5 minutes cannot be a slowdown”. As a matter of procedure, Soh would not be prevented from filing such an application. However, the adversarial process dictates that if the application was contested, such an application would have to be heard and decided based on applicable legal principles as regards rules of evidence and civil procedure. In this case, legal principles as regards the introduction of new or rebuttal evidence at this stage of the trial proceedings would be applicable. 29 Before I stood down for a lunch break on Day 2 of the trial proceedings, I again explained to Soh’s counsel why based on what had been heard thus far, this was a contention that had to be properly established by evidence. Court: But with regard to the evidence--- Lun: Your Honour, I’ve taken on the point. Court: on the 700 metres and 2.5 minutes which you had gone on ad nauseam, I’m telling you that this is a matter of evidence. 8 Transcript, 2 September 2020, 47 / 20 – 48 / 12 16 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 If you intend for this to establish any fact, it will have to be properly adduced through an expert. Okay? Lun: Yes, Your Honour. I take Your Honour’s--- Court: So, the fact of the 700 metres in 2½ minutes doesn’t tell me any other relevant fact. Lun: Certainly, Your Honour.9 30 The above sets out the background for my interventions which Soh has complained of in alleging that I had shown apparent biasness against him and had excessively interfered in the proceedings. 31 In spite of my directions and explanation before the lunch break, Soh’s counsel again harped on Liew’s estimate of 700m when the hearing resumed after the lunch break. It was clear that Liew had insisted that 700 metres was just an estimate he could not be sure of. Soh’s counsel’s persistent pursuit on this point made it evident to me that this was an important issue to Soh. As Liew had mentioned earlier in the day that there was a bridge at the point where Mr Takazaki caught up with him10 and he has also said he recalled there was a clearing to his right when the chase pack caught up with him on the first day of trial11, after ascertaining from him that he would be able to point out on Google Maps where the bridge was12, I suggested to Soh’s counsel to make use of Google Maps using landmarks that Liew could point out for his further cross- examination on this point13. I did this in a bid to obtain greater clarity on the 9 Transcript, 2 September 2020, 49 / 31 – 50 / 8 10 Transcript, 2 September 2020, 3 / 27 – 4 / 5 11 Transcript, 1 September 2020, 92 / 30 – 93 / 9 12 Transcript, 2 September 2020, 94 / 3 – 95 / 12 13 Transcript, 2 September 2020, 96 / 6 - 14 17 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 evidence as regards the distance from the U-turn point where the alleged act of fair play occurred or stopped since this is an important issue to Soh. 32 As Soh’s counsel claimed he was not “tech-savvy” and had difficulty with the use of Google Maps14, Liew’s counsel assisted the Court with the provision of information as regards measurements from the Google Maps based on Liew’s response to Soh’s counsel’s questions as well as my questions. Liew was asked to identify on Google Maps the clearing where he said he resumed his usual marathon pace. In the process, arising from the information obtained from using Google Maps, Liew clarified his response regarding his earlier estimate of 700m15. This forms the background for the other category of interventions from me which Soh has complained of in alleging that I had shown excessive judicial interference and apparent bias against him. 33 Similar to the second day of trial, the third day of trial was also characterised by repeated objections from Liew’s counsel as Soh’s counsel persisted in his line of questioning on the 700m issue. There were also objections on other questions pertaining to other matters. The objections raised by Liew’s counsel to Soh’s counsel’s questions on the 700m issue were again the same objections as before - that the questions were repetitive, or were premised on evidence not yet tendered in court (such as Soh’s pace at the marathon race, the normal pace of marathon runners) or based on bare assertions from counsel himself16. The fact of the matter is that Soh’s counsel had persisted 14 Transcript, 2 September 2020, 96 / 24 – 27; 97 / 15 – 24; 98 / 17 – 28 15 Transcript 2 September 2020, 94 / 13 – 112 / 14 16 Transcript, 3 September 2020, 16 / 10 – 11; 21 / 31 – 22 / 8; 42 / 5 – 43 / 27; 43 / 28 – 48 / 7 18 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 in this course in spite of objections from Liew’s counsel and my directions and rulings thereon. 34 Against this background, Soh’s counsel then informed the court that Soh intended to file his application to admit new evidence relating to Soh’s GPS records at the marathon race17. Indeed, this application (SUM 2828/2020) was subsequently filed later that day. I fixed the application for hearing in the morning of the fourth day of the trial proceedings (8 September 2020) so as to ensure that Soh’s counsel would be able to pursue this line of questioning concerning the 700m issue based on evidence of Soh’s pace in the remaining days of the trial, should his application be successful. However, after hearing arguments and submissions from both parties, I dismissed the application. On appeal by Soh, my decision was affirmed by the High Court (see paragraph 9 above). 35 Indeed, arising from what transpired at the trial proceedings in relation to the cross-examination of Liew on the 700m issue, other than his application to introduce his GPS records during the marathon race (SUM 2828/2020 – see paragraphs 9 and 34 above), Soh has also filed 2 other interlocutory applications to introduce new or rebuttal evidence: (i) an application to introduce 2 new factual witnesses who were spectators at the race (SUM 3175/2020 – see paragraph 12 above); (ii) an application to introduce an expert witness who would render his opinion based on Soh’s GPS records among other things (SUM 2895/2020 – see paragraph 10 above). As stated under “Case History”, I have heard all three applications and rendered my decisions in them. The decision on 17 Transcript, 3 September 2020, 43 / 28 – 48 / 7 19 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 GPS records has been affirmed on appeal; and the decision on the expert evidence is pending appeal hearing. 36 Having set out the factual backdrop, I will now set out the law on recusal before I turn to examine each allegation in greater detail. The Law 37 The Court of Appeal in BOI and BOJ [2018] SGCA 61 (“BOI and BOJ”) has established clearly for us the applicable principles and it is to this case that I now turn to for guidance. The applicable principles in relation to the doctrine of apparent bias in Singapore can be summarised as follows (see [103]): (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. (b) The test for apparent bias is an objective one that involves a hypothetical inquiry into the perspective of the observer and what the observer would think of a particular set of circumstances. (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. 20 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 (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 (i.e., 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. 38 As for the ground of recusal under “pre-judgment”, the rule against prejudgment prohibits the decision-maker from reaching a final, conclusive decision before being made aware of all relevant evidence and arguments which 21 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 the parties wish to put before him or her. The primary objection against prejudgment is the surrender by a decision-making body of its judgment such that it approaches the matter with a closed mind (see BOI and BOJ at [107]). Pre-judgment is a form of apparent bias. To establish prejudgment amounting to apparent bias, therefore, 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 (see BOI and BOJ at [109]). 39 As for the applicable legal test under the ground of “excessive judicial interference”, the Court of Appeal in BOI and BOJ has also laid down clear guiding principles at [111]. The relevant extract is reproduced below. 111 Quite apart from apparent bias, there is also the separate ground of whether the Judge excessively interfered with the proceedings. This Court dealt with this ground at length in Mohammed Ali bin Johari v Public Prosecutor [2008] 4 SLR(R) 1058 (“Mohammed Ali bin Johari”) at [117] et seq, and it would suffice for present purposes to set out the summary of principles at [175] of the judgment, which represents the current state of the law (see Lim Choo Suan Elizabeth and others v Goh Kok Hwa Richard and others [2009] 4 SLR(R) 193 at [173]; Nim Minimaart (a firm) v Management Corporation Strata Title Plan No 1079 [2010] 2 SLR 1 (“Nim Minimaart”) at [10]; and Sinnappan a/l Nadarajah v Public Prosecutor [2018] SGCA 21 at [3]): (a) The system the courts are governed by under the common law is an adversarial (as opposed to an inquisitorial) one and, accordingly, the examination and cross-examination of witnesses are primarily the responsibility of counsel. (b) It follows that the judge must be careful not to descend (and/or be perceived as having descended) into the arena, 22 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 thereby clouding his or her vision and compromising his or her impartiality as well as impeding the fair conduct of the trial by counsel and unsettling the witness concerned. (c) However, the judge is not obliged to remain silent, and can ask witnesses or counsel questions if (inter alia): (i) it is necessary to clarify a point or issue that has been overlooked or has been left obscure, or to raise an important issue that has been overlooked by counsel; this is particularly important in criminal cases where the point or issue relates to the right of the accused to fully present his or her defence in relation to the charges concerned; (ii) it enables him or her to follow the points made by counsel; (iii) it is necessary to exclude irrelevancies and/or discourage repetition and/or prevent undue evasion and/or obduracy by the witness concerned (or even by counsel); (iv) it serves to assist counsel and their clients to be cognisant of what is troubling the judge, provided it is clear that the judge is keeping an open mind and has not prejudged the outcome of the particular issue or issues (and, a fortiori, the result of the case itself). The judge, preferably, should not engage in sustained questioning until counsel has completed his questioning of the witness on the issues concerned. Further, any intervention by the judge during the cross-examination of a witness should generally be minimal. In particular, any intervention by the judge should not convey an impression that the judge is predisposed towards a particular outcome in the matter concerned (and cf some examples of interventions which are unacceptable which were referred to in [Regina v Valley (1986) 26 CCC (3d) 207] (“Valley”)). (d) What is crucial is not only the quantity but also the qualitative impact of the judge’s questions or interventions. The ultimate question for the court is whether or not there has been the possibility of a denial of justice to a particular party (and, correspondingly, the possibility that the other party has been unfairly favoured). In this regard, we gratefully adopt the 23 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 following observations by Martin JA in Valley (reproduced above at [138]): Interventions by the judge creating the appearance of an unfair trial may be of more than one type and the appearance of a fair trial may be destroyed by a combination of different types of intervention. The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial ….. (e) Mere discourtesy by the judge is insufficient to constitute excessive judicial interference, although any kind of discourtesy by the judge is to be eschewed. (f) Each case is both fact-specific as well as context-specific, and no blanket (let alone inflexible) rule or set of rules can be laid down. (g) The court will only find that there has been excessive judicial interference if the situation is an egregious one. Such cases will necessarily be rare. It bears reiterating what we stated earlier in this judgment (at [125] above): [T]he argument from judicial interference cannot – and must not – become an avenue (still less, a standard avenue) for unsuccessful litigants to attempt to impugn the decision of the judge concerned. This would be a flagrant abuse of process and will not be tolerated by this court. Parties and their counsel should only invoke such an argument where it is clearly warranted on the facts … [emphasis in original] 40 The Court of Appeal has further expounded on the difference between apparent bias and excessive judicial interference ([112]) as follows: … The “excessive judicial interference” ground guards against the risk of a fair trial being compromised because of the failure of a decision-maker to observe his proper role and his duty not to descend into the arena (Re Shankar Alan at [110]), and is borne out of the fact that the system of justice in Singapore is founded on an adversarial model rather than an inquisitorial model (Re Shankar Alan at [107]). 24 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 My Decision Allegations That I have descended into the arena and there is excessive judicial interference, apparent bias and prejudgment 41 In essence, Soh’s allegations that I have descended into the arena and shown apparent bias and prejudgment can broadly be classified into three categories. The first category relates to my interventions in relation to the 700m issue. For this category of interventions, Soh alleges that I have descended into the arena when I explained that Liew’s estimate of 700m was only an estimate. The second category relates to my interventions in clarifying evidence from Liew, in particular, in clarifying Liew’s evidence through the use of Google Maps. For this category of interventions, Soh alleges that I have descended into the arena and invited Liew to change his estimate so as to wriggle out of his allegedly “untenable position”. There is a third category pertaining to an unrecorded Chambers discussion that I had with both Liew’s and Soh’s counsel at the end of the sixth day of trial. For this third category, Soh’s allegation is that I have formed a pre-judgment against him. First category of allegations: That I have descended into the arena and shown apparent bias when I explained that 700m was only an estimate 42 Regarding the first category of allegations, these are all statements made by me following objections to Soh’s counsel’s line of questioning by Liew’s counsel. Liew’s counsel’s first objections came when Soh’s counsel attempted to ask Liew questions regarding the 700m issue in relation to the pace of other runners. His objection was that Soh’s counsel’s questions were based on assertions from the bar about Soh’s pace. He suggested to Soh’s counsel that he could refer to Soh’s affidavit of evidence in chief if he wanted to continue to pursue this line of questioning that is based on evidence of Soh’s pace. 25 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 Q how far were the runners behind you? A How far were the runners behind me? Q Correct. After the U-turn mark. A Um, I would estimate there was at least a 50-metre gap between us and it was growing by the second that I was running in the correct direction, Your Honour. Q If it was a 50-metres gap at a pace everyone running, how long does it take to catch up with you? A I wouldn’t know, Your Honour, ex---the exact amount of time it would take. Q 20 seconds? 10 to 20 seconds? A Not 10 seconds---10 seconds would be too fast. Q 20 seconds? A I’m---I don’t know, uh, but the exact timing, uh, would take to close that kind of gap. Q So, at the 700-metre mark for the gap---for the s--- for the---for the race to resume, how long has it been---or rather what was the time lap between the U-turn to the 700-metres gap? A I cannot, uh, give you an exact, uh, time frame, um- --uh, of uh---of that exact duration. But in my mind, I could- --I think I believe I mentioned earlier, I---I---in my mind, I would estimate about 2 minutes 30 seconds, 2 minutes 45 seconds, maybe there---maybe---maybe---maybe a bit more. Q What would that be in terms of kilometres per pace--- per k? A I don’t have the Math with me. Q Maybe---maybe we can do a quick calculation. Lun: Now, Your Honour, if---if we take the Defendant’s---our Plaintiff’s case, it was 2½ minutes for 700 metres per kilometre. Your Honour, I’m not a very good mathematician. I will let---I will let my clients do the calculation. Teng: Your Honour, if I may just say this at this point in time. I think the Plaintiff can say what he knows, but we’re talking about relative speed here. I think the---the 26 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 Defendant would know how fast he’s running and that evidence can come from the Defendant, but the Plaintiff will only know how fast the Plaintiff himself is running. Court: Yes. Teng: Thank you. Lun: 180 seconds is 3 minutes, Your Honour. So, that would be around 3 minutes 34 seconds. Q Now, Ashley, on your case at a 700-metres mark, you’re running at the pace of 3 minutes 34 seconds. Ashley, did you see that? A Sorry. Could you show the, uh---the---show that again? Q Now, Ashley, --- A I missed the first part. Q if you say that it took them 2½ minutes to catch up with you at a 700-metres mark--- A Around 2½ minutes, I don’t have exact, uh, duration. Lun: Your Honour, that is 214 seconds and that would be equate to 3 and---3 minutes and 34 seconds, Your Honour. Q And, Ashley, that was at the point where these runners had made a wrong U-turn and were---and were behind you and it took them thr---and at a 700-metres mark from the U-turn, they caught up with you in 3½ minutes---3 minutes 34 seconds per k pace, Ashley. A Your Honour, these are just estimations. Um, the--- the closer approximation to where I would say that the---the sportsmanship act and that, uh, would be in the clearing. And this clearing happens to be around the 700-metre mark. So--- Lun: Your Honour, if he says that it’s 700-metres mark and this guy had made a wrong turn, --- Q and these guys were running in the pace of 2½ minutes for 700 metres which is 3 minutes 34 seconds pace to catch up with you, how would you have slowed down, Ashley, how would you have slowed down? A There was a slowing down involved, Your Honour. And it was not, um---it was not du---during the entire duration of--- 27 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 Lun: Your Honour,--- A this clearing, uh, U-turn point to the clearing. Teng: So, Your Honour, this is what I’m talking about. The---the Defendant is saying that the---making an assertion from the bar that the Defendant was running at a certain pace. I think we should follow what is in the AEIC---18 43 As can be seen from the reproduced transcript, I did not intervene immediately in response to Liew’s counsel’s objections. I allowed Soh’s counsel to develop his points. It was only after Soh’s counsel made submissions to me that showed he was seeking to do a mathematical calculation of Liew’s pace and also in relation to Soh’s pace that I intervened. Lun: The Defendant---the Plaintiff has co---clearly contradicted his own evidence by saying, “At the 700- metre mark, 2½ minutes, they caught up with me.” That’s how he say the---that---that’s what his story. I’m taking in his story and doing a scientific---a mathematical approach to understand what is the pace that he run. And I think, Your Honour, I think we would be able to show you that on the Defend--- on the Plaintiff’s case, he’s running a record Sea Games---19 44 Prior to my intervention, in the earlier part of the first day of the trial proceedings, Liew himself had at various points said the 700 metres was only an estimate. In fact, from the first time Liew mentioned 700 metres, it was clear that it was only an estimate20. On many separate occasions he was questioned, he had repeatedly said the 700 metres and 2.5 minutes were only an estimate 18 Transcript, 1 September 2020, 106 / 20 – 108 / 29 19 Transcript, 1 September 2020, 108 / 32 – 109 / 7 20 Transcript, 1 September 2020, 73 / 23 – 74 / 5 28 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 that he was not sure of. Liew had used these words to qualify his response “probably around 700m”, “only an estimate”, “I do not know the exact pace, Your Honour, because I was not wearing a GPS watch at that time”21. It is clear from observing what transpired in court that prior to my statement that 700metres was only an estimate, the response that 700 metres and 2.5 minutes were only estimates had come from Liew himself. It is Liew himself who had clarified at multiple points that not only was the 700 metres only an estimate, the duration of 2.5 minutes was also an estimate. 45 I reproduce samples of relevant extracts to illustrate the response from Liew when questioned on the 700m issue. Q Ashley, my client had provided a video of where the race was and how the race panned out. I’m asking a specific question. What was your pace? A I do not know the exact pace, Your Honour, because I was not wearing a GPS watch at that time. Q That---that is fine. But from your evidence, at the 700-meter point, the race somewhat resumed. Am I right to say the order somewhat resumed? A Around the 700-metre point to the point where Mr. Taki was upfront and the rest of us were---rest of us 11 runners were in the tight pack once again22. ---------- Q which part of the 700-metre mark would there be in the whole of race course? Could you help to identify the--- the---the position? A I can’t be exactly sure of the exact point of the---of when the, uh, the act of fair play would formally end, 21 Transcript, 1 September 2020, 73 / 31 – 74 / 5; 83 / 25 – 27; 93 / 4 – 9 22 Transcript, 1 September 2020, 83 / 17 – 27 29 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 but I do recall a clearing on the right side of our running path. Q Now, Ashley, if your of---act of fair play ended by the 700 metres, how long did the runners take up to catch up to you up to the 700-metres mark? A Again, I cannot give exact timings, uh---uh, specially not wearing a GPS watch back then. I will estimate it being, uh, 2½ minutes to hour---uh, 2, uh---2 and a---2 minutes 30 seconds, 2 minutes 45 seconds, around there, maybe more23. --------- Q if you say that it took them 2½ minutes to catch up with you at a 700-metres mark--- A Around 2½ minutes, I don’t have exact, uh, duration24. 46 In the midst of this discussion, Liew’s counsel also contended that “this kind of calculations are better left for expert evidence and not from the bar”25 47 It was against such a background and under these circumstances that I intervened to say that 700 metres was only an estimate. The statement was made in the context of me explaining to Soh’s counsel that it would not be accurate to do a simple mathematical calculation based on 700 metres over 2.5 minutes because these were only estimates26. In relation to the pace of the other runners, I had also explained to Soh’s counsel that it would not be accurate to take the 23 Transcript, 1 September 2020, 93 / 4 – 16 24 Transcript, 1 September 2020, 108 / 2 – 4 25 Transcript, 1 September 2020, 111 / 14 – 17 26 Transcript, 1 September 2020, 108 / 32 – 112 / 18 30 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 estimate of 700 metres as they had run past the U-turn point and the estimate of 700 metres was with reference to the U-turn point. My intervention was to highlight that it was pointless “to go the scientific way” because we were only dealing with estimates27. Nevertheless, I did not shut out this point and I suggested to Soh’s counsel to make his points in Soh’s closing submissions and to test these estimates with other witnesses28. 48 Objections from Liew’s counsel to the line of questioning had necessitated interventions from me as regards whether Soh’s counsel should be allowed to ask further questions on the 700m issue in 2 areas – (i) questions to establish whether there was slowing down or not based on the estimates of 700 metres and 2.5 minutes in the abstract; (ii) questions to establish whether there was slowing down or not relative to Soh’s pace and/or the pace of other runners at the marathon race. 49 It was in this context that I had intervened to explore further with Soh’s counsel to try and better understand and follow the points that Soh’s counsel was seeking to make. 50 The statement that these were only estimates was a reminder to Soh’s counsel about what Liew himself had said - that we are only talking about estimates. The point I was driving home to Soh’s counsel is that it would not be useful to repeatedly go down this line of inquiry with a mathematical calculation 27 Transcript, 1 September 2020, 111 / 30 – 112 / 2 28 Transcript, 1 September 2020, 112 / 5 – 11 31 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 of Liew’s pace since Liew had said these were estimates29. But, if it was a matter of opinion or a scientific point about the 700 metres over 2.5 minutes that is relevant to prove the contention that this meant there was no slowing down, it would have to be properly established through the evidence of an expert. It was in this context that I said, if there was a scientific point that Soh was seeking to make, it would be necessary for Soh to adduce that evidence through an expert30. Nevertheless, as I had stated, Soh could include such points as are relevant in his closing submissions. Without being specific about it, I had meant that if it was a matter of simple mathematical calculation of Liew’s own pace based on Liew’s evidence of an estimate of 700m and an estimate of 2.5 minutes, he could include such points in his closing submissions31. 51 It was in this context that I directed that Soh’s counsel should move on from the 700m issue at the end of the first day of the trial proceedings as in my opinion, he had already amply explored this line of questioning based on the available evidence presented in court at that point in time. 52 Although my directions and ruling on Liew’s objections on the 700m issue given on the first day of trial were clear, Soh’s counsel remained fixated over the 700m issue and continued to come back to this line of questioning over the next two days of trial. Not unexpectedly, Liew’s counsel objected to the questions at various points32. The objections to questions concerning the 29 Transcript, 1 September 2020, 112 / 15 – 18 30 Transcript, 1 September 2020, 112 / 5 – 13 31 Transcript, 1 September 2020, 114 / 4 – 19 32 Transcript, 2 September 2020, 38 / 7; 38 / 17 – 26; 48 / 5 – 29; 49 / 2 – 50 / 20; 67 / 20 – 72 / 7; 83 / 12 – 19; 92 / 25 – 95 / 16 32 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 estimate of 700 metres in relation to the pace of other marathon runners, including Soh’s pace were on the basis that such questions were premised on bare assertions from the bar as there is no evidence of Soh’s pace or other marathon runners’ pace tendered in court. Liew’s counsel also objected to the repetitive line of questioning. 53 It was under such circumstances that I had intervened to reiterate that Soh would need to call an expert to come to court to render an opinion on whether running 700 m in 2.5 minutes is the normal pace of a marathon runner. The interventions were made to disallow questions that are unfair or irrelevant. As Soh has not tendered any evidence as regards a marathon runner’s pace or evidence of Soh’s pace, such questions that are based on assumptions or bare assertions from counsel would be unfair and irrelevant. Further, if there was any relevant evidence from which a relevant fact could be established from a simple mathematical calculation of 700m over 2.5 minutes, Soh’s counsel did not refer to it in the context of his cross-examination. I reproduce one example of a bare assertion from counsel that occurred in the morning of the second day of the trial proceedings to illustrate this point. Lun: Your Honour, it is the Plaintiff’s evidence that he has informed Dr. Kelvin of what happened during the race and which---which is why Dr. Kelvin posted the particular Facebook post. So, it was Defendant’s---it was the Plaintiff’s evidence yesterday. So, all I’m seeking for and which I have gotten an---a response and answer is that he did not tell Dr. Kelvin on the key fact that it took the pack only 7 and a---2½ minutes for the race to somewhat resume. That is my point. At the 700 metres mark. I will leave the submissions---to the submissions that for such a pace for 7---for runner to---to---to run 700 metres in 2½ minutes is an ex--- extremely quick pace where a common---a---a---an ordinary man like me will probably end up in hospital with that pace. So, Your Honour, we’ll leave 33 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 that for submissions. That is fine. But Your Honour, this particular fact has not been brought to the attention of the post---of the maker of the post that went viral.33 54 As evidenced by Liew’s counsel’s complaint on the third day of the trial proceedings, “I’m really resisting the urge to object, but I’m---I can’t help but lose my patience if it’s on hypothesis not on facts, the questioning, and if it’s going back to a point that has been dealt with in day 1.”34, what had really transpired in court was that Soh’s counsel had repeated the same line of questioning based on his own assertions and hypothesis and not based on evidence that had been adduced in court. 55 Rules of evidence and procedure are strict in the adversary system of trial as these rules are aimed at ensuring that the trial is fair and unbiased and that the parties have an equal opportunity to present their case and are not taken by surprise. The rules of evidence in an adversarial system are also based upon the system of objections of adversaries. In cross-examination, the opposing party has the right to object to questions that are unfair, questions that are repetitive or are irrelevant. Questions that are based on bare assertions or hypothesis and not based on proven facts or evidence that has been tendered are unfair to the witness. In this connection, I will highlight section 145(1)(b) of the Evidence Act which states, “Leading questions may be asked in cross- examination, subject to the following qualifications:..(b) the question must not assume that facts have been proved which have not been proved, or that particular answers have been given contrary to the fact.” 33 Transcript, 2 September 2020, 5 / 21 34 Transcript, 3 September 2020, 42 / 31 – 43 / 2 34 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 56 Therefore, it was an exercise of leniency that I had accorded Soh’s counsel immense latitude in the conduct of his cross-examination. The manner in which Soh’s counsel had gone about his cross-examination of Liew with repetitive questions on the 700m issue over 3 days of trial against objections from Liew’s counsel and against my directions and rulings which I had clearly given at the end of the first day of trial had required me to intervene in order to manage and control the trial proceedings and to ensure that the trial is conducted in a fair and efficient manner. 57 Applying the test that I have stated above, the question I have to ask is this, “Would a fair-minded and informed reasonable observer have formed a reasonable suspicion or apprehension of bias from his observation of my interventions under the circumstances?” As stated by the Court of Appeal, “the reasonable observer should not be confused with the person who has brought the complaint. There must be this measure of detachment. The assumptions that the complainant makes are not to be attributed to the observer unless they can be justified objectively…litigation is highly stressful and expensive, and litigants would likely oppose anything which they perceive would imperil their prospects of success; hence, the complainant is likely to lack objectivity and be far from dispassionate.” (see BOI and BOJ, [101]). 58 The reasonable observer is also taken to know of the traditions of integrity and impartiality that administrators of justice in general have to uphold. Hence, he or she would not jump to hasty conclusions based on isolated episodes of remarks taken out of context. The observer may also be taken to know generally that the court may adopt reasonable efforts to confine 35 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 proceedings within appropriate limits and to ensure that time is not wasted. (see BOI and BOJ [100]). 59 Further, the reasonable observer is neither complacent nor unduly sensitive or suspicious. He is the sort of person who always reserves judgment on every point until he or she has seen and fully understood both sides of the argument. He or she will be able to distinguish between what is relevant and what is irrelevant, and to decide what weight should be given to the facts that are relevant when exercising his or her judgment.35 60 Taking on the persona of such a fair-minded and informed reasonable observer, I find that a reasonable observer would have observed that my interventions were made in the context of dealing with valid objections from Liew’s counsel. He would also have noted that the objections to the line of questioning by Soh’s counsel, in so far as they were based on bare assertions and not based on proven facts or evidence that has been adduced or tendered in court, was because it would be unfair and irrelevant to ask those questions. Under these circumstances, a fair-minded and informed reasonable observer would see my interventions as my exercising my role in managing the adversarial trial process to disallow unfair, irrelevant or repetitive questions. As my statements that the 700 metres and 2.5 minutes were estimates had been based on what Liew himself had mentioned, a fair-minded observer would not form a reasonable suspicion or apprehension that bias is possible. A fair-minded observer would also have noted that it is still open to Soh to submit based on the evidence adduced, as can be seen from my directions that Soh could include relevant points (for example, a simple calculation based on Liew’s estimates) in 35 See BOI and BOJ [101] 36 Liew Wei Yen Ashley v Soh Rui Yong [2020] SGDC 280 his closing submissions. In light of the repetitive questioning against the directions from the court, a fair-minded and informed reasonable observer would observe that my interventions were done to ensure that the trial proceedings would be conducted in a fair and efficient manner. Second category of allegations that I have descended into the arena and invited Liew to change his estimate so as to wriggle out of his allegedly “untenable position”. 61 The second category of allegations complained of by Soh pertain to my questioning of Liew close to the end of the second day of the trial. I had suggested that Google Maps be used to facilitate cross-examination. Soh alleges that I had descended into the arena when I invited Liew to wriggle out of his allegedly “untenable position” and that I had allowed Liew’s counsel to tamper with and shape Liew’s testimony. 62 This series of interventions occurred at the later part of the second day of the trial proceedings after Soh’s counsel’s repeated cross-examination of Liew on the 700m issue. My intervention to suggest that Google Maps be used for the purpose of measuring distance from the U-turn point arose from the fact that Liew himself had mentioned two landmarks at various points in the course of his cross-examination – a bridge where Mr Takazaki overtook him and a clearing on his right where the rest of the chase pack caught up and he resumed his usual marathon pace. The two landmarks were brought up by Liew himself before my intervention to use Google Maps to measure the relevant distances. To illustrate, I reproduced relevant extracts of Liew’s testimony where he had mentioned the two landmarks a “clearing” (on the first day of the trial) and “the bridge” (in the morning of the second day of the trial). 37