EASTERN CARIBBEAN SUPREME COURT
BRITISH VIRGIN ISLANDS
IN THE HIGH COURT OF JUSTICE
CLAIM NO. BVIHC (COM) 2019/0180
GOLDTEAM GROUP LTD
 QIN HUI
 DAYSPRING INVESTMENTS LTD
 KING FAME TRADING LTD
 LIU XUEMIN
Mr. Richard Baird of Forbes Hare for the claimant
Mr. Michael J. Fay QC of Agon Litigation for Qin Hui
Dayspring Investments Ltd and King Fame Trading Ltd did not appear on this
Ms. Liu had not been served with the proceedings and did not appear
2020: October 12,
JUDGMENT (corrected under the slip rule)
 JACK, J [Ag.]: By an application made on 6 th October 2020 the first defendant (“Mr Qin”) sought an order
that I should recuse myself from continuing to hear this matter and should
not have any involvement with an application to strike out or dismiss an
application dated 23rd September 2020 issued by the claimant
(“Goldteam”) seeking a finding of contempt against Mr. Qin.
 The application came in the middle of a number of important
applications in the proceedings. On Friday 9th October 2020, I
was due to hear an application by Goldteam for permission to serve the
fourth defendant (“Ms. Liu”) outside the jurisdiction. The initial return
date on the application that I recuse myself was in November. It was
obviously inappropriate for me to hear the application in respect of Ms.
Liu whilst there was an unresolved question of my having to recuse myself.
Further the 23rd September application in respect of an alleged
contempt of court committed by Mr. Qin was due to be heard in November, as
was a cross-application by Mr. Qin to strike out the 23rd
September application. Again, neither of these applications could proceed
until the question of my recusal was resolved.
 Fortunately, due to a matter going off, I was able to list Mr. Qin’s
application to be heard on Monday 12th October 2020. Because Mr.
Fay QC relied solely on submissions based on the terms in which I expressed
myself in my judgment of 13th August 2020, no evidence was or
needed to be served by Mr. Qin. At the conclusion of Mr. Fay’s submissions
on 12th October, I indicated that I would not recuse myself. I
said that I would give my reasons in writing. These are those reasons.
 Because Mr. Fay indicated that Mr. Qin might want to appeal against my
refusal to recuse myself, but obviously could not without sight of my
reasons, I extended time for appealing, so that it ran from the handing
down of this judgment. After indicating that I would not recuse myself, I
heard the application to serve Ms. Liu outside the jurisdiction, which I
had stood over from the Friday. For the reasons I gave orally I granted
 There was no dispute as to the relevant principles. Mr. Fay QC, who
appeared for Mr. Qin, relied on the summary of the law given by Freeman J
in Surrey Heath Borough Council v Robb,
“19. It is of fundamental importance that judicial decisions should be made
free from bias or partiality. It has long been recognised that justice must
not only be done, it must also be seen to be done see R v Sussex Justices, ex parte McCarthy.
- The classic statement in respect of the legal test for apparent bias is
not in dispute. It is taken from… the speech of Lord Hope in Porter v Magill,
‘the fair-minded and informed observer, having considered the facts, would
conclude that there was a real possibility that the tribunal was biased.’
- As Lord Hope stated at [102-103], this was a minor modification from
the test used in re Medicaments and Related Class of Goods (No.2)
Lord Phillips MR at :
‘The court must first ascertain all the circumstances which have a bearing
on the suggestion that the judge was biased. It must then ask whether those
circumstances would lead a fair-minded and informed observer to conclude
that there was a real possibility… that the tribunal was biased.’
- [Counsel for the defendants] helpfully drew attention to the judgment
of Lord Hope in Helow v Secretary of State for the Home Department
setting out the characteristics of the notional fair-minded and informed
observer as follows:
‘2. The observer who is fair-minded is the sort of person who always
reserves judgment on every point until she has seen and fully understood
both sides of the argument. She is not unduly sensitive or suspicious, as
Kirby J observed in Johnson v Johnson.
Her approach must not be confused with that of the person who has brought
the complaint. The “real possibility” test ensures that there is this
measure of detachment. The assumptions that the complainer makes are not to
be attributed to the observer unless they can be justified objectively. But
she is not complacent either. She knows that fairness requires that a judge
must be, and must be seen to be, unbiased. She knows that judges, like
anybody else, have their weaknesses. She will not shrink from the
conclusion, if it can be justified objectively, that things that they have
said or done or associations that they have formed may make it difficult
for them to judge the case before them impartially.
- Then there is the attribute that the observer is “informed”. It makes
the point that, before she takes a balanced approach to any information she
is given, she will take the trouble to inform herself on all matters that
are relevant. She is the sort of person who takes the trouble to read the
text of an article as well as the headlines. She is able to put whatever
she has read or seen into its overall social, political, or geographical
context. She is fairminded, so she will appreciate that the context forms
an important part of the material which she must consider before passing
In Locabail (UK) Limited v Bayfield Properties Ltd,
it was stated by Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C
in a joint judgment at  that:
‘…By contrast, a real danger of bias might well be thought to arise
if…. on any question at issue in the proceedings before him the judge had
expressed views, particularly in the course of the hearing, in such extreme
and unbalanced terms as to throw doubt on his ability to try the issue with
an objective judicial mind (see Vakauta v. Kelly
); or if, for any other reason, there were real ground for doubting the
ability of the judge to ignore extraneous considerations, prejudices and
predilections and bring an objective judgment to bear on the issues before
him. The mere fact that a judge, earlier in the same case or in a previous
case, had commented adversely on a party or witness, or found the evidence
of a party or witness to be unreliable, would not without more found a
sustainable objection. In most cases, we think, the answer, one way or the
other, will be obvious. But if in any case there is real ground for doubt,
that doubt should be resolved in favour of recusal. We repeat: every
application must be decided on the facts and circumstances of the
individual case. The greater the passage of time between the event relied
on as showing a danger of bias and the case in which the objection is
raised, the weaker (other things being equal) the objection will be.
Finally, [counsel for the claimant] drew to the attention of the Court a
further passage in Locabail… to the following
effect: Although it is important that justice must be seen to be done, it
is equally important that judicial officers discharge their duty to sit and
do not, by acceding too readily to suggestions of appearance of bias,
encourage parties to believe that by seeking the disqualification of a
judge, they will have their case tried by someone thought to be more likely
to decide the case in their favour.'”
 Mr. Baird, for Goldteam, took a neutral stance on the application,
“because”, as he put it in his skeleton, “as a matter of principle, it is
not for the parties to choose their own judge.” He helpfully drew drew my
attention to our Court of Appeal’s decision in Riley v Attorney General,
which cited the leading cases cited above. Our Court of Appeal laid
particular weight on the English Court of Appeal decision in Otkritie International Investment Management Ltd v Urumov,
“There must be substantial evidence of actual or apparent bias before the
general rule can be satisfied. The issue of recusal is extremely fact
sensitive and recusal ought not to be lightly done. Bias is not to be
imputed to a judge by reason of his previous rulings or decisions in the
same case in which a party has participated and been heard) unless it can
be shown that he is likely to reach his decision by ‘reference to
extraneous matters or predilections or preferences’. [B]ias is not to be
imputed to a judge by reason of his previous rulings or decisions in the
 He also drew my attention to JSC BTA Bank v Ablyazov,
where the first instance judge had held the defendant to be in contempt of
a freezing order and to have lied while being cross‐examined about
his assets. The judge refused to recuse himself from subsequent involvement
in the case. That decision was upheld by the Court of Appeal, which asked
itself “whether there could be any difference between the judge who bears
in mind his own findings and observations and another (second) judge who
reads what the first judge has written, as he must be entitled to do”, and
answered at paras ‐:
“”[U]nless the first judge has shown by some judicial error, such as the
use of intemperate, let me say unjudicial, language, or some misjudgement
which might set up a complaint of the appearance of bias, the
fair‐minded and informed observer is unlikely to think that the first
judge is in any different position from the second judge – other than that
he is more experienced in the litigation. In this connection, it seems to
me that the critical consideration is that what the first judge does he
does as part and parcel of his judicial assessment of the litigation before
him: he is not ‘pre‐judging’ by reference to extraneous matters or
predilections or preferences. He is not even bringing to this litigation
matters from another case… He is judging the matter before him, as he
is required by his office to do. If he does so fairly and judicially, I do
not see that the fair‐minded and informed observer would consider
that there was any possibility of bias.”
Mr. Fay QC’s main challenge
 Mr. Fay QC raised a number of matters which he said meant that applying
the above tests I should recuse myself. However, the keystone of his
application was based on my approach to Mr. Qin’s defence to the 2010
default judgment in Hong Kong. All the other matters on which he relied he
accepted were less serous and might not, taken individually sustain a claim
of bias. In para 11 of his skeleton, Mr. Fay said:
“[A]t paragraph 15 [of the August judgment]: ‘…service of the Hong
Kong proceedings appears to have been effected in accordance with the terms
of the [Loan].’
- In fact, the evidence before the learned judge demonstrated that there
was, at the very least, a live issue as to whether the Loan contained any
provision addressing service. The learned judge chose to ignore that
evidence in order to find against the first defendant.
The fact that there was likely to be an issue on service was even
conceded by the claimant, but the learned judge chose to ignore that
concession in order to prefer the position of the claimant.
[A]t paragraph 16: ‘…the defence of forgery now sought to be run by
Mr. Qin [in respect of the Loan Agreement] bears a striking similarity [to
the defence ran against an SMI company back in 2010].’
- This was the most serious occasion on which the learned judge manifested
bias against the defendants.
In fact, no such defence was advanced or advocated by the first
defendant (or any of the other defendants) in respect of the Loan
Having wrongly directed himself that the first defendant was advancing a
defence of forgery in respect of the Loan (and without any good reason save
to provide himself with a purported basis to find against the first
defendant, and in particular to enable him to make a finding that the first
defendant was dishonest), the learned judge then considered and admitted as
evidence (notwithstanding that the same was not in evidence in these
proceedings) a judgment of the Hong Kong Court in proceedings that were
entirely unconnected to the current proceedings in Hong Kong or the Virgin
a. The judgment of the Hong Kong Court was not in evidence in these
b. The judgment of the Hong Kong court found that a suggestion made in
evidence by and on behalf of the first defendant (who was not a party to
such proceedings but who gave evidence in an affidavit in such proceedings)
that a board resolution was a forgery did not give rise to a triable issue.
There was no finding of dishonesty by the Hong Kong Court – there are
numerous occasions (indeed on most conflict of fact resolved by common law
courts throughout the world) where the Court does not accept the evidence
on a witness without concluding that such witness was dishonest.
c. It is the first defendant’s contention that:
i. the learned judge’s admission of the Hong Kong judgment for the
purported reasons set out in paras  to  of his judgment would have
been wrong and demonstrated bias and/or partiality against the first
defendant even if the first defendant had sought to advance a defence of
forgery of the Loan Agreement in these proceedings.
ii. absent such a plea by the first defendant there was, and is, not a
basis for the admission of the Hong Kong judgment.
iii. the learned judge appears to have come up with the purported defence
of forgery, and then relied on the judgment of the Hong Kong Court in
proceedings to which the first defendant was not a party, in order to
provide him with a basis to find that the first defendant was dishonest.
- The claimant has been quick to jump on the finding of dishonesty – see
for example paragraph 4(b) of its submissions filed on 31 July 2020, in the
New York proceedings, and in the HK proceedings.
 Neither side obtained a transcript of the hearing on 25th
and 26th June 2020. I have thus had to rely on the note I made
of the hearing and the documents filed on the e-litigation portal. Mr.
Temmink QC in his skeleton argument of 23rd June 2020 noted in a
“As this skeleton was being finalised, informal notification was received
of an unfiled summons accompanied by an unsworn and untranslated affidavit
of Mr. Qin, in support of an intended application to set aside the judgment
[in Hong Kong]. References in the skeleton below to the absence of any
application now need to be read in the context of that unevidenced,
untranslated, unsworn application which appears to have been made last
 I was not shown a copy of that affidavit at the June hearing. After
the hearing of the recusal application, Mr. Fay QC made a copy of the
affidavit available to me in translation. Most of the affidavit addresses
the argument that service on him of the Hong Kong proceedings was defective
because “[t]he address provided in the Loan Agreement is a correspondence
address and not a service address.” The issue argued by Mr. Qin in the
affidavit is that Great Panorama mistranslated the Chinese ideogram in the
Loan Agreement as “service address” where as it was merely an ordinary
address. All that Mr. Qin says about the merits is this in para 25 of his
“In addition to the preceding grounds relating to procedural matters, I
also have ample substantive grounds of defence against the plaintiff’s
claim. My solicitors have prepared a draft defence according to my
instructions, a copy of which is at pages 37 to 44 of Exhibit ‘QH-1’.”
 I have not seen the draft defence (and the terms of the footnote to
Mr. Temmink’s skeleton suggests he had not either), so it is unclear what
precisely was being alleged in the proposed defence. However, in the
quotation in my August judgment from para 40(c) of Mr. Qin’s third
affidavit in this claim he says expressly that
“I did not agree to give the purported guarantee, which is said to give
rise to the alleged debt in this claim, and the document appears
to contain a forgery of my signature.” (My emphasis.)
 In my judgment I can hardly be blamed for taking on its face Mr. Qin’s
assertion that he is making a defence of forgery. Certainly, that is how
Mr. Temmink QC presented the case to me. Mr. Fay QC did not say at the
hearing before me that this was a fundamental misunderstanding and that
there was no issue raised by Mr. Qin in Hong Kong as to his signature
having been forged on the guarantee or that the claim in the proceedings in
this Court was not the claim under the (allegedly forged) guarantee. Rather
his main point was that the 2010 judgment, which was relied upon by Mr.
Temmink as similar fact evidence, was inadmissible under the Evidence Act 2006.
I dealt with Mr. Fay’s submission on admissibility at paras ff of my
August judgment. He does not rely on my conclusions on the proper
construction of the 2006 Act to show bias on my part.
 In my judgment I was obliged to consider the evidence put forward on
the claimant’s part that Mr. Qin was seeking to set the default judgment in
Hong Kong on the basis of forgery, the same defence he had made in the 2010
Hong Kong proceedings. I cannot now remember whether it was argued that the
judgment of Fok J in the 2010 proceedings needed to be verified on
affidavit. Given that the judgment was an official Hong Kong Court
document, it would have been easy for the claimant to give an undertaking
to swear an affidavit exhibiting Fok J’s judgment. I do not recall this
being required by Mr. Fay. Rather his objection was its admissibility under
the 2006 Act.
 In my judgment there is nothing in my treatment of the defence of
forgery which could give rise to any justified fear of bias or partiality
on my part. I have never met any of the parties to this action. I know
nothing about the case apart from what I have learnt in the course of these
 As to the other submission that I wrongly concluded that the Hong Kong
proceedings had been properly served, all I said was that the proceedings
“appeared” to have been properly served. I was making no conclusion of
fact. Since hearing the recusal application, I have looked at the Hong Kong Rules of the High Court.
Order 10 rule 3(1)(b) provides for service at a contractually agreed
address. Order 10 rule 1(2)(a) provides for service at a defendant’s “last
known address”. This is precisely what I would have expected in a common
law jurisdiction like Hong Kong. My general knowledge of English-heritage
common law procedure was the basis for my conclusion in my August judgment
that there “appeared” to have been good service. Even if Mr. Qin succeeded
in his submission that the address of service was not a contractual
“service address” falling within Order 10 rule 3(1)(b), he would still face
the difficulty that, so far as appears, the address in the Loan Agreement
would appear to have been his last known address.
 In my judgment my conclusion that there appeared to have been good
service does not give rise to any reasonable apprehension of bias or
partiality as defined in the case law.
control of assets as director
 Mr. Fay QC’s next point was:
“At para : ‘In the current case, Mr. Qin remained the sole director of
King Fame after the purported transfer of the share to Ms. Liu. As such he
retained control of Applegreen Drive… the fact that he remained a
director was in my judgment sufficient on its own to mean that Applegreen
Drive fell within the English standard form of definition of assets subject
to a freezing order.’
- In fact, the mere fact that the first Defendant remained a director of
King Fame did not mean that he fell within such definition. The definition
further requires, as the learned judge accepted when he recited the
standard form of definition of assets at para  of his judgment, that a
person has the ‘power, directly or indirectly, to dispose of or deal with
[the asset] as if it were its, her or his own’.
The learned judge inexplicably, save that the learned judge was biased
and/or partisan against the first defendant, ignored:
a. the basic proposition of corporate law that a director is not entitled
to dispose or deal with a corporate asset as if such asset were his own.
b. the express words used in the definition of assets notwithstanding that
he had recited it a few paragraphs before.
c. the fact that the first defendant had intimated a desire to resign as a
director of King Fame, and only remained a director because the claimant
would not consent to is resignation.
d. the fact that the registered agent of Vistra changed its records to
record Ms. Liu as the client of record (notwithstanding the inadvertent
failure to change the director).”
 Mr. Fay is correct to assert as a matter of general law that “a
director is not entitled to dispose or deal with a corporate asset as if
such asset were his own.” However, one does not need to sit long in this
Court to learn that plenty of directors do in fact deal with company assets
as their own, notwithstanding the strictures of company law. Further a
director who is the beneficial owner may be able to deal with a company’s
assets as his own on Duomatic principles:
Ciban Management Corp v Citco (BVI) Ltd and another
 This point has been considered by our legislature. The Charging Orders Act 2020
allows the Court to make charging orders over assets in which the judgment
debtor has an “interest”. “Interest” is defined in section 2 as meaning:
“any direct or indirect legal, beneficial or equitable interest in the
ownership of property, including without limiting the foregoing,
whether property is (a) held in a debtor’s own name or otherwise, or
(b) is solely or jointly held by a debtor, or (c) where a debtor has
the power, directly or indirectly, to dispose of or deal with property
as if it were his or her own, or (d) where a debtor owns share in any
company or other legal entity which in turn directly or indirectly owns
share in a company incorporated within the Territory…
 The purpose of the Act was described by Mr. Baba Aziz, the
Attorney-General, during the Bill’s passing through the House of Assembly
“[S]ome judgment debtors seek to avoid the enforcement of judgments of
the High Court. This Bill is intended to confer jurisdiction on the
court to make orders imposing a charge on assets which are directly or
indirectly owned or controlled by a judgment debtor. This includes
where assets or shares are held in layered corporate structures which
are ultimately beneficially owned by a debtor. The enactment of this
Bill will demonstrate that the Territory is not a haven for
recalcitrant debtors and those who would seek to evade justice by means
of in part the use of asset protection structures.” (My emphasis.)
This statement is admissible when interpreting the Act: Interpretation Act
 As Barry Leon and Dancia Penn OBE QC, in one of the first commentaries
on the new Act, explain:
“In the BVI, the lack of a direct remedy for judgment and award creditors
against asset protection structures led to an anomaly. Under [the] Chabra extended freezing order jurisdiction,
assets under the direct or indirect control of a defendant could be frozen
if there was an asset flight risk. Control included the power to procure
the sale of an asset not held in a defendant’s name. Thus, pursuant to Chabra jurisdiction, the assets of a corporate defendant’s
subsidiary could potentially be frozen.
However, come enforcement, judgement and award creditors encountered
difficulties due to layered asset protection structures. Enforcement
remedies often did not extend as far as asset preservation remedies,
leaving judgment and award creditors sometimes unable to enforce their
judgement or award against frozen assets.”
 They conclude that the wide definition of “interest” in section 2:
“ensures that where a judgement debtor has used a layered asset protection
structure to try immunise assets beneficially owned by the debtor from
enforcement, courts may disregard the structure and reach down through
corporate layers to enforce the judgment or award against assets in the
 A key issue when this issue of construction comes to be decided is
whether a debtor’s ”
power, directly or indirectly, to dispose of or deal with property as
if it were his or her own” is limited to a legal power or whether it
extends to a de facto power. When a debtor has a legal power, it was
already possible to appoint an equitable receiver to exercise the power
in order for a judgment creditor to execute against the assets which
are the subject of the power:
Tasurruf Mevduati Sigorta Fonu v Merrill Lynch Bank and Trust Co
However, where assets were merely in the de facto control of the
judgment debtor, it was only possible to obtain an interim appointment of
an equitable receiver, not to obtain a final order: see the general
discussion in VTB Bank v Miccros Ltd and another.
 In the light of the Attorney-General’s comments, in my judgment it is
strongly arguable that the 2020 Act now allows execution against assets
over which the judgment debtor has de facto control to use as his
or her own, whether as a company director or as the beneficiary of a
discretionary trust, where the trustee in practice always follows the
 Accordingly, I do not accept Mr. Fay QC’s point 2.b. A company
director can potentially have de facto control of company assets.
It is a question of fact. If as a matter of fact Mr. Qin had control of the
assets, points 2.c and 2.d fall away. The transfer to Ms. Liu would merely
be part of Mr. Qin’s dissipation of assets under his de facto
control. No basis for recusal is shown in my judgment.
The risk of dissipation
 Mr. Fay QC criticised my finding that there was solid evidence of
“At para  [of the August judgment]: ‘The timing of the transfer is
solid evidence in my judgment of Mr. Qin actively dissipating his assets.
Coupled with the good arguable case that he is a dishonest man, in my
judgment there is a real risk that assets will disappear.’
- In fact, the evidence demonstrated that the discussions concerning the
transfer of the shares commenced in late 2017, and that it was done after
taking tax advice from Jason Wong.
a. The learned judge’s finding that such transfer was ‘solid evidence of
Mr. Qin actively dissipating his assets, notwithstanding that the Loan
Agreement was not entered into until 26 June 2018, again demonstrates bias
and/or partiality on behalf of the leaned judge.
b. Reference is made below to the learned judge’s summary dismissal at para
 of the relevance of the evidence of the New York accountant that
advised on the transfer.
c. For the reasons identified above, there was and is no basis and/or
admissible evidence upon which the learned judge could have fairly
concluded that the first defendant was a dishonest man (or even that there
was an arguable case that he was a dishonest man). The fact that the
learned judge did so conclude demonstrates a bias or partiality.”
 If there is anything in this point, then it should have been the
subject of an appeal. There was evidence that by late 2017 Mr. Qin must
have known he was facing financial difficulties. The critical date,
however, is the date of the transfer. That was merely days before the
collapse of Mr. Qin’s business empire. I have dealt with the evidence of
dishonesty arising from the 2010 judgment already. In my judgment, there is
no proper ground for recusal.
 Mr. Fay QC’s penultimate point was in relation to my holding in
relation to the sham argument.
“At paragraphs 55: ‘Here, however, there is some evidence to support [a
case that the deed of gift is a sham]. Firstly, if this was an attempt at
dissipation, then it may be possible to infer that the deed of gift was not
the true expression of the parties’ intentions. Secondly, the signature of
Mr. Qin and Ms. Liu on the deed of trust were both witnessed by Emma,
rather than some independent person. This raises the question of how
seriously the parties took the making of the deed. Thirdly, there may be an
issue with the formal validity of the deed… This may as a matter of
Hong Kong law, render the deed invalid. Fourthly, Mr. Qin has continued to
visit New York. There is no evidence of current matrimonial difficulties,
so he presumably stays at Applegreen Drive, which in any event is the
- Each of these four items comprise speculation by the learned judge, and
matters which were not canvassed at the hearing save in respect of:
a. the second point in respect of which there was evidence, ignored by the
learned judge, that Eric Hu of Squire Patton Boggs had specifically told
Emma that she could witness the deed;
b. the fourth point in respect of which there was no evidence or suggestion
that the matrimonial difficulties had been resolved.
c. the claimant did not suggest that the first defendant was resident at or
staying at the Applegreen property, and neither of the K2 reports
commissioned by the claimant suggested or even hinted that the first
defendant was staying at the Applegreen property.
If those suggestions had been made, then the first defendant would have
- If, the learned judge thought it appropriate to speculate as to factual
matters then he ought to have given the parties the opportunity to be heard
on the same. His failure to do so, and his tendency to only speculate on
matters in such a way as to prejudice the defendants and favour the
claimant suggests and/or gives the impression of bias and/or partiality on
the part of the learned judge.”
 Again, in my judgment these are matters for an appeal, not a recusal
application. Mr. Temmink QC dealt with the transfers at paras ff of his
skeleton for the June hearing and referred in oral argument to the alleged
“cosy family arrangement”. As to Mr. Fay’s points: 1.a, I did not suggest
that Emma could not witness the deed of gift as a matter of law. It is the
inference to be drawn from choosing her as the witness to which I alluded.
1.b is tendentious: the making of the gift was said to be the means of
resolving the alleged matrimonial difficulties. Mr. Qin did not present any
evidence that the matrimonial difficulties were ongoing or that the gift
did not resolve the matrimonial difficulties, so 1.b is a not unreasonable
inference from that silence. The deed was signed during what appears to
have been a family holiday in Greece. As to 1.c, there was no dispute that
Applegreen Drive was the family home. If there were no matrimonial
difficulties, it is a reasonable assumption Mr. Qin would stay there to see
his wife and children when he was in New York. These points do not in my
judgment give rise to a reasonable fear of bias on my part.
Mr. Fay QC’s last point
 Mr. Fay QC’s last point was this:
“At para  [of the August judgment], the learned judge found as a fact,
notwithstanding that the hearing was an inter partes interlocutory
hearing with (as the learned judge accepted incomplete evidence and) no
cross examination that ‘…the property was indeed offered at a fire
sale price in April 2019’.
i. It was not appropriate for the learned judge to make such a finding, and
he did not need to do so in order to make the order he clearly wished to
make – the learned judge only needed to consider whether there was a good
arguable case that the property was offered at a fire sale.
ii. The finding was against the weight of the evidence, and the judge’s
approach to the K2 report (wrongly described by the judge as the K2
evidence) was strikingly different to his approach to the evidence of the
lawyer that advised on the share transfer.
- The fact that the learned judge did make such a finding (irrespective of
whether it was against the weight of the evidence) again demonstrates a
bias and/or partiality on behalf of the judge.
In order to make such finding, the learned judge refused to consider the
affidavit filed by King Fame after the hearing but before judgment was
delivered which evidenced that the property had not been offered for sale.
The learned judge failed to consider why, if as he speculated the
property had been offered at a fire sale price, it had not been sold. The
fact that it had not been sold at a fire sale price strongly suggests that
it was not offered at such a price.
iii. Moreover, a comparison between the approach of the learned judge to
evidence relating to valuation/sale price adduced by the claimant, and the
evidence which the second defendant sought to adduce by way of the
affidavit of Nicholas Brooks demonstrates a bias or partiality against the
- At para  of his judgment, the learned judge referred to the extract
for the realtor.com website exhibited by Mr. Brookes and said ‘it
apparently shows an estimated value of Applegreen Drive. However, insofar
as the true value of Applegreen Drive [is relevant], the Court would
usually expect expert valuation evidence rather than the notoriously
unreliable figures which real estate websites can generate.’
In contra distinction to those comments, at para  of his judgment he
relies on exactly the same ‘notoriously unreliable figures which real
estate websites can generate’ in order to find that the property had been
offered for sale at one of the two figures contended for by K2 (based
entirely, and solely, on K2’s review of the real estate agent website).”
 In making point i, Mr. Fay QC overlooks what I said at para  of my
“The Court is normally reluctant to resolve this type of dispute on
affidavit evidence without cross-examination. However, here it is said that
the Court was deliberately misled. If that allegation is established, then
it has a very material impact on the Court’s decision whether to discharge
the ex parte injunction and whether to reimpose an injunction
following the discharge… I therefore consider that I have to do the best
I can on the evidence adduced by the parties.”
 Whether the figure on the realtor.com website was an offer price or an
estimate of value is a binary question. If it was the latter, then I was
misled when the claimant obtained its ex parte injunction. That
would then have led to various issues about whether the gravity of the
misrepresentation should have resulted in an immediate discharge of the
injunction, whether the injunction should be reimposed and various other
points. If it was the former, none of these issues arose. In these
circumstances, it was in my judgment necessary to resolve this question of
fact as best I could on the evidence available at the June hearing. That is
what I did.
 Mr. Fay QC’s submission that these matters should have been determined
on a “good arguable case” basis is incorrect in my judgment. If I
determined both sides had good arguable cases, there would be no principled
basis on which to decide whether I had been misled or not at the ex parte hearing. Schrödinger’s cat has no place in the civil
courtroom. The authorities on the discharge of ex parte
injunctions require the issue of misrepresentation to be determined one way
or the other.
 The suggestion that I adopted this procedure in order “to make the
order [I] clearly wished to make” is a nonsense. Once I decided the facts
had to be determined, I determined the facts. Only then did I consider what
order to make in the light of my factual conclusions.
 Point ii is an appeal point, not a point on recusal. As to ii.2, I did
not refuse to consider the affidavit. As I said in paras ff of my
August judgment, if Mr. Qin wanted to introduce new evidence after the
circulation of my draft judgment, he should have issued (as I invited him
to) an application for that purpose, so that the other parties could
comment on whether the evidence should be admitted and, if it was admitted,
adduce evidence in answer. No application was issued.
 Point iii.2 is comparing apples and pears. An offer price on a webpage
will come from some source, such as a feed from a selling agent. In other
words, it will be an exact figure independently generated from external
data. By contrast, an estimated value will be generated by an algorithm
internal to the web-provider. Such algorithms are never going to be as good
as live expert valuers. In any event, the rights and wrongs of these points
could have been argued out, if Mr. Qin had issued an application as he had
been invited to. They were wholly subsidiary, given that I did not allow
the new evidence in.
 Again, this ground for recusal is not in my judgment made out.
 Accordingly, in my judgment none of the grounds advanced by Mr. Fay QC
for my recusing myself are made out. Nothing in my judgment would “lead a
fair-minded and informed observer to conclude that there was a real
possibility… that [I] was biased.” I refuse Mr. Qin’s application. For
completeness, I should add that in the light of my conclusion on the
substantive recusal application, I have not had to consider issues of delay
Commercial Court Judge [Ag.]
By the Court
 EWHC 1952 (QB).
 1 KB 256.
 UKHL 67,  2 AC 357 at para .
 EWCA Civ 350,  1 WLR 700.
 UKHL 62,  1 WLR 2416.
(2000) 201 CLR 488 at para 53
 EWCA Civ 3004.  QB 451.
(1989) 167 CLR 568.
MNIHCVAP2020/0003 (determined 23rd June 2020). Stuart A
Lockhart v Valentina Nonini and others ANUHCVAP 20198/0004
(determined 14th October 2020) is to the same effect.
 EWCA Civ 1315 at paras  and .
 EWCA Civ 1551,  1 WLR 1845.
No 15 of 2006, Laws of the Virgin Islands.
Cap 4, section 54, Laws of the Special Administrative Region of
See Re Duomatic Ltd  2 Ch 365 and Multinational Gas and
Petrochemical Co v Multinational Gas and Petrochemical Services Ltd
 Ch 258 at 280 (“a company is bound, in a matter which is
intra vires and not fraudulent, by the unanimous agreement of its
members”), approved by the Privy Council in Meridian Global Funds
Management Asia Ltd v Securities Commission  2 AC 500 at 506.
 UKPC 21 at para .
No 5 of 2020, Laws of the Virgin Islands.
Cap 136, Laws of the Virgin Islands.
BVI takes Significant Steps to Enforce Court Judgments and
Arbitration Awards, IFC Review, 12th August 2020,
accessed 17th October 2020.
See TSB Private Bank International SA v Chabra  1 WLR 231.
 UKPC 17,  1 WLR 1721.
BVIHC (COM) 2018/0067 (determined 23rd January 2020) at