COURT OF APPEAL, MALAYSIA
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www.ipsofactoJ.com/appeal/index.htm [2005] Part 1 Case 6 [CAM] |
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COURT OF APPEAL, MALAYSIA |
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Judgment
Arifin Zakaria, JCA
(delivering the judgment of the court)
The appellant and one Gitu Chakravathy were members of the Penang Sports Club ("the club"). On June 7, 1995, they were alleged to have abused and assaulted one another within the club premises. Each had lodged a complaint against the other. The complaints were referred to the disciplinary committee (DC) appointed by the main committee (MC) pursuant to rule 35(a) of the Rules of the Club. (In this judgment any reference to a rule shall mean the rule in the Rules of the Club). The DC in this case comprised of the following members:
PR Manecksha, an advocate & solicitor, as chairman;
Loo Choo Huat, a senior assistant commissioner of police (II), officer in charge of Criminal Investigations Department, Penang;
Foong Kai Choong, an advocate & solicitor; and
Paul Chong, a quantity surveyor.
The secretary of the club, Sunny Kumaraisen was appointed secretary of the DC pursuant to reg 10 of the by-laws of the disciplinary committee of the club.
At their first meeting held on June 10, 1995 the DC suspended both the appellant and Gitu Chakravathy under rule 35(j) pending the inquiry. It should be noted that Paul Chong was absent from this meeting.
The DC subsequently met on June 27, 1995 to hear the complaints against both the appellant and Gitu Chakravathy. At the conclusion of the inquiry on July 6, 1995 the DC found both the appellant and Gitu Chakravathy guilty as per charge and as a penalty the appellant was suspended for four months while Gitu Chakravathy was suspended for one month from the privileges of membership. The appellant was dissatisfied with the decision of the DC and he appealed to the MC against the said decision. The MC heard the appeal on August 2, 1995 and having dismissed the appeal, the MC enhanced the suspension order of the appellant from four to six months. The appellant then brought this action against the club seeking, inter alia, the following reliefs:
a declaration that the DC's decision dated July 6, 1995 and the MC's decision dated August 2, 1995 are null and void and of no effect;
an injunction to restrain the respondent from suspending and preventing the appellant from using the club's premises;
damages; and
interest and costs.
The High Court dismissed the appellant's claim with costs and hence this appeal.
The complaints by the appellant centred on the following issues:
the chairmanship of the DC;
the composition of the MC;
the failure of respondent to furnish the report of house member, Melvin Low, to the appellant; and
the increase of the penalty imposed on the appellant by the MC.
We shall deal with each of these complaints in the course of this judgment. Firstly we think it is essential for us to appraise the relevant law.
The issues raised by the appellant concern the application of the rules of natural justice requiring impartial adjudicators and fair hearing to domestic inquiry involving members of club, trade union or professional body. It is common ground that the respondent in the present case is a social club and it is governed by its own constitution and the rules of the club.
It is not in dispute that the rules of natural justice do apply to a club like respondent, therefore, members of the club could not arbitrarily be expelled or suspended without first being given a hearing, for their contracts of membership are held to include a duty to act fairly; by accepting them as members and receiving their subscription the club impliedly undertakes to treat them justly and in accordance with rules.
The question is: To what extent is the court likely to intervene in matters involving domestic tribunal of a social club, as in the present case, as opposed to tribunals sitting in judgment over matters of a trade or profession. The stand taken by the court is succinctly stated by Denning LJ in Lee v Showmen's Guild of Great Britain [1952] 1 All ER 1175, at p 1181:
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The question in the present case is: To what extent will the courts examine the decisions of domestic tribunals on points of law? This is a new question which is not to be solved by turning to the club cases. In the case of social clubs the rules usually empower the committee to expel a member who, in their opinion, has been guilty of conduct detrimental to the club, and this is a matter of opinion and nothing else. The courts have no wish to sit on appeal from their decisions on such a matter any more than from the decisions of a family conference. They have nothing to do with social rights or social duties. On any expulsion they will see that there is fair play. They will see that that the man has notice of the charge and a reasonable opportunity of being heard. They will see that the committee observe the procedure laid down by the rules, but will not otherwise interfere: see Labouchere v Earl of Wharncliffe (18); Dawkins v Antrobus (1). It is very different with domestic tribunals which sit in judgment on the members of a trade or profession. They wield powers as great, if not greater, than any exercised by the courts of law. They can deprive a man of his livelihood. They can ban him from the trade in which he has spent his life and which is the only trade he knows. They are usually empowered to do this for any breach of their rules, which, be it noted, are rules which they impose and which he has no real opportunity of accepting or rejecting. In theory their powers are based on contract. The man is supposed to have contracted to give them these great powers, but in practice he has no choice in the matter. If he is to engage in the trade he has to submit to the rules promulgated by the committee. Is such a tribunal to be treated by these courts on the same footing as a social club? I say: "No". A man's right to work is just as important, if not more important, to him than his rights of property. These courts intervene every day to protect rights of property. They must also intervene to protect the right to work. |
The approached as propounded by Denning LJ in Lee v Showmen's Guild, supra, was cited with approval by the Federal Court in Chong Kah Lim v Yong Su Hian [1979] 2 MLJ 11. In this context we would also refer to the case of Singapore Amateur Athletics Association v Huron Mundir [1994] 1 SLR 47. In that case Warren L.H. Khoo J delivering judgment of the CA said at p 59:
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Counsel is obviously right on the law. The jurisdiction of the courts in reviewing the decisions of domestic tribunals is clearly of a limited nature. The decision of such a tribunal cannot be attacked on the ground that it is against the weight of evidence. The function of the courts is to see that the rules of natural justice have been observed, and that the decision has been honestly arrived at. The court has no power to review the evidence for the purpose of deciding whether the tribunal came to a right conclusion, it is not the function of the court when exercising such supervisory jurisdiction to resolve issues of fact which are within the proper sphere of the tribunal's inquiry. |
In the light of the principles set out above we will now consider the issues raised by the appellant before this court.
Firstly the appellant took objection to the appointment of Mr. Paul Manecksha as chairman of the DC on the ground of likelihood of bias against him. Having heard the evidence of both the appellant and Paul Manecksha, the learned judge held that there is no merit in the appellant's objection. He accepted the evidence of Paul Manecksha that he had no feeling of bias or animosity against the appellant.
The appellant contended that based on the authorities the chairman of DC must be above suspicion of bias and actual bias need not be proved. The Indian Supreme Court in Andhra Pradesh State Road Transport Corporation v Satvanaravan Transporters AIR 1965 SC 1303 at p 1306 observed:
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It is an elementary rule of natural justice that a person who tries a cause should be able to deal with the matter before him objectively, fairly and impartially. As has been observed in Jowitt's Dictionary of English Law, any thing which tends or may be regarded as tending to cause such a person to decide a case otherwise than on evidence must be held to be biased. If a person has a pecuniary interest in the case before him, that is an obvious case of bias which disqualifies him, to try the cause. If a person is hostile to a party whose cause he is called upon to try, that again would introduce the infirmity of bias and would disqualify him from trying the cause. In dealing with cases of bias it is necessary to remember that no one can act in a judicial capacity if his previous conduct gives ground for believing that he cannot act with an open mind. The broad principle which is universally accepted is that a person trying a cause even in quasi-judicial proceedings, must be able to act above suspicion of unfairness. |
Similarly in Franklin v Minister of Town and Country Planning [1948] AC 87 at p 103, Lord Thankerton stated:
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.... the use of the word "bias" should be confined to its proper sphere. Its proper significance is to denote a departure from the standard of even-handed justice which the law requires from those who occupy judicial office or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this clearly is that having to adjudicate as between two or more parties he must come to his adjudication with an independent mind, without any inclination or bias towards one side or the other in dispute. |
As often been said, justice should not only be done, but should manifestly and undoubtedly be seen to be done. In other words whether justice has been done or not in a given case is necessarily a question of perception. As Atkins LJ said in Shrager v Basil Dighton Ltd [1924] 1 KB 274 at p 284:
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Next to the tribunal being in fact impartial is the importance of its appearing so. |
Lord Denning in Metropolitan Properties (FGC) Ltd v Lannon [1969] 1 QB 577 had propounded the "reasonable people" test. The House of Lords in R v Gough [1993] AC 646, at least in criminal case, prefers the test of "real danger" or "real likelihood". This is expressed in the judgment of Lord Goff at p 670 when he said:
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I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices of members of inferior tribunals, or with jurors, or with arbitrators .... Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. |
The test as propounded by the House of Lords is clearly more objective than the earlier test as propounded by Lord Denning MR.
The appellant's contention is that the chairman, on account of his part relationship with the appellant, would not be in a position to act fairly. appellant listed 13 grounds in support of his objection. The chairman in his evidence refuted all the allegations made by the appellant and stated categorically that he harbours no feeling of bias or animosity against the appellant. The appellant did not call any witness to support the allegations. In other words the allegations against the chairman remain mere allegations unsupported by evidence. Furthermore, it is observed that these allegations relate more to past relationship between the appellant and the chairman and is not at all related to the subject matter of the proceeding before the DC. The authorities cited to us by the appellant deal with instances where the conduct of a member of the tribunal under challenge relate directly to the subject matter of inquiry before the DC. Take for instance, the case of Re Singh Kalpanath [1992] 2 SLR 639, there the appellant who is an advocate and solicitor, was found guilty of misconduct by the disciplinary committee. The complaint was against the chairman who was alleged to have met with the applicant's legal assistant twice during the pendency of the hearings and had threatened or warned the legal assistant and suggested to him that he had made up his mind about the veracity of the witness. Similarly in the case of Florence Bailes v Dr Ng Jit Leong [1985] 1 MLJ 374 where a committee member of the club who took part and deliberated in the disciplinary proceeding before the committee is found to have personal interest in the outcome of the inquiry because of his personal relationship with the complainant.
In the present case we agree with the learned trial judge that there is no cogent evidence to support the appellant's allegations against the chairman of the DC and in any event the allegations are not at all related to the matter before the DC. The mere fact that the appellant is not in the thickest of term with the chairman of the DC, that alone, in our view, without other evidence, would not be conclusive ground that he is likely to be biased. See Minolta Malaysia Sdn Bhd v Ng Siew Phang [1996] 3 AMR 3421.
Secondly, the appellant complained against the presence of L.Y. Hong and Melvin Low at the MC meeting. L.Y. Hong had given evidence before the DC while Melvin Low was the author of the report dated June 7, 1995, a copy of which was given to the chairman and all the other members of the DC. He contended that by allowing these two gentlemen to attend the MC meeting hearing the appeal by the appellant against the DC's decision the respondent had acted in breach of the rule of natural justice and for that reason the decision of the MC ought to be vitiated.
In supporting his arguments the appellant relied heavily on the case of Rohana Ariffin v Universiti Sains Malaysia [1989] 1 MLJ 487. In that case the applicants were lecturers charged with offences under Universiti Sains Malaysia (Discipline Rules) 1979. They were both found guilty by the disciplinary authority. They then applied to the High Court by way of certiorari to have the finding of the disciplinary authority quashed. One of the grounds advanced before the High Court was that the complainant, the registrar of the university, was present during the proceedings before the disciplinary authority. It should, however, be emphasized that in that case the court found the registrar was very far from being a mere nominal complainant and had shown active partisanship in the proceedings before the disciplinary-authority. The High Court allowed their application and quashed the decision of disciplinary authority. The principle that may be distilled from that case and the line of authorities referred to in that case is that, the complainant or prosecutor should not participate in a decision or in an appeal from a decision, and should not even appear to participate; to do so would be contrary to the rule of natural justice.
In the case before us, L.Y. Hong was called as a witness before the DC. His evidence before the DC is brief, it reads:
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G5 – Mr. L.Y. Hong – By PR Manecksha – On that night, the supervisor came in to the meeting and asked for the house member. I am the bar chairman. I together with some other committee members went to the bar. I listened to what Gitu had to say. Then Hari Singh came and said I shouldn't listen to one side. I scolded Hari and asked him to shut up and said he and you promised not to fight. Yet he's fighting again. Hari Singh left the bar. After that – I met Darshan. He said I listened to one side and I told him you promised not to fight and you did it again. |
From his evidence we do not think L.Y. Hong could by any means be regarded as a complainant or prosecutor in this case. However, in his evidence he admitted listening to the version given by Gitu Chakravathy and had expressed his displeasure of the appellant's conduct for being involved in a fight again, There is nothing to suggest that L.Y. Hong had any personal grudge against the appellant, however, judging by his evidence before the DC he was not at all pleased with what happened that night and seems to suggest that the appellant was partly to blame if not wholly to blame for the incident. In the circumstances, we think it may be difficult for him to act impartially in considering the appeal before the MC.
As stated by the learned author, MP Jain in his book Treatise on Administrative Law, 1996 edn, vol I, p 42:
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A judge knowing the facts from inside may feel that there was no bias in the decision maker, but a reasonable man looking at the same facts externally may still feel that justice was not done in the instant case. In this context, therefore, the test of "actual bias" gives place to the broader test of "real likelihood of bias". Needless to say, where actual bias exists, administrative proceedings will be vitiated. But actual bias is not always necessary for this purpose. Even where there is "real likelihood of bias", proceedings are vitiated. |
In Rattan Lal Sharma v Managing Committee AIR 1993 SC 2155 the Supreme Court of India observed:
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.... the test is not whether in fact a bias has affected the judgment: the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must be seen to be done. |
The other complaint against L.Y. Hong is that having given evidence before the DC he then sat on the MC to hear die appeal from the DC. To allow such practice the appellant contended is to allow him to act both as a witness and as a judge at the same time. This, the appellant contended is contrary to the rule against bias. In this regard we agree that it is not necessary for the appellant to prove actual bias, what he needs to show is merely a real likelihood of bias on the part of tribunal hearing the appeal. In the present case we feel that the appellant's apprehension is justified. This may arise from the fact that L.Y. Hong, who had personal knowledge of the incident and was in fact called to give evidence before the DC, may in all likelihood have a strong influence on the other members of the MC in the course of their deliberation. For that reason as a general rule a witness after having given evidence should not be allowed to sit on the enquiry or the appellate body. Furthermore, at the trial, no evidence was adduced as to what had transpired in the MC during the hearing of the appeal. On the above premises we hold that the decision of the MC ought to be vitiated.
The second complaint by the appellant also relates to the composition of the MC when considering the appeal from the decision of the DC. This time the complaint is against one Melvin Low who also sat as a member of the MC. It is part of the agreed facts that Melvin Low, who was a house member, did submit a report to the DC regarding the incident on the night in question. This report appears at p 385 of the record of appeal. The report stated that, Mr. Vijay, the supervisor of the club, informed him that there was a fight in the bar. He then went to investigate. He met Mr. Gitu Chakravathy, one of the complainants, who led him to the toilet and narrated to him what had happened. Later on, the appellant saw him and told him his version of the incident.
Melvin Low did not give evidence before the DC but his report was made available to the members of the DC. In view of that the appellant contended that Melvin Low should not have sat on the MC as he was involved in the investigation and had submitted a report to the DC, which in fact forms the complaint before the DC. After considering the content of the report we find that there are merits in the appellant's contention. We are of the view that since he was responsible for putting up the report, he should not have sat on the MC. To do so would be contrary to the rule against bias. This view finds support in the case of Collins v Lane, Cornish and Worcester Norton Sports Club Ltd [2003] LLR 19. In that case, the appellant, who was a member of Worcester Norton Shooting Club, was removed from the membership of the club by the committee. He brought a motion against the club, the motion was dismissed by the recorder who heard the case. On appeal to the Court of Appeal, his claimed was allowed. One of the grounds in allowing the appeal was that the chief range officer who was responsible for putting the complaints before the committee on behalf of the range officers took part in the decision. In the circumstances the Court of Appeal held that the rule against bias was undermined.
The other issue raised by the appellant is the failure of the club to furnish him with the report of Melvin Low dated June 7, 1995, a copy of which was made available to the chairman and the other members of the DC. According to the agreed facts, on June 12, 1995 the appellant requested for a copy of the report. The request was denied. The appellant contended that this constitutes another blatant breach of the rule of natural justice which stems from the basic principle that a person standing charged before the DC ought to be given whatever report made available to the DC in order that he may answer any allegations that may be made against him. This limb of the rule of natural justice is succinctly stated by Edgar Joseph J (as he then was) in Rohana Ariffin v Universiti Sains Malaysia, supra, where at p 493 he stated:
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It is a well-established principle of administrative law that anything that restricts, or appears to restrict, the defendant's ability to present his case may be held to be a breach of procedural fairness and, thereby, susceptible to judicial review; for example, a defendant is generally entitled to notice of evidence that might assist his case. It is, therefore, a breach of natural justice for the prosecution to conceal such evidence: R v Layland, Justices Ex parte Hawthorn. |
At the hearing before the court the chairman of the DC defended his ground for not supplying the report to the appellant. In his evidence he said:
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As regards allegation in paragraph 7(b) of the statement of claim the plaintiff could have called the house member Melvin Low as witness at the enquiry if he wished to. The DC did not take into account any report made by this Melvin Low. |
In BSS Kanda v Government of the Federation of Malaya [1962] MLJ 169 there the appellant was dismissed by the Commissioner of Police on the ground that he had been guilty or an offence against discipline. One of the grounds raised before the Privy Council was that the report of the board of inquiry, which was sent to the adjudicating officer, was not made available to the appellant until the fourth day of the trial before the High Court. The issue is, whether the hearing before the adjudicating officer was vitiated by him being furnished with that report, without the appellant being given the opportunity to contradict or correct the report. Lord Denning delivering judgment of the Privy Council said:
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If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must, be given a fair opportunity to correct or contradict them. This appears in all the cases from the celebrated judgment of Lord Loreburn LC in Board of Education v Rice down to the decision of Their Lordships' board in Ceylon University v Fernanda. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not enquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing. Instances which were cited to Their Lordships were Re Gregson, Rex v Bodmin Justices and Goold v Evans to which might be added Rex v Architects Registration Tribunal, and many others. Applying these principles Their Lordships are of opinion that Inspector Kanda was not in this case given a reasonable opportunity of being heard. They find themselves in agreement with the view expressed by Rigby J in these words:
The mistake of the police authorities was no doubt made entirely in good faith. It was quite proper to let the adjudicating officer have the statements of the witnesses. The regulations show that it is necessary for him to have them. He will then read those out in the presence of the accused. But Their Lordships do not think it was correct to let him have the report of the board of inquiry unless the accused also had it so as to be able to correct or contradict the statements in it to his prejudice. |
From the above authority, it is no answer to say that the evidence does not prejudice the appellant, as the court will not go into the likelihood of prejudice. As the Privy Council puts it, the risk of such a prejudice is enough to vitiate the proceedings. In the present case it is part of the agreed facts that the report from the house member was made available to all the members of the DC including the chairman but the same was not given to the appellant despite his request for the same to be made available to him. Thus following Rohana Ariffin, supra, and BSS Kanda v Government of the Federation of Malaya, supra, we hold that the DC had acted in breach of the principle of natural justice in refusing to supply the appellant with a copy of the report by Melvin Low.
In view of our findings above we feel that it is not necessary for us to consider me question whether the MC has the right under rule 35(e) to increase the penalty imposed on the appellant.
For the reasons indicated above we would allow this appeal and make an order in terms of prayers (a) and (c) of the statement of claim. We would also award costs to the appellant both here and in the court below. The deposit is to be refunded to the appellant.
The case is remitted to the Taiping High Court for assessment of damages before the learned senior assistant registrar.
Cases
Andhra Pradesh State Road Transport Corporation v Satvanaravan Transporters AIR 1965 SC 1303, SC; BSS Kanda v Government of the Federation of Malaya [1962] MLJ 169, PC; Chong Kah Lim v Yong Su Hian [1979] 2 MLJ 11, FC; Collins v Lane, Cornish and Worcester Norton Sports Club Ltd [2003] LLR 19; Florence Bailes v Dr Ng Jit Leong [1985] 1 MLJ 374, HC; Franklin v Minister of Town and Country Planning [1948] AC 87, HL; Lee v Showmen's Guild of Great Britain [1952] 1 All ER 1175, CA; Metropolitan Properties (FGC) Ltd v Lannon [1969] 1 QB 577, CA; Minolta Malaysia Sdn Bhd v Ng Siew Phang [1996] 3 AMR 3421, HC; R v Gough [1993] AC 646, HL; Rattan Lal Sharma v Managing Committee AIR 1993 SC 2155, SC; Rohana Ariffin v Universiti Sains Malaysia [1989] 1 MLJ 487, HC; Shrager v Basil Dighton Ltd [1924] 1 KB 274, CA; Singapore Amateur Athletics Association v Haron Mundir [1994] 1 SLR47, CA; Singh Kalpanath, Re [1992] 2 SLR 639, HC
Legislations
Universiti Sains Malaysia (Discipline Rules) 1979
Authors and other references
MP Jain, Treatise on Administrative Law, 1996 edn, vol 1
Representations
Appellant in person
Jacy Rani Paloosamy (Ong & Manecksha) for respondent
Notes:–
This decision is also reported at [2004] 6 AMR 608.
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