Case Note: NATURAL JUSTICE: A CASE FOR UNIFORM RIGOUR

• Citation: (2008) 20 SAcLJ 820
• Published date: 01 December 2008
• Author: CHEN Siyuan LLB (Hons) (National University of Singapore); Justices’ Law Clerk & Assistant Registrar, Supreme Court of Singapore Lionel LEO LLB (Hons) (National University of Singapore); Justices’ Law Clerk & Assistant Registrar, Supreme Court of Singapore
• Date: 01 December 2008

Ho Paul v Singapore Medical Council [2008] 2 SLR 780

Kay Swee Pin v Singapore Island Country Club [2008] 2 SLR 802

This note considers if there is a discernible framework in which courts resolve alleged claims of breaches of natural justice. On the one hand, once it has been ascertained that the rules of natural justice apply, the court will look at all the circumstances of the case to determine if there has been any unfairness. On the other hand, it has been suggested that even assuming the rules of natural justice apply, there can be varying degrees of rigour in which they are enforced, a sliding scale of sorts.

I. Introduction

1 Natural justice is often described as a concept that is “highly flexible” and dependent on the facts of each case.1 Indeed, what constitutes a fair hearing presided by an impartial tribunal — said to be the “irreducible core” of natural justice2— does not lend itself to an endeavour of preconceiving all the factual permutations. However, the authors of this note would suggest that on the jurisprudence presented,

the methodology or analytical framework in which courts resolve alleged breaches of natural justice might be said to be broken down into two parts (let us call this our suggested approach): (a) first, the threshold question of whether the rules of natural justice should even apply to a given situation must be satisfied. In that connection, the House of Lords decision in Ridge v Baldwin has identified four categorical situations, which are based on the type of rights that are at stake;3 (b) the court would next consider the entire factual matrix of the case and determine if any well-established tenets of fairness (ie, first principles) have been breached (eg, the rule against pre-judgment of guilt). Where necessary, the court refers to more specific categorical precedents (eg, whether there is a right to cross-examination). That said, there exists a somewhat countervailing view that the rules of natural justice should be applied with more rigour in certain contexts, and less so in others. This notion seems self-contradictory, and (as shall be demonstrated) is superfluous in view of the threshold question Ridge v Baldwin presents. This note, therefore, considers two recent cases whereby the foregoing contrasting viewpoints are examined.

2 The first, Ho Paul v Singapore Medical Council (“Ho Paul”),4 involved issues of expanding the role of a tribunal when a doctor facing disciplinary sanctions did not avail himself of counsel. The second, Kay Swee Pin v Singapore Island Country Club (“Kay Swee Pin”),5 involved reviewing the suspension of a member from a premier country club, of which the impartiality of the disciplinary process therein was alleged to be tainted by club politics. In both cases, much was at stake: the livelihood of a professional, and the suspension of an expensively-acquired membership. The applicability of the rules of natural justice in either instance was thus not in issue. But when these two cases are examined in juxtaposition, we are left to ask if they have posited reconcilable approaches in resolving questions of natural justice. Specifically, Kay Swee Pin endorses the (by no means unprecedented) view that natural justice can be enforced more (or less) rigorously in certain situations. On the other hand, Ho Paul, while a decision of considerable brevity, is seemingly more compatible with the suggested approach.

II. Ho Paul

3 Dr Ho had been found guilty of professional misconduct by the Singapore Medical Council and he was censured, fined $1,000 and suspended for three months.6 He chose to appear in person before the Council’s Disciplinary Committee (“DC”) and conducted his own defence. One of the questions raised on appeal was whether natural justice was breached because: (a) Dr Ho had declined to cross-examine the Council’s key witness (“Dr Tan”) but the DC failed to warn Dr Ho of the “legal implications” of this; and (b) the DC had failed to ensure that Dr Ho appreciated the importance of making a mitigation plea.7 The court’s reply, encapsulated in [13] of its judgment, reflected a consideration of both first principles and the surrounding facts of the case:

Additional duties are not foisted on a tribunal merely because the individual is unrepresented — advising a person who has been charged of his litigation strategies and options is the duty of an advocate and solicitor, not the adjudicator. This is quite apart from the general premise that tribunals are masters of their own procedures. Where breaches of the rules of natural justice are alleged, the key question lies in asking whether the individual concerned was given the opportunity to present his case and whether he suffered any prejudice as a result of any unfairness in the conduct of the proceedings … Dr Ho had been given the opportunity to present his case and cross-examine the witnesses, and had also been invited to make a mitigation plea. There was simply no basis to suggest that fairness had been compromised.

4 In effect, Dr Ho had argued that he was entitled to a higher standard of natural justice because he was not legally represented. Let us attempt to expound on the court’s reasoning as to why it rejected this argument.

A. The legal implications of failing to cross-examine

5 To be sure, the issue is not whether doctors have a right to legal representation before the DC. Notwithstanding s 43(3) of the Medical Registration Act8 (“[t]he registered medical practitioner may appear in person or be represented by counsel”), there is sufficient case law to suggest that Dr Ho was entitled to argue that he had a right to counsel.9 Yet, the question as to whether the DC’s failure to warn him of the “legal implications” of not cross-examining Dr Tan amounted to a procedural

irregularity is very much linked to the underlying principles of the right to counsel. As has been written: “often a party cannot effectively exercise his right to cross-examination unless he is represented by a lawyer”10— the corollary then, is that extending the right of cross-examination to an unrepresented party may not suffice. Lord Denning’s remarks in Pett v Greyhound Racing Association Ltd are equally apposite:

It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weaknesses in the other side. He may be tongue-tied or nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A magistrate says to a man: “You can ask any questions you like”; whereupon the man immediately starts to make a speech.11

6 Likewise, it was stated in Bushell v Secretary of State for the Environment that “there is a massive body of accepted decisions establishing that natural justice requires that a party be given an opportunity of challenging by cross-examination witnesses called by other parties on relevant issues”.12 It therefore stands to reason that a proper hearing includes a fair opportunity for the individual to correct anything prejudicial to his view, especially if the opposing party has had the opportunity of cross-examination.13 Conversely, from a more pragmatic standpoint, it can be said that the true question in every case is whether the absence of cross-examination renders the decision unfair in all the circumstances.14 This might explain in part why the court in Ho Paul emphasised that they detected no prejudice suffered by the appellant. Of course, one notices that first, Dr Ho chose, entirely of his own volition, not to avail himself of legal representation. Secondly, the DC did give Dr Ho the opportunity to present his case and cross-examine the witnesses. A legal assessor —“an advocate and solicitor of not less than 10 years standing”— would also have been present during the inquiry,15 and he would have helped ensure a fair hearing. It is noteworthy that per s 43(4) (see also s 43(1)) of the Medical Registration Act, the DC was not bound by any written laws relating to evidence. This supports the notion that tribunals, regardless of form, are always masters of their own procedure, and they possess the discretion

as to whether certain privileges should be extended.16 It is not being suggested, however, that s 43(4) reflects a legislative intent to circumscribe a fair hearing; rather, the argument that the DC had a duty to warn Dr Ho is also, at bottom, predicated on the presupposition that Dr Ho had an absolute right to cross-examination. Such a presupposition does not comport with the preponderance of local and English authorities.17 By most accepted accounts, there is tremendous value in cross-examination (it being a cornerstone of litigation),18 but it is one thing to say that Dr Ho was deprived of his right to cross-examination, and an even bolder thing to say that he should have been warned of the legal consequences of not proceeding with cross-examination.

7 Then there is the imperative question of the roles and functions of a tribunal, which is probably the logically prior question. For these purposes, a useful analogy — and an example of the universal applicability of first principles — is found in Rajeevan Edakalavan v PP.19 There, the accused had appeared in person before the Magistrate and entered a plea of guilt. However, he then petitioned for criminal revision, arguing that as the Magistrate had not informed him of the defences available to him, his plea was equivocal. The court refuted this argument in the strongest terms at [22]:20

It is not the duty of the judge to inform the accused of the defences or other options that may be open to him and advantageous to his case. That is the duty of the counsel … The onus does not shift to the judge (or the prosecution, for that matter) simply because the accused is unrepresented. That will be placing too onerous a burden on the judge. Furthermore, the judge will be performing two completely...