Kay Swee Pin v Singapore Island Country Club

JurisdictionSingapore
Judgment Date12 March 2008
Date12 March 2008
Docket NumberCivil Appeal No 46 of 2007
CourtCourt of Appeal (Singapore)
Kay Swee Pin
Plaintiff
and
Singapore Island Country Club
Defendant

[2008] SGCA 11

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 46 of 2007

Court of Appeal

Administrative Law–Disciplinary tribunals–Disciplinary committee primary finder of fact–General committee having ultimate decision-making power–Whether general committee entitled to direct disciplinary committee on finding of guilt–Administrative Law–Judicial review–Ambit–Principles relating to review of disciplinary proceedings of social club with valuable transferable membership–Administrative Law–Natural justice–Complainant making submissions to committee after disciplinary hearing–Member of disciplinary committee disqualifying himself from proceedings but participating in general committee decision-making–Whether breach of duty to act fairly

The appellant applied to be a member of the respondent club (“SICC”) in 1992 and in the application form declared one Ng Kong Yeam (“NKY”) as her spouse. Sometime in August 2005, when the appellant decided to stand for election as Lady Captain of the Lady Golfers' Sub-Committee against the incumbent Lady Captain, rumours surfaced concerning the appellant's marital status. This caused SICC to ask the appellant for a copy of her marriage certificate. The certificate furnished by the appellant showed that she had married NKY in Las Vegas in August 2005. Soon after, the husband of the incumbent Lady Captain (“JL”) e-mailed the general manager of SICC to ask the SICC to investigate the appellant's marital status. On the day of the election, the general manager of SICC told the appellant that JL had made a complaint against her and that if she persisted in running in the elections, there would be negative consequences if she were elected. The appellant ran in the elections but lost. The next month, the general committee of SICC (“the GC”) met and came to the conclusion that it appeared from the marriage certificate provided by the appellant that she had declared NKY as her spouse since 1992 when the marriage certificate showed that her marriage was registered in 2005. The GC then referred the matter to the disciplinary committee (“the DC”) and charged the appellant with “falsely declar [ing] [NKY] as [her] spouse”.

The DC heard the evidence of the witnesses and the appellant and recommended the charge be withdrawn because the appellant had married NKY by way of a customary marriage in Malaysia in 1982 and was divorced from her first husband by the time she applied to join SICC. The GC considered the DC's recommendation and disagreed with it. It asked the DC to re-deliberate on the basis that the appellant was not NKY's spouse because her first marriage had not been dissolved before her customary marriage to NKY. Notably, before the GC met, JL had e-mailed the GC arguing that the appellant was not validly married to NKY on the same basis. One Radakrishnan (“R”) had also participated in the GC's deliberations despite disqualifying himself from the DC. After re-deliberation, the DC reiterated its view that the appellant had no intention to cheat SICC but recommended she pay green fees for the times NKY had played golf at SICC. The GC considered the DC's second report and imposed an additional one-year suspension of the appellant's membership.

The appellant sought judicial review before the High Court but her application was dismissed. The appellant appealed on the basis that: (a) the GC was wrong to direct the DC's decision-making; (b) that there were breaches of natural justice because, inter alia, the appellant was not given an opportunity to respond to JL's e-mail, the DC failed to hear the appellant at its second meeting, and R ought not to have participated in the deliberations of the GC; and (c) the charge against her was inherently defective.

Held, allowing the appeal:

(1) The traditional approach of the courts to social clubs was to leave them to manage their own affairs as long as the rules of natural justice were complied with. However, the content of the duty to act in accordance with natural justice, nowadays considered as a duty to act fairly, varied with the circumstances of the case. Transferable membership in SICC had high social and economic value and because SICC's rules conferred very general and extensive disciplinary powers on the GC over SICC members, a more rigorous application of the rules of natural justice was called for: at [3] and [4], [6] to [10].

(2) The GC might only reject the findings of fact and the recommendations of the DC where it had sufficient reasons to do so. The essence of the charge was that the appellant had made an untrue statement to cheat or deceive SICC into allowing NKY to use its facilities. The GC failed to appreciate the appellant's explanations that she did not intend to cheat SICC and was instead fixated with the invalidity of her customary marriage to NKY: at [50], [53], [57]to [59].

(3) The GC had failed to act fairly. The GC's action in warning the appellant not to take part in elections before asking her for an explanation was evidence of prejudgment. Also, the appellant ought to have been given a copy of JL's e-mail so that she could respond to the allegation that her customary marriage was void or explain why it did not matter if that were the case. This was crucial because the DC had already concluded that the appellant did not make a false declaration and JL's e-mail planted in the GC's mind that the appellant's only defence was that of her customary marriage, which was illegal. Additionally, R's participation at the GC's meetings was procedurally improper after he had disqualified himself from the DC proceedings. R had further misrepresented the findings of the DC to the GC: at [71], [72], [77] and [78].

(4) The appellant's argument that the DC failed to hear her at its second meeting was irrelevant in the circumstances of the case because the DC had already accepted the appellant's defence and confirmed this in its second report: at [76].

(5) The charge against the appellant was inherently defective because she could not be charged for cheating SICC qua member when at the time she named NKY as her spouse in her application form she was not yet a member: at [81].

Lee v The Showmen's Guild of Great Britain [1952] 2 QB 329 (distd)

Peter Thomas Mahon v Air New Zealand Ltd [1984] AC 808 (refd)

Singapore Amateur Athletics Association v Haron bin Mundir [1993] 3 SLR (R) 407; [1994] 1 SLR 47 (distd)

Women's Charter (Cap 47,1970 Rev Ed)

Law Reform (Marriage and Divorce) Act 1976 (No 164 of 1976) (M'sia) s 4

S H Almenoar and Jeanne Wu (R Ramason & Almenoar) for the appellant

Ang Cheng Hock and Ramesh s/o Selvaraj (Allen & Gledhill LLP) for the respondent.

Chan Sek Keong CJ

(delivering the grounds of decision of the court):

Introduction

1 This is an appeal by Mdm Kay Swee Pin (“the appellant”) against the decision of the trial judge (“the Judge”) in Originating Summons No 2125 of 2006 in which he dismissed her application to set aside the decision of the respondent, Singapore Island Country Club (“SICC” or “the Club”), in suspending her from SICC membership for one year from 19 May 2006 to 18 May 2007 and for other reliefs (see [83] below). At the conclusion of the hearing before us, we allowed the appeal. We now give our full reasons for allowing the appeal.

Social clubs and natural justice

2 This appeal is concerned with the power of the court to review the exercise of the disciplinary powers by a recreational and social club which owns very substantial assets and which allows members to buy and sell its membership subject to approval by its governing body. The legal relationship between any club and its members lies in contract, and the rights of members are determined by the terms of the contract, which are found in the constitution or the rules of the club. The traditional approach of the courts to social clubs is to leave such clubs to manage their own affairs. However, where a club expels a member, it may only do so in compliance with the rules of natural justice. In the court below, the Judge, after referring toLee v The Showmen's Guild of Great Britain [1952] 2 QB 329 and the decision of this court in Singapore Amateur Athletics Association v Haron bin Mundir [1993] 3 SLR (R) 407, stated the established principles in his grounds of decision ( [2007] SGHC 166) at [30]:

In matters relating to disciplinary tribunals of clubs which are essentially social in nature, such as SICC, the court does not sit on appeal from their decisions. The court's role is to ensure that the rules of natural justice have been complied with and that the disciplinary procedure set out in the club's rules has been observed.

3 Before us, counsel for SICC contended that in accordance with established principles, this court should not interfere with the decision of the general committee of the Club (“the GC”) to suspend the appellant from membership of the Club so long as the GC had observed the rules of natural justice. He contended that the courts had no power to determine whether the GC's decision was fair or whether the GC had come to a wrong conclusion on the facts. The GC was not sitting in judgment over matters of a trade or profession affecting an individual's economic or property rights. What was at issue here, he pointed out, was merely the temporary cessation of the enjoyment of the privileges of a social club. He contended that the GC had not breached any of the rules of natural justice in the process of finding the appellant guilty of the charge against her (“the Charge”), viz, that of falsely declaring one Ng Kong Yeam (“NKY”) as her spouse when she applied to become a member in 1992 so as to enable him to use the Club's facilities.

4 We, however, pointed out to counsel that this case did not involve simply the suspension of a member from the Club. It was pertinent...

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