Khong Kin Hoong Lawrence v Singapore Polo Club

• Judgment Date: 21 April 2014
• Date: 21 April 2014
• Docket Number: Originating Summons No 743 of 2013
• Court: High Court (Singapore)

Khong Kin Hoong Lawrence

Plaintiff

and

Singapore Polo Club

Defendant

[2014] SGHC 82

Tan Siong Thye JC

Originating Summons No 743 of 2013

High Court

Administrative Law—Disciplinary tribunals—Disciplinary powers of defendant social club—Whether defendant's constitution allowed defendant to discipline plaintiff

Administrative Law—Natural justice—Duplicity—Applicability of duplicity rules to disciplinary proceedings of social clubs

Administrative Law—Natural justice—Plaintiff not notified of charge he was disciplined for—Whether audi alteram partem rule breached

Administrative Law—Natural justice—Whether entire disciplinary tribunal tainted by apparent bias—Whether principle of necessity could apply to prevent disqualification due to apparent bias

The plaintiff (‘the Plaintiff’) was at all material times a member of the defendant social club (‘the Defendant’). He had his membership in the Defendant suspended for two months pursuant to the decision of a disciplinary tribunal which was composed of five committee members of the Defendant. The disciplinary tribunal found that the Plaintiff had acted in a manner prejudicial to the interests of the Defendant by disseminating a statement to all members of the Defendant via the Defendant's e-blast system without permission from the committee. The statement itself questioned the propriety of the committee members' decision to amend the results of a motion of no confidence which they were the subject matter of. The Plaintiff then applied for the decision of the disciplinary tribunal to be set aside.

The Plaintiff's claim for relief rested on the following grounds: (a) that the entire disciplinary tribunal was apparently biased because the statement he disseminated had questioned the conduct of all of the members of the disciplinary tribunal; (b) that the charges made against him were duplicitous; (c) that the decision to suspend his membership was ultra vires the Defendant's constitution (‘Constitution’); and (d) that he was not informed of all the charges that he was eventually found guilty of and punished for.

Held, granting the application for a setting-aside order:

(1) All five committee members who formed the disciplinary tribunal were implicated by the motion of no confidence which was seconded by the Plaintiff. They all had a strong vested interest in seeing the motion of no confidence defeated. The content of the statement, which was relevant to the subject matter of the disciplinary proceedings, put this interest at stake by questioning the propriety of the amendment of the results of the motion of no confidence. The five committee members who formed the disciplinary tribunal therefore had an interest in disciplinary proceedings against the Plaintiff. A fair-minded and informed observer would therefore have concluded that all five of them had a vested interest in the determination to be made at the conclusion of the disciplinary proceedings. This in turn would give rise to legitimate doubt in the impartiality of the tribunal from the perspective of an observer. Consequently, all five committee members that formed the disciplinary tribunal were tainted by apparent bias: at [36] and [41] .

(2) The principle of necessity allowed a person subject to disqualification at common law to still decide the matter if there was no competent alternative forum to hear the matter or if a quorum could not be formed without him. There were other options available to the Defendant to convene a fully or partially untainted disciplinary body without contravening the provisions of the Defendant's Constitution. The Defendant also did not take any measures to try to alleviate such apparent bias. The constitution of a tribunal entirely tainted by apparent bias in this case was therefore improper: at [42] and [52] .

(3) For a private disciplinary tribunal, it might not be necessary to apply the duplicity rule for criminal cases in its full force. This was subject to the qualification that the rule of fairness was not breached and the party answering to the charge or charges was not prejudiced. The main question was whether the Plaintiff was prejudiced to the extent that he was unable to adequately answer to the charges against him. In this case, even though the Defendant could have furnished more details, there was no evidence that the Plaintiff was unable to understand the allegations or charges given that he possessed sufficient knowledge of the events surrounding them: at [54] to [56] .

(4) The Plaintiff was acting only in his capacity as honorary secretary of the Defendant when he disseminated the statement. Since the Defendant's Constitution did not provide for disciplinary proceedings to be conducted against a committee member such as the honorary secretary, the decision of the disciplinary tribunal to discipline the Plaintiff for the dissemination of the statement could not stand as it was ultra vires the Defendant's Constitution: at [59] to [60] .

(5) In a letter requesting the Plaintiff to attend before the disciplinary tribunal, he was only asked to explain his conduct in relation to his dissemination of the statement to the Defendant's members via the e-blast system. The letter did not contain a corresponding charge vis-à-vis an additional finding preferred to the Plaintiff when the Defendant served a notice of suspension on the Plaintiff after the disciplinary tribunal had made its findings. Hence, the Plaintiff was entirely unaware of the need to answer to the additional finding and the audi alteram partem rule was breached: at [64] .

Anwar Siraj v Tang I Fang [1981-1982] SLR (R) 391; [1982-1983] SLR 242 (refd)

Datuk T P Murugasu v Wong Hung Nung [1988] 1 MLJ 291 (refd)

Fadzil bin Mohamed Noor v Universiti Teknologi Malaysia [1981] 2 MLJ 196 (refd)

Haron bin Mundir v Singapore Amateur Athletic Association [1991] 2 SLR (R) 494; [1992] 1 SLR 18 (refd)

Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 (refd)

Kay Swee Pin v Singapore Island Country Club [2008] 2 SLR (R) 802; [2008] 2 SLR 802 (refd)

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 (refd)

Lim Mey Lee Susan v Singapore Medical Council [2011] 4 SLR 156 (refd)

Mitchell v Royal New South Wales Canine Council Ltd (2001) 52 NSWLR 242 (refd)

R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119 (refd)

R v West Midlands and North West Mental Health Review Tribunal [2004] EWCACiv 311 (refd)

Shankar Alan s/o Anant Kulkarni, Re [2007] 1 SLR (R) 85; [2007] 1 SLR 85 (refd)

Stansfield Group Pte Ltd, The v Consumers' Association of Singapore [2011] 4 SLR 130 (refd)

Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board [2005] 4 SLR (R) 604; [2005] 4 SLR 604 (refd)

Tang Liang Hong v Lee Kuan Yew [1997] 3 SLR (R) 576; [1998] 1 SLR 97 (refd)

Webb v R (1993-1994) 181 CLR 41 (refd)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 132

Daniel Goh, Adrian Wee, Noel Oehlers and Yang Sue Jen (Characterist LLC) for theplaintiff

Devinder Kumar s/o Ram Sakal Rai and Adrian Teo (Acies Law Corporation) for thedefendant

.

Tan Siong Thye JC

Introduction

1 The plaintiff (‘the Plaintiff’) sought to set aside the finding by five committee members of the defendant (‘the Defendant’) in a disciplinary committee meeting that the Plaintiff had acted in a manner prejudicial to the interests of the Defendant. The Plaintiff also sought to set aside the decision to suspend his membership in the Defendant for a period of two months pursuant to the finding by the five committee members. The Plaintiff argued, inter alia,that the five committee members were tainted by apparent bias. I allowed the Plaintiff's application. The Defendant is dissatisfied with the decision and has filed a notice of appeal. I now provide the reasons for my decision as follows.

The Defendant

2 The Defendant is the Singapore Polo Club. It is an unincorporated association established to provide social and recreational facilities. It organises the playing of polo in Singapore and elsewhere. The Defendant is managed by a committee, consisting of a president, a vice-president, a polo captain, an honorary secretary, an honorary treasurer and four other members. This is stipulated under r 30 (a) of the Defendant's constitution (‘the Constitution’). Two additional members may be co-opted into the committee pursuant to r 31 (1) (h) of the Constitution.

The Plaintiff

3 The Plaintiff was at all material times a charter polo playing member of the Defendant. He was elected into the committee of the Defendant pursuant to an annual general meeting (‘AGM’) of the members of the Defendant on 26 March 2013 (‘the 2013 Committee’). He was to serve as honorary secretary until the next AGM in 2014.

Background

Voting rights of the members of the Defendant

4 The background of this case concerned the counting of votes for the motion of no confidence resolution (‘the No Confidence Resolution’) against the 2012 committee (‘the 2012 Committee’). Hence it is useful to set out the various voting rights of the different categories of members of the Defendant. Under r 38 of the Constitution the voting rights also differ depending on the subject matter of the resolution to be voted upon. For the purposes of this case, it suffices to note that under r 38 of the Constitution, with regard to certain resolutions that deal with subject matters that fall under the areas listed in rr 38 (a) -38 (f), charter polo playing members like the Plaintiff are given ten votes while most of the other types of members have only one vote.

Vote of no confidence against the 2012 Committee

5 On 26 March 2013 the AGM elected the 2013 Committee. The 2013 Committee comprised of six re-elected members from the 2012 Committee. The composition of the 2012 and 2013 Committees are as follows (members of both the 2012 and 2013 Committees are in italics):

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