Kok Seng Chong v Bukit Turf Club and Another

• Jurisdiction: Singapore
• Judge: Michael Hwang JC
• Judgment Date: 09 December 1992
• Neutral Citation: [1992] SGHC 305
• Docket Number: Originating Summons No 805 of 1992 (Summons in Chambers No 5720 of 1992)
• Date: 09 December 1992
• Published date: 19 September 2003
• Year: 1992
• Plaintiff Counsel: Harry Wee (with Tan Kay Bin)(Tan Kay Bin & Co)
• Citation: [1992] SGHC 305
• Defendant Counsel: Harry Elias (with Subramaniam Pillai)(Harry Elias & Partners)
• Court: High Court (Singapore)
• Subject Matter: Application to discharge,Conceptual basis for right,Principles of review the tribunal's exercise of discretion,Application to discharge interim injunction,Friendly societies,Considerations,Sanction imposed for material non-disclosure,Relevance of provision excluding representation,Balance of convenience in favour of continuing injunction,Validity,Injunctions,Discretion of court to continue injunction or to grant fresh injunction,Factors to be considered by tribunal,Right to legal representation before domestic tribunal,Grounds for challenge,Whether ultra vires rules of association or contrary to public policy,Rule providing for absolute liability,Civil Procedure,Ex parte interim injunction,Innocent nature of non-disclosure,Balance of convenience,Definition of materiality,Disciplinary tribunals,Non-disclosure of material facts,Discretion of tribunal,Rules,Dismissal of application for injunction would result in determining the main issue to be tried,Administrative Law,Unincorporated Associations and Trade Unions

On 9 August 1992, a racehorse called `Giltedged III` won a race at the Bukit Turf Club. Blood and urine samples were taken from the horse after the race. On the basis of the analysts` report on the urine test the first defendant decided to hold an inquiry, and on 21 August 1992 it sent a letter to the plaintiff, who was the trainer of `Giltedged III`, asking him to attend the inquiry on 27 August 1992. The plaintiff asked for a copy of the analysts` report, but this was not furnished at that time. On 22 August 1992, The Straits Times reported that a prohibited drug, etorphine, had been found in the urine sample. The plaintiff requested that he be allowed legal representation at the inquiry on 27 August 1992, but this request was denied. The plaintiff believed that he would be charged for an offence under r 203(b) of the second defendants` Rules of Racing, which govern all race meetings organized by the first defendant. On 27 August 1992, he filed this originating summons seeking:

(a) an injunction to restrain the two defendants from holding any inquiry against him into the analysts` report;

(b) a declaration that he be entitled to be represented by counsel at the hearing of the preliminary or other inquiry against him; and

(c) a declaration that r 203(b) of the second defendants` Rules of Racing is void against the rules of natural justice or against public policy (or both).

The plaintiff also filed an ex parte summons-in-chambers on 27 August 1992 seeking an interim injunction (which he duly obtained on the same day) preventing the two defendants from calling, convening or proceeding with any preliminary or other inquiry against the plaintiff into the analysts` report regarding the post-race urine test taken from `Giltedged III`.

On 15 September 1992, the two defendants applied for an order to discharge the interim injunction and this application was heard before me on 1 October 1992. At the end of the hearing, I requested clarification of certain matters from the parties and further affidavits were filed, the last on 22 October 1992.

After reading the affidavits and hearing the arguments, I discharged the original injunction on 29 October 1992, but granted a fresh interlocutory injunction in the following terms:

The defendants, whether by themselves or their servants or agents be restrained until further order or until after the hearing of this summons from calling, convening or proceeding with any inquiry against the plaintiff under the second defendant`s Rules of Racing into the analysts` report regarding the post-race urine test taken from `Giltedged III` which ran in race 4 on the fourth day (9 August 1992) of the Singapore August (Raffles Cup) Meeting `92, unless the plaintiff is allowed to appear and to be represented by counsel at any such inquiry provided that this injunction shall not apply to the holding of any investigation by the stipendiary stewards under the second defendant`s regulation entitled `Horses which fail to Pass Urine or Blood Test` made on 14 August 1984.

The defendants now appeal against my decision.

When the plaintiff applied for his ex parte injunction, he had three complaints:

(a) the failure to furnish him with a copy of the analysts` report;

(b) the refusal to allow him legal representation at the proposed inquiry; and

(c) his contention that r 203(b) was void.

At the commencement of the hearing, I was informed that a copy of the analysts` report had recently been furnished to the plaintiff, so the only substantive matters in issue before me were the right to legal representation and the validity of r 203(b).

Since I had to consider the matter on the basis of interlocutory injunctive relief, I had to apply the principles laid down in American Cyanamid Co v Ethicon Ltd .1

The first question to determine was whether or not there was a serious question to be tried. As there were two separate legal issues, I considered them separately.

Is there a right to legal representation before a domestic tribunal?

This is a controversial question, to which different countries have provided different answers.

Position in England

In University of Ceylon v Fernando [1960] 1 WLR 223[1960] 1 All ER 631 a student of the University of Ceylon was accused of cheating in his examinations. A commission of inquiry headed by the Vice-Chancellor investigated the allegation and found that it had been proved. This report eventually led to the student`s suspension. He then sued for a declaration that the finding of the commission of inquiry was contrary to the principles of natural justice. Among his grounds of complaint, he contended that the evidence of the various witnesses, including that of the person who had made the allegation, was taken in his absence, and he was not aware of the evidence led against him or of the case he had to meet. However, he was questioned about the allegation by the commission. When this matter reached the Privy Council, the Judicial Committee held that the Vice-Chancellor was not bound to treat the matter as a trial, but could obtain information in any way he thought best, and it was open to him, if he thought fit, to question witnesses without inviting the student to be present, but a fair opportunity must be given to the student to correct or contradict any relevant statement to his prejudice. On the facts of this case, this requirement had been complied with. The student had, by a letter from the Vice-Chancellor and at interviews with the commission of inquiry, been adequately informed of the case he had to meet. At the interviews he had also been given an adequate opportunity of meeting the case alleged against him. The Board went on to say (per Lord Jenkins at pp 235-236):

Their Lordships are, therefore, satisfied that the interviews, so far as they went, were fairly conducted and gave the plaintiff an adequate opportunity of stating his case. But it remains to consider whether, in the course they took, the interviews must be held to have fallen short of the requirements of natural justice on the ground that the plaintiff was given no opportunity of questioning Miss Balasingham. She was the one essential witness against the plaintiff and the charge in the end resolved itself into a matter of her word against his. In their Lordships` view this might have been a more formidable objection if the plaintiff had asked to be allowed to question Miss Balasingham and his request had been refused. But he never made any such request, although he had ample time to consider his position in the period of ten days or so between the two interviews. There is no ground for supposing that, if the plaintiff had made such a request, it would not have been granted. It, therefore, appears to their Lordships that the only complaint which could be made against the commission on this score was that they failed to volunteer the suggestion that the plaintiff might wish to question Miss Balasingham, or, in other words, to tender her unasked for cross-examination by the plaintiff. Their Lordships cannot regard this omission, or a fortiori the like omission with respect to other witnesses, as sufficient to invalidate the proceedings of the commission as failing to comply with the requirements of natural justice in the circumstances of the present case.

...

The plaintiff might have fared better if the charge against him had been tried in accordance with the more meticulous procedure of a court of law, which would have included as of course the tendering of Miss Balasingham for cross-examination. But that is not the question. The question is whether, on the facts and in the circumstances of this particular case, the mode of procedure adopted by the Vice-Chancellor, in bona fide exercise of the wide discretion as to procedure reposed in him under cl 8, sufficiently complied with the requirements of natural justice. In their Lordships` opinion, it has not been shown to have fallen short of those requirements. (Emphasis added.)

This case may not appear to be immediately relevant since it is neither an English case nor does it deal with the right to legal representation. It has, however, been regarded by later cases as having a bearing on the issue of legal representation, and I will discuss its significance later.

In Pett v Greyhound Racing Association Ltd (No 1)

,3 the Court of Appeal granted an interlocutory injunction to a greyhound trainer, who was the subject of a disciplinary inquiry into the alleged doping of his dog, restraining the inquiry from being held unless the trainer was allowed to have legal representation. The Court of Appeal held that, where an inquiry dealt with matters which affected a man`s reputation or livelihood, he should be entitled to legal representation. The court upheld this right both by reference to the principles of natural justice as well as the common law right of a person to do by agent or representative (including counsel) that which under the relevant procedure he was entitled to do, namely, question witnesses and address the tribunal. One of the main authorities relied on for the agency analysis was R v Assessment Committee of St Mary Abbotts, Kensington ,4 a case which will be referred to again later in this judgment. However, when the main action, Pett v Greyhound Racing Association Ltd (No 2) ,5 came on for hearing, the trial judge (Lyell J) decided that the remarks of the Court of Appeal had been made obiter, and that the plaintiff was not entitled to legal representation at the inquiry. He considered that the dicta of the Court of Appeal were irreconcilable with the decision of the Privy Council in University of Ceylon v Fernando 2 (which was not cited in Pett (No 1) 3), and preferred the reasoning of the Privy Council. An appeal was filed against Lyell J`s decision, but, before the appeal was heard, the relevant rules were changed so as to allow the plaintiff the right...