Ling How Doong v Attorney General

• Judge: A V Winslow J
• Judgment Date: 18 September 1968
• Neutral Citation: [1968] SGHC 24
• Citation: [1968] SGHC 24
• Defendant Counsel: Ho Thian Cheh (Attorney General's Chambers)
• Published date: 19 September 2003
• Date: 18 September 1968
• Docket Number: Suit No 275 of 1967
• Court: High Court (Singapore)
• Plaintiff Counsel: JB Jeyaretnam (JB Jeyaretnam & Co)

Four charges in respect of breaches of discipline under s 27 of the Police Force Ordinance 1958 (the Ordinance) were preferred on 14 June 1965 against the plaintiff, an inspector attached to the Special Branch, and the then acting Commissioner of Police, Singapore Component, Royal Malaysian Police appointed a board to conduct a disciplinary enquiry there into in accordance with reg 8 of the Police Regulations 1959 which were made under the Police Force Ordinance 1958 (No 32 of 1958). No objection was taken to the composition of the Disciplinary Board and the board proceeded to hold the enquiry on 4 August 1965 and eventually concluded it on 6 September 1965 with a report that the plaintiff was guilty on two of these charges (as amended in the course of the proceedings) as follows:

1 You, Insp Ling How Doong, are charged that you on 26 March 1965, at about 5.45pm - opposite No 275 Balestier Road, Singapore, did commit an offence of excess of duty resulting in injury to two persons, namely, Tan Gheen Hoe and Ng Kheng Chuan by unjustifiably ordering Sgt 703 Bahari bin Haji Mohd Dom of `Radio` Division, to take into custody the said Tan Gheen Hoe and Ng Kheng Chuan, an offence under s 27(1)(k) of the Police Force Ordinance, No 32 of 1958 and punishable under s 28(1) of the Police Force Ordinance, No 32 of 1958.

(2) You, Insp Ling How Doong, are charged that you on 26 March 1965 did commit an offence of neglect of orders by failing to enter details of all your movements throughout the 24 hours in your personal diary in accordance with Police General Order 205, an offence under s 27(1)(h) of the Police Force Ordinance, No 32 of 1958, and punishable under s 28(1) of the Police Force Ordinance, No 32 of 1958.

On 14 September 1965, the Commissioner of Police informed the plaintiff that the board had found him guilty on these two charges and that he had accepted the said findings and decided to award him punishment as follows:

First charge - fine of $50

Second charge - reprimand.

It should be observed that, so far as this enquiry is concerned, no complaint is made that the plaintiff had not been given a reasonable opportunity of being heard. He had also been represented by an Assistant Superintendent of Police as `counsel` for his defence. Being dissatisfied with his convictions, he appealed against the same and the consequential punishments imposed. This appeal was finally determined by the Public Service Commission which after consideration of his appeal, decided that he should be dismissed from the service with effect from 24 February 1966.

The plaintiff took out a writ on 21 February 1967 with a claim for a `declaration in respect of his purported dismissal from the Singapore Police Force and for damages arising therefrom.` His statement of claim which was also delivered on the same day was amended from time to time until 19 February 1968, and so was the defence until 20 February 1968. There were also a few further amendments during the trial.

The hearing commenced before me on 30 October 1967 and concluded on 16 May 1968, having been part-heard from time to time. I reserved judgment, among other reasons, to await the Federal Court`s decision, in another case affecting a police officer, which I considered might be useful in regard to some of the contentions raised on behalf of the plaintiff, though the issues involved were, by no means, the same. That judgment was delivered on 10 August 1968 in the case of Wong Keng Sam & Ors v Pritam Singh Brar [1965-1968] SLR 316 (FC) to which I shall have cause to refer later.

Counsel for the plaintiff, Mr JB Jeyaretnam, opened his case by stating that the court had jurisdiction to make declarations on the validity of proceedings of statutory tribunals. He then submitted that there were four issues for me to consider, viz:

I That the board had no power to amend the charges;

II that the board acted on no or no sufficient evidence or acted contrary to the evidence before it and was therefore wrong in law;

III that the appeal against the commissioner`s award should have been preferred to the President and not to the Public Service Commission; and

IV that, if the Public Service Commission did have to hear the appeal, it had no power to enter punishment awarded by the Commissioner of Police.

With regard to issue I, I am of the opinion that the board did have power to amend charges at the inclusion of the case for the `prosecution`. Regulation 8 of the Police Regulations 1959 empowers the board to hear and record all the evidence for the prosecution in accordance with the procedure laid down in reg 7. Regulation 7 provides that the charge may be amended or added to at any time before the finding and provides the usual safeguards in the interests of the officer concerned such as are to be found in the Criminal Procedure Code.

I do not, however, subscribe to the view that the reference to `hearing` and `recording` of evidence limits the powers of the board, in any way, and converts it into a mere transcribing machine which has only to keep its ears open during the enquiry. I am satisfied that the board complied with the safeguards provided in reg 7 and that the plaintiff was afforded an opportunity of pleading anew to the amended charges and was offered every opportunity of recalling prosecution witnesses for cross-examination.

It seems to me therefore futile to hold that the board acted without or in excess of jurisdiction on this ground. Even if I am wrong in this, I am fortified in my conclusion by the judgment of the Federal Court, to which I have referred earlier, which held, perWee Chong Jin CJ, with whom the other members of the court agreed, that although the Public Service (Disciplinary Proceedings) (Procedure) Rules 1964 have statutory force:

it does not follow that any particular rule or sub- rule, if breached or not complied with, will have the effect of giving a legal right to a person aggrieved thereby to redress in a court of law. The law is clear that those of the rules in the 1964 Rules which are made for the purpose of carrying out the object of art 135(2) of the Constitution of Malaysia are mandatory (see State of UP v Babu RamAIR1961 SC 751 where five judges of the Supreme Courts of India were unanimously of the view that statutory rules made for the purpose of carrying out the object of art 311 (2) of the Indian Constitution which is similar in effect to our art 135(2) are mandatory). In my opinion any rule or sub-rule in the 1964 Rules which cannot on its true construction, be said to be made for the purpose of carrying out the object of art 135(2) are not mandatory but are merely directory as being purely procedural rules. In my opinion any breach or non-compliance with any such purely procedural rule or sub-rule does not give a person aggrieved thereby a legal right to redress in a court of law.

Similarly, in the present case, there is no doubt that the Police Regulations, 1959 have statutory force. The question, however, arises whether reg 8 was made for the purpose of carrying out the object of art 135(2) of the Constitution of Malaysia which reads as follows:

No member of such a service as aforesaid shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard.

The police force is such a service but no complaint has been made to this court, either in argument or by the pleadings, that there has been any contravention of art 135(2). A point also arises as to whether these regulations which were made prior to Malaysia, whose advent was heralded by the Constitution of Malaysia on 16 September 1963 can be said to have been made for the purpose of carrying out the object of art 135(2). Obviously they were not. Nor do I think that reg 8, since it still continues to apply, can be said to carry out its object in any way. I am therefore of the view that, even if the power to amend charges given by reg 7 has no application to the powers contained in reg 8 and even if the expression `hearing and recording evidence` must be given its literal meaning, notwithstanding its absurdity or repugnance to commonsense, reg 8 is purely directory or procedural and not mandatory in the sense that a breach or disregard would give a legal right to redress in a court of law.

With regard to issue II, all I think that I need say is that it assumes that the court should be acting in an appellate capacity and not in exercise of its supervisory jurisdiction in relation to the findings of the board. It is furthermore not entirely free from doubt whether this court has jurisdiction to exercise even supervisory powers, having regard to the fact that the board although it has some of the attributes of a quasi-judicial body, does not have legal authority to make a binding decision determining questions affecting the rights of subjects: R v Electricity Commissioners [1924] 1 KB 171 CA. It is more in the nature of a body which, although it makes a finding, has no authority to impose that finding as a binding...