Re Singh Kalpanath

• Court: High Court (Singapore)
• Judgment Date: 17 March 1992
• Docket Number: Originating Motion No 44 of 1990
• Date: 17 March 1992

Re Singh Kalpanath

[1992] SGHC 64

Chan Sek Keong J

Originating Motion No 44 of 1990

High Court

Administrative Law–Judicial review–General rule against cross-examination–Truth of witnesses' accounts central to party's defence–Whether justice of the case required exception to be made for cross-examination to be allowed–Difference between “show cause” proceedings and judicial review proceedings–Whether having right to show cause precludes applicant from applying for judicial review where bias alleged–Forms of bias–Test for bias–Order 53 The Rules of the Supreme Court 1970–Sections 80 and 87 Legal Profession Act (Cap 161, 1985 Rev Ed)–Civil Procedure–Costs–Application for certiorari–Applicant failed to prove main charge of actual bias but succeeded on much less serious charge–Each party to bear own costs–Legal Profession–Disciplinary procedures–Disciplinary Committee–Chairman–Chairman met with material witness and questioned or threatened witness in absence of counsel–Whether bias established

The respondent (“CS”) was the chairman of the Disciplinary Committee of the Law Society (“the DC”) that had determined that cause of sufficient gravity existed for disciplinary action against the applicant under the Legal Profession Act (Cap 161, 1985 Rev Ed). SS, a material witness for the applicant, allegedly had two conversations with CS during the period when the disciplinary proceedings were still in progress. The applicant obtained an ex parte order by originating motion for leave to apply for an order of certiorari to quash the DC's findings and determination and for a stay of further proceedings. The applicant alleged (a) that CS showed bias, or apparent bias, in that he threatened or warned SS before SS had given evidence; (b) that CS indicated that he had made his mind up about the veracity of the witness before that witness had given evidence, and before hearing closing submissions on behalf of the applicant at the DC hearing; (c) that CS questioned a material witness about his veracity and motives as a witness other than during the hearing and in the presence of the applicant herein and his counsel. The applicant further alleged that the whole DC was tainted with the bias, or apparent bias, of CS.

At the commencement of the application for certiorari, CS made two preliminary objections: (a) the applicant was not entitled to rely on statements made in CS's affidavits as additional grounds in support of his case as these were new grounds which took CS by surprise, but must amend his originating motion to include the new matters; and (b) the applicant ought not to be permitted to cross-examine CS on his affidavits. A further preliminary point was raised relating to whether the decision of the DC was subject to judicial review. The applicant also sought costs from CS and the Law Society.

Held, allowing the application:

(1) No amendment to the notice of motion was required. If CS's own admissions were capable of providing additional legal grounds to impugn his decision, the applicant was entitled to rely on them. There was no question of CS or his counsel being taken by surprise: at [10].

(2) In judicial review proceedings, no cross-examination would be allowed save in an exceptional case, or when the justice of the case required it. The nature of the disputes between CS and SS on the one hand, and between the applicant and CS on the other, made this an appropriate case for CS to submit to cross-examination. Grave injustice might have been caused to the applicant if he was not allowed to test the truth of CS's account of the conversations. The truth of SS's account was central to the applicant's primary case just as much as the truth of CS's account was central to his defence: at [22] and [25].

3) “Show cause” proceedings were different from judicial review proceedings, both with respect to the law as well as procedure. In the former, the court went into the merits of the findings and determination of the DC on the basis of the evidence recorded by the DC. It did not hear oral evidence at all. In the latter, the court did not deal with the merits of the decision but with its legality on ordinary administrative law grounds. Bias, as an aspect of procedural impropriety, was one of those grounds. The DC's decision was therefore subject to judicial review notwithstanding that the applicant might still have the right to show cause: at [27].

(3) The evidence was insufficient to support a finding of actual bias. Bias may be actual, apparent or imputed. The important matter was not what the applicant might think about the judge but the appearance, as it presented itself to the objective observer: at [72], [76] and [80].

(4) The test of bias should be referable to the contents of the bias rule. In judicial proceedings, the rule was most demanding. A judge was expected to maintain the highest standard of conduct in the exercise of his functions. He must bring an open and impartial mind to the determination of the dispute before him and not act in any way which compromised the integrity of the judicial process. The standard required of the chairman of the DC under the Legal Profession Act was just as high, commensurate with the standing and powers of that office: at [86].

(5) A decision-maker should not have any contact with any party to the proceedings or any of his witnesses in the absence of the other party or his counsel. There was evidence on which reasonable people might believe that CS might or could not bring an unprejudiced mind to the disciplinary inquiry. The contents of the two conversations between CS and SS gave an appearance of a real likelihood of bias. Although the other members of the DC filed affidavits stating that CS had not influenced or attempted to influence their decision, one could not tell to what extent the bias of the chairman may influence the decision of the rest: at [87], [99], and [100].

(6) CS strenuously resisted the application only because the applicant put his case at a level at which CS was given no choice but to defend his conduct and reputation. The applicant failed to prove the main charge of actual bias in the form of the threat to SS, but succeeded on a much less serious charge. Hence, each party should pay his own costs: at [114].

Alkaff & Co v Governor in Council [1937] MLJ 211 (refd)

Blume, Ex p [1958] SR (NSW) 334 (refd)

British Muslims Association v Secretary of State for the Environment (1988) 55 P & CR 204 (refd)

Cook International Inc v BV Handelmaatschappij Jean Delvaux and Bratt, Scott and Meadows [1985] 2 Lloyd's Rep 225 (folld)

David Anthony v PP [1985] 1 MLJ 453 (refd)

George v Secretary of State for the Environment (1979) 38 P & CR 609 (refd)

Hannam v Bradford Corporation [1970] 1 WLR 937 (folld)

JRL, Re; Ex parte CJL (1986) 66 ALR 239 (refd)

Loke Wan Tho, Re An Application by [1956] MLJ 149 (not folld)

Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 (refd)

O'Reilly v Mackman [1983] 2 AC 237; [1982] 3 All ER 1124 (refd)

R v Australian Stevedoring Industry Board (1953) 88 CLR 100 (distd)

R v BaathThe Times (11 April 1990) (refd)

R v Barnsley Licensing Justices, Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167 (refd)

R v Emerson, A Justice of the Peace for the County of the City of Belfast [1912] IR 377 (refd)

R v General Council of the Bar, Ex parte PercivalThe Independent (21 December 1989) (folld)

R v General Medical Council, Ex parte Gee [1986] 1 WLR 1247; [1987] 1 All ER 1204 (folld)

R v Hastings Licensing Justices, Ex parte John Lovibond & Sons Ltd [1968] 1 WLR 735; [1968] 2 All ER 270 (refd)

R v Hopkins Financial Times (18 March 1989) (refd)

R v Kent Justices, Ex parte Smith [1928] WN 137 (refd)

R v Kent Police Authority, Ex parte Godden [1971] 2 QB 662 (refd)

R v Liverpool City Justices, Ex parte Topping [1983] 1 WLR 119; [1983] 1 All ER 490 (refd)

R v Liverpool Justices, Ex parte Roberts (1960) 124 JP 336; [1960] 2 All ER 384 (refd)

R v Llanidloes Licensing Justices (1957) 121 JP & LGR 454 (refd)

R v Magistrates Court at Lilydale, ex p Ciccone [1973] VR 122 (refd)

R v Stokesley Yorkshire Justices, Ex parte Bartram [1956] 1 WLR 254 (folld)

R v The Commonwealth Conciliation & Arbitration Commission (1969) 122 CLR 546 (distd)

R v The County Court Judge & the Justices of the Peace for the County of Clare [1918] 2 IR 116 (refd)

R v The Justices of County Cork [1910] 2 IR 271 (refd)

Steeples v Derbyshire County Council [1985] 1 WLR 256; [1984] 3 All ER 468 (folld)

Tahmindjis v Brown (1985) 60 ALR 120 (refd)

Tan Boon Chee David v Medical Council of Singapore [1979-1980] SLR (R) 523; [1980-1981] SLR 331 (refd)

Yii Suok Ting v Sibu Municipal Council [1986] 1 MLJ 232 (refd)

Legal Profession Act (Cap 161,1985 Rev Ed)ss 80, 87 (consd)

Rules of the Supreme Court1970, TheO 53 (consd)

Gavin Anthony Lightman QC and Ravindran Kumaran (Kalpanath & Co) for the applicant

Davinder Singh and Lau Kok Keng (Drew & Napier) for the respondent.

Judgment reserved.

Chan Sek Keong J

1 The applicant, an advocate and solicitor, has applied for an order of certiorari to quash the findings and determination of a Disciplinary Committee (“the DC”) which are set out in its report dated 30 November 1989 as follows:

(a) that on or about 16 October 1987 the applicant consented, contrary to the instructions of his client, LSW, to the continuation until the trial of the action of an interim injunction granted on 14 September 1987 against LSW in Suit No 2425 of 1987;

(b) that in late September 1987, he represented to LSW that the interim injunction had been lifted and that LSW could carry on her video business when he knew or ought to have known that such representation was not true;

(c) that in September 1987, he falsely represented to LSW that a sum of $5,000 was needed as payment into court for the purpose of lifting the interim...