De Souza Lionel Jerome v Attorney General

• Jurisdiction: Singapore
• Judge: Lim Teong Qwee JC
• Judgment Date: 25 November 1992
• Neutral Citation: [1992] SGHC 292
• Date: 25 November 1992
• Subject Matter: Test for determining if tribunal biased,Unfair dismissal,Appellant over age of retirement,Whether reinstatement appropriate remedy,Whether reasonable suspicion of bias exists,Administrative Law,Breach of audi alteram partem rule,Right to be heard,Tribunal forming view of principal witness' credibility before hearing all evidence,Right to be given reasonable opportunity to be heard on prejudicial report,Bias,Standard of proof varying with context in which question of bias arises,Employment Law,Natural justice,Remedy for unlawful dismissal
• Docket Number: Suit No 2096 of 1989
• Published date: 19 September 2003
• Defendant Counsel: Lee Sieu Kin and Kwan Chiu Wan (State Counsel)
• Court: High Court (Singapore)
• Plaintiff Counsel: Bernard Doray (Bernard Rada & Lee)

Cur Adv Vult

The claim

Lionel Jerome De Souza joined the Singapore Police Force as a recruit police constable in October 1961. He was confirmed as a detective police sergeant in March 1976. In May 1984 four disciplinary charges were preferred against him. Three of these charges each alleged an offence under para (k) of s 27(1) of the Police Force Act (Cap 235)(`the Act`) of excess of duty resulting in injury to a suspect who was under arrest by assaulting him on 29 October 1981 and one alleged an offence under para (c) of conduct to the prejudice of good order and discipline by shouting at the wife of the suspect and threatening to have the suspect remanded for another week on 6 November 1981. The disciplinary proceedings were conducted by John Pereira who was authorized in that behalf by a commanding officer. There were some 32 sittings which commenced in October 1984 and concluded in August 1985. In November 1985 Pereira found De Souza guilty of all four charges and after having heard a mitigation plea informed him that he would be `making [his] recommendations to the proper authority`. On 4 January 1986 De Souza received a letter of dismissal from Chua Cher Yak who was then a commanding officer. He appealed to the Commissioner of Police as he was entitled to and was suspended from duty without pay from 15 January 1986. On 4 October 1986, almost five years after the offences were allegedly committed, the Commissioner of Police dismissed his appeal.

In this action commenced in 1989, De Souza claims a declaration that the dismissal was illegal, void and inoperative and ultra vires the Constitution and the Act and in violation of the rules of natural justice and a declaration that he is still a detective police sergeant of the Singapore Police Force and consequently entitled to be remunerated as such or alternatively damages for wrongful termination, and other consequential reliefs.

The pleadings

De Souza`s case as pleaded is (1) the dismissal was unfair because the authorized officer who conducted the proceedings was biased or there was a real likelihood of bias on his part, (2) the dismissal was unfair because the authorized officer violated the rules of natural justice in that although De Souza was given an opportunity to be heard during the proceedings, the evidence as a whole was not reasonably capable of supporting a finding of guilt, (3) the commanding officer was in breach of art 110(3) of the Constitution or the rules of natural justice in dismissing De Souza without giving him a reasonable opportunity of being heard before such dismissal and further failed to reduce him to the rank of constable as required by s 33 of the Act, (4) De Souza was dismissed in breach of s 27 of the Act and the Police Regulations (`the Regulations`) in that the record of the proceedings and the `judgment` of the authorized officer did not go to the commanding officer but instead went for assessment of findings and sentence by a staff officer of the Police Force and the commanding officer relied on the assessment report of the staff officer in dismissing him, and (5) the submission of the assessment report of the staff officer to the commanding officer was in breach of the rules of natural justice in that the existence of the report was unknown to De Souza and he had no opportunity to be heard in respect of the report. It is also alleged that (1) the commanding officer did not consider the alternative punishments under s 27 of the Act, and (2) the commanding officer failed to consider the several commendations which were not known to him at the time De Souza was dismissed. These were not pursued at the trial but in any case the evidence was that the commanding officer did consider the alternative punishments and he had before him the service record with the commendations before he took the action to dismiss De Souza.

The Attorney General denies the allegations of bias and of a real likelihood of bias on the part of the authorized officer. He denies any breach of the rules of natural justice. He says that the authorized officer conducted the proceedings in a proper manner and in accordance with the law. He denies that the commanding officer was in breach of the Constitution or the rules of natural justice and says that De Souza was afforded a reasonable opportunity of being heard. He denies any breach of the Act or the Regulations and says that the commanding officer did not rely on the assessment report. He denies that De Souza was entitled to be heard in respect of the report.

The issues

(1) Bias or real likelihood of bias

The law

Mr Doray conceded and in my opinion quite rightly that the evidence does not justify any finding of actual bias and he did not pursue the point. The substantial question to be decided was whether, as pleaded in para 12 of the statement of claim, there was bias in the sense of a real likelihood of bias. At the outset I invited Mr Doray to consider whether he thought the case ought to be put at `real likelihood of bias` or whether he would consider some other expression but he was quite content to leave this paragraph of the statement of claim unamended.

In R v Rand & Ors [1866] 1 QB 230 which was decided in 1866, Blackburn J said at pp 232-233:

Wherever there is a real likelihood that the judge would, from kindred or any other cause, have a bias in favour of one of the parties, it would be very wrong in him to act; and we are not to be understood to say, that where there is a real bias of this sort this court would not interfere; ... (Emphasis added.)

A few years later, in Eckersley v Mersey Docks and Harbour Board [1894] 2 QB 667[1891] All ER Rep 1130 Lord Esher MR at p 671 referred to:

...the doctrine which is applied to judges, not merely of the superior courts, but to all judges - that, not only must they be not biased, but that, even though it be demonstrated that they would not be biased, they ought not to act as judges in a matter where the circumstances are such that people - not necessarily reasonable people, but many people - would suspect them of being biased (Emphasis added.)

Over the years the courts have had to determine the question of the existence of bias and it may be rightly said that the test for determining bias (in cases other than those concerning pecuniary or proprietary interest) is in a state of some confusion. Should it be `real likelihood of bias` or a `reasonable suspicion of bias`?

In R v Sunderland Justices [1901] 2 KB 357 AL Smith MR said at p 364:

It appears to me that, in cases where the decision of justices is impeached on the ground of a bias such as is suggested in the present case, the decision must really turn on the question of fact, whether there was or was not under the circumstances a real likelihood that there would be a bias on the part of the justices alleged to have been so biased.

Vaughan Williams LJ said at p 371:

The judgment in R v Rand (1866) LR 1 QB 230 clearly shews that there is another case, namely, that in which the objection is not on the ground of pecuniary interest, but in the nature of a challenge to the favour. In such a case there is no such presumption as arises in the case of a pecuniary interest, but the question is whether there is a real likelihood, arising from circumstances such as would give rise to a challenge to the favour, that the judge or justice would have a bias.

In R (Donoghue) v Justices of County Cork [1910] 2 IR 271 Lord O`Brien LCJ dissented from the view of Lord Esher in Eckersley v Mersey Docks and Harbour Board [1894] 2 QB 667[1891] All ER Rep 1130 and said at, p 276:

There must, in the words of Blackburn J be a `real likelihood` of bias: R v Rand(1866) LR 1 QB 230. In R (De Vesci) v Justices of Queen`s Co[1908] 2 IR 285, I expressed myself as follows: `By "bias" I understand a real likelihood of an operative prejudice, whether conscious or unconscious.` There must, in my opinion, be reasonable evidence to satisfy us that there was a real likelihood of bias.

Not many years later the House of Lords considered the question in Frome United Breweries Co Ltd v Keepers of the Peace and Justices for County Borough of Bath [1926] AC 586 in which Viscount Cave LC said at p 591:

... the justices who are members of the authority are bound to act judicially and not to sit if they are subject to that which in R v Rand (1866) LR 1 QB 230 was referred to by Blackburn J as a `real likelihood of bias`; and I cannot doubt that in the case of those three justices who took part in instructing a solicitor to oppose the renewal of the licence of the Seven Dials, such a real likelihood of bias existed.

And Lord Atkinson cited with approval the judgments of AL Smith MR and Vaughan Williams LJ in R v Sunderland Justices [1901] 2 KB 357

But a few years before these pronouncements in the House of Lords, the `doctrine which is applied to judges` referred to by Lord Esher MR was to find fresh support. In R v Sussex Justices, ex p McCarthy [1924] 1 KB 256[1923] All ER Rep 233 there was a collision between a vehicle belonging to McCarthy and another belonging to Whitworth and a summons was taken out by the police against McCarthy for driving in a manner dangerous to the public. At the hearing of the summons the acting clerk to the justices was a member of the firm of solicitors acting for Whitworth in a claim for damages against McCarthy for injuries received in the collision. At the conclusion of the evidence the justices retired to consider their decision, the acting clerk retiring with them in case they should desire to be advised on any point of law. The justices convicted McCarthy, and it was stated on affidavit that they came to that conclusion without consulting the acting clerk, who in fact abstained from referring to the case. Lord Hewart CJ said at p 259:

... a long line of cases shows that it is not merely of some importance but is

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