Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JC
• Judgment Date: 02 September 2005
• Neutral Citation: [2005] SGHC 153
• Docket Number: Originating Motion No 23 of 2004
• Date: 02 September 2005
• Year: 2005
• Published date: 06 September 2005
• Plaintiff Counsel: T Subramaniam and Gulab Sobhraj (Sobhraj Tay Low Subra and Teo)
• Citation: [2005] SGHC 153
• Defendant Counsel: Rebecca Chew Ming Hsien and Mark Cheng Wai Yuen (Rajah and Tann)
• Court: High Court (Singapore)
• Subject Matter: Traditional Chinese Medicine Practitioners Board convening inquiry committee to investigate complaint made against acupuncturist,Applicable tests for bias,Whether acupuncturist furnishing inaccurate particulars in application for registration as physician under Traditional Chinese Medicine Practitioners Act,Whether members of inquiry committee displaying bias in conduct of investigation,Whether amounting to improper acts or conduct,Sections 19(1)(a), 19(1)(j) Traditional Chinese Medicine Practitioners Act (Cap 333A, 2001 Rev Ed),Professions,Whether acupuncturist forging signature in supporting documentation for application for registration as physician under Traditional Chinese Medicine Practitioners Act,Whether registration obtained by fraudulent or incorrect statement,Medical profession and practice,Appropriate sanction to administer

2 September 2005

Andrew Phang Boon Leong JC:

Introduction

1 Traditional Chinese medicine (“TCM”) is becoming increasingly popular and attempts are being sought to integrate it with more conventional methods of medical treatment. This is all to the good. However, the industry is still developing and its operational oversight is still in its relative infancy. It therefore needs to be afforded the maximum latitude to ensure its success – not only for its practitioners or even for the industry as a whole but also, and more importantly, for the overall benefit of Singapore in all its multifarious aspects. However, it is imperative that all this must be achieved within an appropriate legal structure.

2 To this end, the Singapore Parliament enacted the Traditional Chinese Medicine Practitioners Act (Cap 333A, 2001 Rev Ed) (“the Act”). This Act was intended to provide the legal framework that would facilitate the growth of the industry. Unfortunately, the present proceedings focus on those parts of the Act which deal with situations that are of a more negative nature. In particular, they concern an appeal against the suspension of the appellant’s registration as an acupuncturist for a period of two years which was imposed on him by the Traditional Chinese Medicine Practitioners Board (“Board”) commencing from the date of the notice to this effect to him. The appellant was suspended as he was found guilty of improper acts or conduct under s 19(1)(j) of the Act. The proceedings leading to the suspension may be summarised as follows.

3 A complaint was preferred by Dr Tan Kia Choo (“Dr Tan”) against the appellant. In brief compass, the complaint comprised two main elements. The first was that the appellant had submitted a document that contained a forged signature to the Board. This document was a certificate of employment (“COE”) which accompanied an application by the appellant to the Board for registration as an acupuncturist. The second concerned the appellant’s application itself (dated 28 February 2001). In particular, it was alleged that the appellant placed in his application inaccurate particulars which allegedly misled the Board into believing that he was a full-time TCM physician in the employ of ECM Chinese Medical Centre (“ECM”).

4 The Board convened an investigation committee (“IC”) to inquire into the abovementioned complaint. In so far as the terms of reference by the Board to the IC were concerned, it should be noted, in addition, that the Board was also to consider whether, following from the two main elements in the complaint set out in the preceding paragraph, the appellant’s registration as an acupuncturist had been obtained by a fraudulent or incorrect statement and, if so, whether it should then recommend to the Board to exercise its discretion to cancel the appellant’s registration pursuant to s 19(1)(a) of the Act (the full text of the provision is set out below at [102]).

5 Briefly put, the IC found that the complaint against the appellant was justified and recommended to the Board that the appellant’s registration as an acupuncturist under the Act be cancelled in the light of a contravention of s 19(1)(a), which, as already mentioned, involves the obtaining of a registration under the Act by a fraudulent or incorrect statement.

6 However, as already alluded to above, the Board decided that the appellant’s conduct fell within the scope of s 19(1)(j) instead (the full text of the provision is set out below at [102]). It then decided to suspend the appellant’s registration as an acupuncturist for a period of two years commencing from the date of the notice to him. It should be mentioned that that suspension has not yet taken effect because of the appellant’s appeal in the present proceedings. According to s 19(5) of the Act, “[a] decision to cancel or suspend the registration of a registered person shall take effect on the date the decision has been communicated to him or, where an appeal against the decision is made to the High Court, the date of the decision of the Court” [emphasis added].

A preliminary point ─ the nature of the present proceedings

7 There could be no doubt as to the precise nature of the present proceedings. Although it was by way of a rehearing, it was nevertheless an appeal. This much is made clear by s 21 of the Act itself, which reads as follows:

Appeal

21.—(1) Any person who is aggrieved by a decision of the Board under section 19 (1) or (2) may, within 30 days of the date of the decision or within such further period as the High Court may allow, appeal to the High Court against the decision.

(2) There shall be no appeal from a decision of the High Court.

8 Hence, counsel for the Board, Ms Rebecca Chew, was correct in pointing out that the general principles relating to an appellate court’s consideration of the lower court’s or tribunal’s decision (here, of the Board) would obtain (citing the Singapore decisions of Arts Niche Cyber Distribution Pte Ltd v PP [1999] 4 SLR 111 at [30] and Er Joo Nguang v PP [2000] 2 SLR 645 at [65]). These principles indeed constitute trite law but, in most instances at least, principles become trite law precisely because they are so fundamental that they are taken as givens. This is one such instance.

9 In particular, it is clear that the appellate court will be slow to disturb the lower court’s findings of fact, particularly since the latter would have had the opportunity of observing the witnesses first-hand and is therefore presumed to have a much clearer view of the credibility and demeanour of the witnesses concerned.

The allegation of bias

Introduction

10 I deal, first, with the allegation by the appellant of apparent bias on the part of three members of the IC. Although raised as only a preliminary issue at the actual hearing before the IC, it is of the first importance for it goes to one of the very pillars of the enterprise of law itself. As counsel for the appellant, Mr T Subramaniam, aptly put it, it is embodied within that time-honoured Latin phrase “Nemo judex in causa sua”. Put plainly, it embodies a clearly fundamental principle of natural justice. And it is this: that no person should be a judge in his or her own cause (that other great pillar of natural justice being, of course, “audi alteram partem” – that every one has a right to be heard and that none ought therefore to be condemned unheard). Indeed, this principle falls under the rubric of “natural justice” because it is so basic that no system of adjudication can afford to ignore it. It embodies the concept of impartiality and objectivity. Because of it, we can rest assured that the adjudicator (whether he or she be a judge or arbitrator or member of any other legally constituted tribunal) will deliver his or her judgment fairly and justly. Simply put, this principle embodies the basic concept of impartiality, whereas the right not to be condemned unheard embodies another basic concept, that of fairness. Lord Denning, delivering the Privy Council decision of B Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322, put it succinctly as follows (at 337):

The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex in causa sua: and Audi alteram partem. They have recently been put in the two words, Impartiality and Fairness. But they are separate concepts and are governed by separate considerations.

11 Indeed, any system is only as good as the persons who administer it. In so far as a legal system is concerned, the necessity for impartiality and objectivity is a given. Otherwise, respect for the law will be forfeit. Public confidence in the legal system will be eroded and disintegration and chaos will ensue. More than that, all that is noble and fine and which undergirds the law will be tarnished and destroyed. This cannot, and must not, be allowed to happen. Lord Denning MR, in my view, put in well, when he observed, in the English Court of Appeal decision of Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 at 599: “Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.’”

12 More specifically in the context of the present proceedings, if the allegation of bias were true, it would pollute the warp and woof of the very proceedings of the IC itself. The taint would be indelible.

13 Even more specifically, the allegations of bias were levelled against more than half of the members who constituted the IC. These were extremely serious allegations indeed, particularly if we take into account the fact that the report by the IC was a pivotal document in the present proceedings, containing the principal findings upon which the Board arrived at its final decision to suspend the appellant’s registration as an acupuncturist.

14 At this juncture, it should be noted that whilst the abovementioned principle of natural justice is easily grasped in its essence by all, the actual test to be applied is not as clear-cut as it ought to be. Hence, I deal with this important legal issue first before proceeding to deal with the particular allegations of bias in the present case (as to which see [46]–[51] below).

The two tests

15 There appear, in fact, to be two tests adopted by the courts in so far as apparent bias is concerned (it should be noted that there is no issue of actual bias in the present proceedings). One is more stringent than the other. The first – and less stringent – one is what has been termed the “reasonable suspicion of bias” test. The other has been termed the “real likelihood of bias” test. There has, as we shall see, been no small disagreement across the Commonwealth as to which test should prevail.

The Singapore position

16 The position in Singapore appears...