Natural Justice

Question 1

What are the two ideas natural justice represent?

Answer 1

1. Natural justice represents the idea that:
   - (1) a person is entitled to a hearing; and
   - (2) the hearing must be a fair hearing.
2. Procedure used to safeguard the citizen against the improper exercise of power by public authority: “Impartiality” and “Fairness”
3. A fair administrative procedure to be followed by the administrative body in arriving at the right decision.
4. Natural justice is confined to the idea of fair hearing procedure.

• Hearing entitlement|Fear hearing
• Impartiality | Fairness
• Fair administrative procedures followed
• Fair hearing procedure

Question 2

What are the objectives of the rule of natural justice?

Answer 2

• To allow the affected person to give his side of the story
• To enable the decision-making authority to determine a matter on a more informed basis.
• To secure justice (i.e to prevent miscarriage of justice)
• To ensure fairness and impartiality through governing the manner of arriving at the decisions by the judicial process
• To avoid erroneous conclusions
• To promote confidence in the fairness of the administrative process.

Question 3

What happens when the rule of natural justice are not followed?

Answer 3

• If a person or a body exercising judicial or quasi-judicial function fails to observe the rules of natural justice, then, there is an error of law rendering an order or a decision of a decision-making authority as ultra vires.
• i.e natural justice has been denied to the applicant and the authority has acted ultra vires
• The court will quash the decision made.
• When a decision maker failed to observe natural justice in making an order, the order will be treated as a VOID or VOIDABLE ORDER.

Question 4

What is a voidable order?

Answer 4

• A voidable order – the order is valid at its inception and remains valid until set aside by the court
• Durayappah v Fernando: The Minister’s order was attacked for denial of NJ and was voidable and not a nullity

Question 5

What is a void order?

Answer 5

• A void order – the order is null and void ab initio
• Ridge v Baldwin – HOL held that the order of the watch committee dismissing the Chief Constable was null and void.

Question 6

When can natural justice be claimed?

Answer 6

• When the administrator exercises judicial or quasi-judicial powers; law must be silent for the requirement of hearing.
• If the right of hearing is specifically conferred by the constitution or statute, the right of hearing is not considered as part of natural justice but a requirement under the constitution or statutory provisions.
• Art 135(2), Federal Constitution: No member of any service specified in paragraphs (b) to (h) of Art. 132(1) shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard
• s6(1) & s6(2), Industrial Coordination Act: The Minister may, at his discretion, revoke a license of a manufacturer, but before doing so, the Minister may call upon the manufacturer to show within such period as may be prescribed due cause why his license should not be revoked.

—————-

• Hearing conferred by law: requirement
• Law is silent: Can claim natural justice

Question 7

How did the principles of natural justice develop?

Answer 7

• Position up to 1960s: Natural justice is not to be applied to person or administrative bodies performing a legislative function. Nor does it applicable to administrative bodies exercising administrative function
• Natural justice is applicable to judicial and quasi-judicial bodies. Example:
• Small Claims Court,
• Disciplinary Tribunal of University, Club, etc.

Question 8

What happened in 1964?

Answer 8

The House of Lords made a landmark ruling in Ridge v Baldwin [1964] AC 40

Question 9

What were the facts in Ridge v Baldwin [1964] AC 40?

Answer 9

• The law allowed the Committee to “dismiss, any constable whom they think negligent in the discharge of his duty…”
• Ridge, a Chief Constable of Brighton, had been charged with conspiracy to obstruct the course of justice but he was acquitted by the court.
• In respect of corruption charges, evidence was not adduced.
• The committee dismissed him after 33 years without him being afforded a hearing before the committee.
• He challenged the order of dismissal on the ground that the committee failed to observe natural justice where he was not allowed to know the full case against him.

Question 10

What was held in Ridge v Baldwin [1964] AC 40?

Answer 10

(House of Lords) The termination was ultra vires on the ground that the applicant’s right to be heard had not been honoured. His dismissal was declared to be null and void. The courts can imply natural justice even if natural justice is not expressly stated in the statute. An officer cannot be lawfully dismissed without first telling him what is alleged against him and hearing his defense.

Question 11

How was Ridge v Baldwin [1964] AC 40 brought into Malaysia?

Answer 11

Through the Federal Court’s decision in Ketua Pengarah Kastam v Ho Kwan Seng [1977] MLJ 152

Question 12

What were the facts in Ketua Pengarah Kastam v Ho Kwan Seng [1977] MLJ 152?

Answer 12

• Under the Customs Act 1967, Ho Kwan Seng, the Respondent, was granted permission to work as a forwarding agent.
• He was convicted of two offenses and fined.
• The registration of his forwarding agency was canceled because of his conviction.

Question 13

What was decided in Ketua Pengarah Kastam v Ho Kwan Seng [1977] MLJ 152?

Answer 13

• Natural justice was applicable in the matter of cancellation of the agency even though the statute in question made no provision for the same.
• The rule of natural justice that no man may be condemned unheard should apply to every case where an individual is adversely affected by an administrative action, no matter whether it is labelled ‘judicial’, ‘quasi judicial’, or ‘administrative’, or whether or not the enabling statute makes provision for the hearing.

Question 14

How many components does natural justice have?

Answer 14

Two.

Question 15

What are the components of natural justice?

Answer 15

• Audi alteram partem
• Nemo judex in causa sua

Question 16

What is audi alteram partem translated into?

Answer 16

The rule of fair hearing.

Question 17

What is nemo judex in causa sua translated into?

Answer 17

The rule against bias.

Question 18

What is audi alteram partem?

Answer 18

No one is to be condemned unheared.

Question 19

What is nemo judex in causa sua?

Answer 19

No one is to be a judge in his own cause.

Question 20

What is Latin for ‘the rule of fair hearing’?

Answer 20

Audi alteram partem

Question 21

What is Latin for ‘the rule against bias’?

Answer 21

Nemo judex in causa sua

Question 22

Which Latin maxim is represented by ‘no one is to be condemned unheard’?

Answer 22

Audi alteram partem

Question 23

Which Latin maxim is represented by ‘no one is to be the judge in his own cause’?

Answer 23

Nemo judex in causa sua

Question 24

What is audi alteram partem about?

Answer 24

• A party whose rights, property, or legitimate expectations may be affected by an administrative adjudication has the right to be heard.
• The rule aims at providing the party with an opportunity for a fair hearing before an administrative decision is reached.

Question 25

What are common areas where rules of fair hearing are relevant?

Answer 25

• Licensing cases: Withdrawal or revocation of existing benefit; refusal to grant a licence.
• Employment: Dismissal.
• Professional bodies membership: Membership termination.
• Students: Dismissal on disciplinary matters or exclusion from an academic programme.
• Members of public services: Dismissal or rank reduction.

Question 26

What are the elements of the rule of fair hearing?

Answer 26

1. Notice
   - Charge
   - Time
2. Hearing

Question 27

What is notice in audi alteram partem? How is it served? Who can issue it?

Answer 27

• Notice is a vital requirement of the right of hearing. Must be served/given before the proceeding.
• The means of serving notice
  → Personal service;
  → Postal service – posting notice to the party’s last known address; or
  → Substituted service.
• A notice must be issued by a person authorized to carry out the intended action.

Question 28

What are the purposes of giving notice?

Answer 28

1. To allow a party to make representations on his own behalf;
2. To allow a party to appear at any possible hearing of inquiry is held; and
3. To enable a party to effectively prepare his case and to answer the case against him.

Question 29

Notice must be adequate. What are the three components to satisfy this purpose?

Answer 29

1. A statement of the time, place, and nature of the hearing;
2. The statutory authority or other authority under which the hearing is held; and
3. The legal and factual issues which will be discussed.

Question 30

What should the notice of proceedings provide?

Answer 30

The notice of proceedings should:
1. Be formulated with sufficient precision to inform the affected person as to what he is required to do (the grounds on which action is to be taken should be mentioned clearly).

2. Provide a party with a sufficient indication of the issues which will enable him to prepare a case. (i.e. the notice should describe the offense briefly).
3. State clearly the grounds on which action is to be taken (i.e, nature of the accusations, particulars of offense alleged, or the charge)

Question 31

Which court was Urban Housing Co Ltd. v Oxford City Council [1940] Ch 70 heard in?

Answer 31

UK Court of Appeal

Question 32

Who were the judges in Urban Housing Co Ltd. v Oxford City Council [1940] Ch 70?

Answer 32

1. Sir Wilfrid Greene, MR,
2. Clauson LJ, and
3. Goddard LJ.

Question 33

What were the facts of the case in Urban Housing Co Ltd. v Oxford City Council [1940] Ch 70

Answer 33

• In 1933 a company purchased from a local authority part of an estate for the purpose of developing it as a private building estate. The plan of the land purchased showed two roads (with sewers beneath them) running across the company’s land and connecting with two roads in the local authority’s land. The conveyance did not reserve to the local authority a right of way over the two roads in the company’s land.
• In September, 1934, the company informed the local authority that they proposed to retain these two roads as private roads and to build walls across them. After some correspondence the company built two walls across the roads, so preventing access to them from the local authority’s land.
• On September 20, 1937, the town clerk of the local authority wrote to the company calling upon them to remove the walls and make good the surface of the roads and enclosing a notice purporting to be pursuant to s. 26 of the Public Health Act, 1875.
• On February 7, 1938, the local authority adopted the Private Streets Works Act, 1892, and shortly afterwards declared the two roads in the company’s land to be highways repairable by the inhabitants at large.
• On June 7, 1938, the local authority’s parliamentary committee passed a resolution instructing the city engineer to remove the walls forthwith and they were accordingly demolished.

Question 34

What did Sir Wilfred Greene MR state in Urban Housing Co Ltd. v Oxford City Council [1940] Ch 70?

Answer 34

The importance of what I have been saying is its bearing upon the argument that under s. 26 what the corporation have done was justifiable, and in support of that argument reference was made, and necessarily made, to a matter which would destroy its force, namely, the principle that a local authority exercising such a power of demolition as this, in coming to its decision to demolish, and thereby conferring upon itself the statutory power to demolish, is acting in a quasi-judicial capacity and must give the person concerned either a notice that they intend to take this matter into their consideration with a view to coming to a decision, or, if they have come to a decision, that they propose to act upon it, and give him an opportunity of showing cause why such steps should not be taken.

Question 35

Paraphrased, what did Sir Wilfred Greene MR state in Urban Housing Co Ltd. v Oxford City Council [1940] Ch 70?

Answer 35

“The local authority must either give the party concerned a notice, they intended to consider the matter with the purpose of reaching a decision or if they have reached the decision, they intended to enforce it and give the alleged party an opportunity to show why action cannot be taken against them.”

Question 36

Which court heard Sloan v General Medical Council [1970] 2 All ER 686?

Answer 36

Privy Council

Question 37

Who were the judges in Sloan v General Medical Council [1970] 2 All ER 686?

Answer 37

1. Lord Hodson
2. Lord Guest, and
3. Lord Donovan.

Question 38

What were the facts in Sloan v General Medical Council [1970] 2 All ER 686?

Answer 38

• The appellant, a registered medical practitioner, prescribed tablets and administered injections for a fee each time to two women and represented to them that the tablets and injections were to procure a miscarriage. He also accepted money from each of the women for performing or arranging to perform an operation on each and for that purpose administered general anaesthetic and represented to each of the women on her recovery from the anaesthetic that the operation had been performed.
• The appellant also prescribed tablets and administered injections to a third woman for a fee each time and arranged for a urine test and informed her that she was pregnant.
• He was charged before the respondents, the disciplinary committee of the General Medical Council, that on those facts he had been guilty of infamous conduct in a professional respect.
• The charges were so framed that whether the representations made by the appellant to the three women were true or false the appellant would be equally guilty on the facts of infamous conduct in a professional respect.
• In fact the tablets and injections were not designed to procure a miscarriage and no operation was in fact performed nor was the third woman in fact pregnant.
• The appellant gave evidence that his actions were designed to prevent the women from going to a professional abortionist and were in conformity with his religious belief.
• The only conclusion which could be drawn from the evidence was that the appellant’s representations were false. The appellant was found guilty of infamous conduct, and the appellant’s name was directed to be erased from the register of medical practitioners.

Question 39

What were the two grounds of appeal in Sloan v General Medical Council [1970] 2 All ER 686?

Answer 39

1. That the facts proved did not amount to infamous conduct; and
2. That the rules of natural justice were not observed in the conduct of the case against the appellant.

Question 40

What was held in Sloan v General Medical Council [1970] 2 All ER 686?

Answer 40

1. The preferment of ‘trap charges’ that would lead to a conviction irrespective of any explanation given was strongly to be deprecated; if it was desired to prefer alternative charges they should have been preferred in the recognised forms (see p 688 c, post).
2. There was no evidence that the pills and injections were intended to procure a miscarriage or that an illegal operation had been performed and the proper charge, therefore was one of false pretences.
3. There were no closed categories of infamous conduct and in every case it was for the committee of members of the appellant’s own profession, to decide whether the facts were proved and whether they amounted to infamous conduct; since there was no evidence on which the committee could have found the appellant guilty of anything but false pretences there was no reason to think that he had been prejudiced by the form in which the charge was framed or that there had not been due enquiry;

Accordingly, the appeal would be dismissed.

Question 41

Who delivered the judgement of the court in Sloan v General Medical Council [1970] 2 All ER 686?

Answer 41

Lord Guest

Question 42

What was the principle in Sloan v General Medical Council [1970] 2 All ER 686 with relation to trap charges?

Answer 42

“A charge should not be worded so that a party is found guilty no matter which way he pleads – the charge is a trap charge.”

Question 43

What are two examples of notice in law?

Answer 43

• Art. 24-27, Federal Constitution: The Federal Government has the power to deprive a Malaysian citizen of his citizenship under certain circumstances. Before making such an order, the government has to give him notice in writing and prescribed form informing him on the ground which it is purposed to make the order and the person’s right to have the case referred to an inquiry committee.
• Hospital Assistant (Registration) Regulations 1979: Before the Hospital Assistants Registration Board can remove a name from the register of Hospital Assistance…the Board must serve a month’s notice in Form 6 2nd Schedule before holding a hearing. In the notice, the reason for the proposed removal of the name is to be mentioned.

Question 44

What are the facts in Maradana Mosque Board of Trustees v Mahmud [1967] 1 A.C. 13?

Answer 44

• The government took over the school on 2 grounds (failed to pay salaries of teachers and unable to manage the school), but the manager was asked to explain only one ground (failure to pay salaries).
• The managers had no notice of other grounds, which influenced government’s decision.

Question 45

Which Court heard Maradana Mosque Board of Trustees v Mahmud [1967] 1 A.C. 13?

Answer 45

The Privy Council

Question 46

Who were the judges on Maradana Mosque Board of Trustees v Mahmud [1967] 1 A.C. 13?

Answer 46

1. Lord Reid;
2. Lord Morris of Morthy-y-Gest;
3. Lord Pearce;
4. Lord Upjohn; and
5. Lord Pearson.

Question 47

What was held by the court in Maradana Mosque Board of Trustees v Mahmud [1967] 1 A.C. 13?

Answer 47

• The decision to take over the school was quashed – the managers were not given notice of one ground, i.e., not adequate notice.
• The Minister was acting in a quasi-judicial capacity and was bound to observe the rule of natural justice.

Question 48

Which court heard Public Prosecutor v Ottavio Quattrocchi [2003] 1 CLJ 557?

Answer 48

High Court of Malaya in Kuala Lumpur

Question 49

Who was the judge in Public Prosecutor v Ottavio Quattrocchi [2003] 1 CLJ 557?

Answer 49

Augustine Paul J (as he was then)

Question 50

What were the facts in Public Prosecutor v Ottavio Quattrocchi [2003] 1 CLJ 557?

Answer 50

• Ottavio Quattrocchi, the respondent, an Italian national who was resident in India during the relevant period, was accused by the Government of India for committing offences under s. 120B, Indian Penal Code 1860 and s. 5(2), Prevention of Corruption Act 1947 (‘the alleged offences’).

-The Indian Government sought for his extradition and the Minister of Home Affairs, Malaysia issued a special direction under the Extradition Act 1992 (‘the EA’) to such effect.

• The respondent was eventually arrested and brought before the Sessions Court judge where the determination that ought to be had was whether the alleged offences were extradition offences vides. 6 of the EA. When the trial commenced, the respondent raised a preliminary objection regarding the further conduct of the inquiry on the premise that he had not been served with any charges thus far.
• The trial judge upheld the said objection and discharged the respondent, stating that in absence of a proper charge, the respondent would be deprived of forming a proper defence and so would the court be equally deprived as it would be unable to decide on the admissibility of evidence adduced.
• The prosecution applied to this court for a review of the said decision.
• It was contended that the trial judge was not authorised under the EA to make an order to discharge before the trial concluded. It was also argued that the respondent had not been prejudiced due to the absence of proper charge as he had been served with the requisition documents so as to acknowledge the particulars of the offences alleged. Furthermore, the EA did not necessitate the formulation of a charge.

Question 51

Based on the slides, what were the facts in Public Prosecutor v Ottavio Quattrocchi [2003] 1 CLJ 557?

Answer 51

An Italian nation lived in India has been denied right of natural justice in extradition process where no notice being given. The court held that respondent being deprived right of proper defence due to failure to serve notice.

Question 52

What was held in Public Prosecutor v Ottavio Quattrocchi [2003] 1 CLJ 557?

Answer 52

1. Under s. 18, Extradition Act 1992, the Sessions Court is conferred with jurisdiction to inquire into an extradition matter, i.e. that which relates to a fugitive criminal as defined by s. 5 of the EA, brought before it. The objection entertained by the trial judge was accordingly regular. An order for discharge may be made at any stage of the proceedings where the charge was found to be groundless. It is trite that a court could hear matters only if it has the jurisdiction to do so, for otherwise the trial would be a nullity.
2. Any order or decision in matters involving civil consequences, including civil liberties, has to be consistent with the rules of natural justice, unless the statute specifically rules out the application of natural justice.
3. One of the fundamental principles of natural justice is that a party in a legal proceeding must have a reasonable opportunity of being heard. A person against whom an order to his prejudice may be passed must have a reasonable opportunity to present his case and this involves the disclosure of the charge which must be in a reasonable time to allow him to prepare his defence. The failure to provide a charge would be equivalent to a denial of the opportunity to be heard.
4. An order of extradition to be made against a person is without doubt a matter of personal liberty. Thus, the absence of any provision in the EA relating to a charge does not mean that there is no right to it. On the contrary, such absence confirms the right.
5. In an extradition hearing, the arrested person must be informed of the charges. The charge would articulate the particulars of the offence and the relevant law infringed in a legal form. It is the recognised form of furnishing particulars of an offence in a criminal proceeding. As the inquiry would proceed as if the offences had been committed in Malaysia, the charge must correspond to offences under Malaysian law. In the present case, the prosecution should have served the charges in the Malaysian context and further supplement with particulars of the offence in law. This, however, was not done.
6. A charge is a formal accusation of a crime. Where there is no stipulation that a charge ought to be formulated in a certain manner, then there can be no objection to it being presented in an informal manner provided it contained the necessary particulars.
7. The prosecution did not furnish the respondent with a summary of the requisition of documents which was voluminous in nature. It was unreasonable and indeed prejudicial to the respondent to expect him to identify the required particulars in such an instance.
8. The court must be furnished with a copy of the charge as this would enable it to decide on the relevancy and admissibility of the evidence submitted, and whether the evidence adduced is sufficient. It would also ensure the identification of the relevant corresponding Malaysian law so as to facilitate a determination of compliance with the double criminality rule. Equally essential is the furnishing of the charge in accordance with the law of the requesting country and if this could not be done, then at least a statement of the particulars of the offence must be supplied.
9. Without the charges, or, in the alternative, proper particulars of the offences the inquiry before the Sessions Court just could not have started. In the circumstances, the prosecution’s failure to supply the court and the respondent with the corresponding charges was fatal.

Question 53

Which court heard Intrakota Consolidated Bhd v Mohamad Roslin Md Shah & Anor [2008] 8 CLJ 81?

Answer 53

High Court of Malaya in Kuala Lumpur

Question 54

Who was the judge in Intrakota Consolidated Bhd v Mohamad Roslin Md Shah & Anor [2008] 8 CLJ 81?

Answer 54

Lau Bee Lan J (As she was then)

Question 55

What is the principle in Intrakota Consolidated Bhd v Mohamad Roslin Md Shah & Anor [2008] 8 CLJ 81?

Answer 55

Time, place, identity of person in charge is essential.

Question 56

What were the facts in Intrakota Consolidated Bhd v Mohamad Roslin Md Shah & Anor [2008] 8 CLJ 81?

Answer 56

• The 1st respondent was employed as a bus driver in the applicant company.
• The applicant carried out an investigation on 7 April 2000 on Bus Route 24 to verify complaints received from the passengers in the Ampang area that the applicant’s drivers were receiving fares from passengers without issuing tickets.
• The applicant then alleged that the 1st respondent had on 7 April 2000 instructed a passenger to hand over a RM2 note bearing serial number DW 3273427 being the said passenger’s fare to a friend of the 1st respondent while driving bus number WFK 2526.
• The 1st respondent was required to attend a Domestic Inquiry (“DI”) where he was found guilty of the charge proffered against him and was dismissed from service.
• The learned Chairman of the Industrial Court made a decision in favour of the 1st respondent and held that he had been dismissed without just cause or excuse since the findings of the Panel of the DI were erroneous for being based on a charge which was “defective and bad in law for want of material particulars and for its highly prejudicial nature to the defence of the claimant”.
• According to the learned Chairman, the identity of the said passenger and friend should have been disclosed in the charge.
• The learned Chairman also held that there was no need to look into the merits of his termination as the basis of his termination was fundamentally flawed from the beginning.
• Being dissatisfied with the award, the applicant sought an order of certiorari to quash it.

Question 57

What did the learned judge say about the validity of the charge in Intrakota Consolidated Bhd v Mohamad Roslin Md Shah & Anor [2008] 8 CLJ 81?

Answer 57

What is of particular importance is the validity of the charge preferred against the 1st respondent and therefore material particulars as to time, place and identity of persons referred to in the charge are essential to enable the 1st respondent to know with certainty the charge levelled against him and to allow him to prepare and conduct his defence; as the learned Chairman stated at p. 8 of the impugned award, “It may well be that it is also within the personal knowledge of the claimant (1st respondent), but it is not for the claimant to fill in the gaps… It is for the company to lay all the bare facts as the burden is always upon the company to show by evidence that the excuse or reasons given to terminate the claimant’s employment has been made out or proven”.

Question 58

What was held by the court in Intrakota Consolidated Bhd v Mohamad Roslin Md Shah & Anor [2008] 8 CLJ 81?

Answer 58

1. There was nothing perverse in the rationale nor did the learned Chairman act in excess of jurisdiction when he found it not necessary to look into the merits of the applicant’s termination.
2. The material particulars as to time, place, and identity of persons referred to in the charge were essential to enable the 1st respondent to know with certainty the charge levelled against him and to allow him to prepare and conduct his defence.

Question 59

Which court heard Lam Siew Leong v Krishna Kumar s/o RK Krishnan [2017] MLJU 841?

Answer 59

High Court of Malaya in Penang

Question 60

Who was the judge in Lam Siew Leong v Krishna Kumar s/o RK Krishnan [2017] MLJU 841?

Answer 60

Abdul Wahab Mohamed JC (as he was then)

Question 61

What were the facts of the case in Lam Siew Leong v Krishna Kumar s/o RK Krishnan [2017] MLJU 841?

Answer 61

1. Lam Siew Leong, the Plaintiff, was an apprentice jockey licensed by the Defendant, the Malayan Racing Association (‘MRA’).
2. Krishna Kumar s/o RK Krishnan, the Defendant, holds the position of a Public Officer in the MRA, a society registered under the Societies Act 1966. MRA is an association of 4 turf clubs namely the Penang Turf Club, the Perak Turf Club, the Selangor Turf Club, and the Singapore Turf Club (collectively called ‘the Associated Clubs’). The MRA together with the associated clubs regulate the profession and sport of horse racing in Malaysia and Singapore.
3. The profession and the sport of horse racing in Malaysia and Singapore are governed by Rules of Racing of the MRA, the MRA Regulations, and the Notices of the MRA (collectively called ‘the MRA Rules’). The powers of the Committees of the MRA and the Associated Clubs and the powers of the Stewards are derived from the contract between the MRA, the Associated Clubs, and the Plaintiff. The Rules form the terms and conditions of the contract. The MRA Rules govern inter alia the rights and liabilities of all the parties involved in the profession and the sport of horse racing including jockeys, trainers, horse owners, and others.
4. On 11.08.2013, the Plaintiff took part in a race event that was held at the Penang Turf Club, known as Race 4 (‘the Race’). The Plaintiff rode a horse named Wind of Success (‘the Horse’).
5. The Panel of Stipendiary Stewards consisting of three Stipendiary Stewards namely Scott Thomas Matthews, Lee Seng Ee (‘DW1’), and Devaraj Arjunan of the said Race (‘the Stipendiary Stewards’) after viewing the race held an inquiry into the running and riding of the horse by the Plaintiff. The Stipendiary Stewards are officials appointed by the MRA whose designated scope of authorities and powers are described in the MRA Rules 20, 21 and 22.
6. The inquiry was then adjourned to 16.08.2013 and 17.08.2013. Meanwhile, the Plaintiff sought medical treatment from a Dr. Suaran Singh (DW-4), who was the panel doctor for Penang Turf Club on that day. He diagnosed the Plaintiff as suffering from stiff fingers at the left hand due to dehydration. He prescribed some oral medication. He also issued and certified a MRA Medical Form which confirmed that the Plaintiff was ‘not fit to ride’.
7. At the conclusion of the inquiry, the Stipendiary Stewards framed a charge against the Plaintiff alleging that the Plaintiff had acted in contravention to Rule 44(8) of the MRA Rule in failing to allow the Horse to run on its merits.
8. MRA Rule 44(8) provides that the jockey of every horse in a race shall take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity of winning or of obtaining the best possible placing. MRA Rule 44(8)(a) empowers the Stipendiary Stewards to disqualify a jockey who was found guilty of contravening Rule 44(8) for a period not less than one (1) year and not more than three (3) years, together with the power to impose fine not exceeding RM100,000-00.
9. The Stipendiary Stewards read the charge to the Plaintiff and required him to enter a plea. The Plaintiff pleaded not guilty to the charge. However, the Stipendiary Stewards proceeded to find the Plaintiff guilty as charged and imposed upon the Plaintiff the following penalties:

• (i) the Plaintiff be disqualified for a period of two years with immediate effect from 17.08.2013 to 16.08.2015; and the Plaintiff be fined a sum of RM50,000-00.

10. The Plaintiff then appealed to the Racing Stewards under MRA Rule 145(‘the Racing Stewards’). Racing Stewards are officials appointed by the MRA whose designated scope of authorities and powers are prescribed under MRA Rules 11 to 18 as well as 143 to 147. One of the powers conferred upon the Racing Stewards is to hear appeals from any decision made by the Stipendiary Stewards under MRA Rules 23, 143 and 144.

• 1. The Racing Stewards heard the Plaintiff’s appeal on 23.10.2013, and thereafter decided to reject the appeal and affirm the penalties imposed by the Stipendiary Stewards.
• 2. Dissatisfied with the decisions reached by the Stipendiary Stewards and the Racing Stewards, the Plaintiff had proceeded to file this action today.

Question 62

What were the three complaints by the plaintiff in Lam Siew Leong v Krishna Kumar s/o RK Krishnan [2017] MLJU 841?

Answer 62

1. That the Plaintiff was not notified of the charges against him before the proceeding commenced;
2. That the Stipendiary Stewards denied the Plaintiff reasonable opportunity to question the witness i.e. DW4 who had allegedly given damaging evidence against the Plaintiff; and
3. That the appellate proceeding before the Racing Stewards is invalid because it was not conducted in accordance with the MRA Rules.

Question 63

Can the High Court review a decision of a private or domestic tribunal? On what authority?

Answer 63

Yes, it has the authority. In the case of Ng Kim Chor v HR Hochstadt & Ors [1998] 7 MLJ 19, the court ruled:

It is trite law that the High Court in its supervisory role in reviewing a decision of a private or domestic tribunal in an action by an aggrieved party under the private law remedy by way of a declaration should not be concerned with the guilt or innocence of the aggrieved party but with the regularity of the proceedings whether such proceedings were conducted with adherence to the requirements of natural justice. The role of the court is to examine only the correctness of the decision-making process and not the correctness of the decision. The court should not conduct a rehearing of the case. The jurisdiction of the court in reviewing the decisions of domestic tribunal cannot be attacked on the ground that it is against the weight of evidence. The court has no power to review the evidence for the purpose of deciding whether the tribunal came to a right conclusion. It is not the function of the court to resolve issues of fact which are properly within the sphere of the tribunal’s inquiry (see Singapore Amateur Athletics Association v Haron bin Mundir [1994] 1 SLR 47 at p 59).

Question 64

What was the case referred to by Lam Siew Leong v Krishna Kumar s/o RK Krishnan [2017] MLJU 841 in relations to natural justice?

Answer 64

Brownlow Carr And Others [1979] 2 WLR 755 which was decided by the Privy Council:

“In addition to these formal requirements, a reviewing court must take account of the reality behind them. Races are run at short intervals; bets must be disposed of according to the result. Stewards are there in order to take rapid decisions as to such matters as the running of horses, being entitled to use the evidence of their eyes and their experience. As well as acting inquisitorially at the stage of deciding the result of a race, they may have to consider disciplinary action: at this point rules of natural justice become relevant. These require, at the least, that persons should be formally charged, heard in their own defence, and know the evidence against them. These essentials must always be observed but it is inevitable, and must be taken to be accepted, that there may not be time for procedural refinements. It is in order to enable decisions reached in this way to be reviewed at leisure that the appeal procedure exists. Those concerned know that they are entitled to a full hearing with opportunities to bring evidence and have it heard. But they know also that this appeal hearing is governed by the Rules of Racing, and that it remains an essentially domestic proceeding, in which experience and opinions as to what is in the interest of racing as a whole play a large part, and in which the standards are those which have come to be accepted over the history of this sporting activity. All those who partake in it have accepted the Rules of Racing, and the standards which lie behind them: they must also have accepted to be bound by the decisions of the bodies set up under those rules so long as when the process of reaching these decisions has been terminated, they can be said, by an objective observer, to have had fair treatment and consideration of their case on its merits.

In their Lordships’ opinion precisely this can, indeed must, be said of the present case. The plaintiff’s case has received, overall, full and fair consideration, and a decision, possibly a hard one, reached against him. There is no basis on which the court ought to interfere, and his appeal must fail.”

Question 65

How did the court find the complaints in Lam Siew Leong v Krishna Kumar s/o RK Krishnan [2017] MLJU 841?

Answer 65

1. It is in my considered view that the Plaintiff’s allegation that the Stipendiary Stewards had deprived the Plaintiff of his right to a fair hearing for failing to notify the Plaintiff of the charges against him before the proceeding commenced does not hold water.
2. The Stipendiary Steward also welcomed submission by the Plaintiff’s master in which the Plaintiff’s master had submitted on the same point as the Plaintiff and nothing further.
3. I find that the Plaintiff was afforded reasonable opportunity by the Stipendiary Stewards to cross-examine DW4.

The learned judge also held:

“From the principles as may be derived from the above authorities, the evidence adduced before this court supported by DW2’s and DW3’s evidence at trial, I am satisfied that the Chief Stipendiary Steward having attended the hearing of appeal is not acting in contravention to the MRA Rules. Due to the peculiar nature of position that the Stipendiary Stewards holds, I am satisfied that it is necessary for the Stipendiary Stewards to appear in the hearing of appeal before the Racing Stewards and such practice does not in my considered view contravened the principles of natural justice.”

Question 66

What are the three cases to refer to in relations to charge must also be clear, specific, and unambiguous?

Answer 66

1. State of Uttar Pradesh v Salig Ram Sharma 1960 AIR default 543
2. Abdullah Borhan v Ketua Polis Melaka & Anor [2008] 9 CLJ 605
3. Hasdie Tusin v Kudat Golf Marina Resort [2016] 2 LNS 1133

Question 67

What are two other cases related to charge may/may not include types of punishment?

Answer 67

1.** Nordin Zakaria v Mohd Noor Abdullah** [2004] 2 CLJ 777
2. Abd Aziz Alias v Timb Ketua Polis Negara [2010] 3 CLJ 643

Question 68

What are two other cases concerning notice need not be in proper writing?

Answer 68

1. Sloan v General Medical Council [1970] 1 WLJ 1130
2. Lim KO v Board of Architects [ 1966] 2 MLJ 80

Question 69

Which court heard Abdullah Borhan v Ketua Polis Melaka & Anor [2008] 9 CLJ 605?

Answer 69

High Court of Malaya in Melaka

Question 70

Who was the judge in Abdullah Borhan v Ketua Polis Melaka & Anor [2008] 9 CLJ 605?

Answer 70

Low Hop Bing J

Question 71

What were the facts in Abdullah Borhan v Ketua Polis Melaka & Anor [2008] 9 CLJ 605?

Answer 71

• Abdullah Borhan, the plaintiff, until his dismissal, was a detective lance corporal in the Royal Malaysian Police.
• He was called up to attend disciplinary proceedings presided over by the first defendant, the Melaka State Officer, as the adjudicating officer.
• Three disciplinary charges were preferred against the plaintiff, but only the third charge was relevant.
• The third charge read that the plaintiff, a detective serving in the Criminal Investigation Branch, Melaka Tengah Police District Headquarters, on 8 February 1996, was found to have not surrendered the type of firearm revolver to the Armoury of the Melaka Tengah Police District Headquarters, while a check conducted revealed that on the aforementioned date, he was off duty, hereby breaching the Order HT KPN C.111 para 5 and the Order of the Melaka Tengah District Police Chief in the Special Conditions for the Issue of Firearms, thereby committing a disciplinary offence under sch.2(7) disobeying a valid order in the Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970.
• The defendants contended that in the third charge, the breach of discipline against the plaintiff was ‘wilfully disobeying the lawful order’ and that it was a disciplinary offence under para. 7 in the schedule to the Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970 (‘the 1970 Regulations’).
• The plaintiff herein averred that the third charge was not valid, baseless, and defective. The issues that arose were (i) whether the third charge was properly worded by reason of the fact that the allegations leveled against the plaintiff had merely been conveyed and expressed partially and inadequately; (ii) whether the plaintiff had wilfully disobeyed a lawful order.

Question 72

What was the charge to the plaintiff in Abdullah Borhan v Ketua Polis Melaka & Anor [2008] 9 CLJ 605?

Answer 72

Pertuduhan Ketiga

Bahawa anda, Encik Abdullah bin Borhan, L/Kpl/D. 102224, Anggota Detektif, pada Ketika itu berkhidmat di Cawangan Siasatan Jenayah Ibu Pejabat Polis Daerah Melaka Tengah, dalam Kontinjen Melaka, pada 8/2/96 didapati telah tidak menyerahkan senjatapi jenis Revolver.38 Spl. 2” no. J843207 yang anda ambil pada 3/2/96 ke Stor Senjatapi IPPD Melaka Tengah sebagaimana semakan yang dibuat dalam catitan Pol. 74C Stor Senjatapi IPPD Melaka Tengah bil. 1363 yang mana pada 8/2/96 anda kelepasan tugas, dengan ini anda telah engkar arahan HT KPN C.111 para 5 dan Arahan Ketua Polis Daerah Melaka Tengah dalam Syarat-Syarat Khas Pengeluaran Senjatapi yang anda tandatangani pada 1/12/95, maka dengan ini anda telah melakukan satu kesalahan tatatertib di bawah Jadual 2(7) TIDAK MENURUT PERINTAH YANG SAH dalam Peraturan-Peraturan Polis (Kelakuan dan Tatatertib) (Pegawai-Pegawai Rendah Polis dan Mata-Mata) 1970 dan P.U. (A) 86 bertarikh 24/2/70 dan P.U. (A) 56 (Pindaan) bertarikh 8/2/84 dan anda boleh dihukum di bawah peraturan-peraturan yang sama.

[Translation:

Third Charge

That you, Encik Abdullah bin Borhan, L/Kpl/D. 102224, a detective then serving in the Criminal Investigation Branch, Melaka Tengah Police District Headquarters, in the Contingent of Melaka, on 8 February 1996 was found to have not surrendered the type of firearm Revolver.38 Spl. 2” No. J.843207, which you took on 3 February 1996, to the Armoury of the Melaka Tengah Police District Headquarters, while a check conducted on the endorsement in Pol.74C in the Armoury of the Melaka Tengah Police District Hq. No. 1363 revealed that on 8 February 1996 you were off duty, and you have hereby breached the Order HT KPN C.111 para 5 and the Order of the Melaka Tengah District Police Chief in the Special Conditions for the Issue of Firearms which you signed on 1 December 1995, and you have hereby committed a disciplinary offence under Schedule 2(7) Disobeying A Valid Order in the Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970 and P.U.(A) 86 dated 24 February 1970 and P.U.(A) 56 (Amendment) dated 8 February 1984 and you may be punished under the same regulations.]

Question 73

How did the judge find the third charge in Abdullah Borhan v Ketua Polis Melaka & Anor [2008] 9 CLJ 605?

Answer 73

• After carefully considering the aforesaid respective submissions, I am of the opinion that the third charge, as observed above, has not been happily worded, by reason of the fact that the allegations levelled against the plaintiff have merely been conveyed and expressed partially and inadequately.
• The Schedule to the 1970 Regulations contains various disciplinary offences and the disciplinary offence with which the plaintiff has been charged is contained in para (7) thereof, the relevant portion of which reads “wilfully disobeys any lawful order”, as has been correctly submitted by the learned senior federal counsel. With the utmost respect to the original draftsman of the third charge, it is plain to me that the said charge suffers from a serious and fundamental inadequacy or defect in that the word “wilfully” (or its equivalent in Bahasa Malaysia, “dengan sengaja”) has been omitted in the charge.
• The disciplinary offence contained in para (7) with which the plaintiff has been charged must be properly stated in the third charge.
• In my considered view, there is no doubt that the charge in question is so defective as to render the conviction and the sentence null and void. This ground alone would have expeditiously disposed of the suit herein without further ado. Be that as it may, I shall nevertheless proceed to consider the suit on its merits, on the assumption that the disciplinary charge has incorporated the word “wilfully” or “dengan sengaja” in Bahasa Malaysia.

Question 74

On the charge, what did the judge rule Abdullah Borhan v Ketua Polis Melaka & Anor [2008] 9 CLJ 605?

Answer 74

The disciplinary offence prescribed in para (7) of the Schedule to the 1970 Regulations consists of two essential elements viz. the mens rea which is the guilty mind, or guilty intent reflected or expressed in the word “wilfully” or “dengan sengaja” in Bahasa Malaysia and the actus reus which is the wrongful act of disobeying a lawful order. To constitute a proper charge under para (7), these two essential elements must be specifically, expressly and unambiguously stated, failing which the charge cannot be said to have disclosed the disciplinary offence at all and even if, as in the instant case, the plaintiff has pleaded guilty to the charge, the conviction recorded thereon against him and the sentence of dismissal meted out would nevertheless be null and void, unlawful and of no legal effect whatsoever.

Question 75

Which court heard Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v Mohd Noor Abdullah [2004] 2 CLJ 777?

Answer 75

Federal Court

Question 76

Who were on the bench in Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v Mohd Noor Abdullah [2004] 2 CLJ 777?

Answer 76

1. Ahmad Fairuz, CJ (Malaya)
2. Siti Norma Yaakob, FCJ
3. Mohtar Abdullah FCJ

Question 77

What were the facts in Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v Mohd Noor Abdullah [2004] 2 CLJ 777?

Answer 77

• Pursuant to the disciplinary proceedings initiated by the Deputy Chief Police Officer for the State of Kelantan (‘the appellant’ herein), the respondent, a lance-corporal, was found guilty and was dismissed from the Royal Malaysia Police (‘the Force’).
• The respondent then brought a suit against the appellant in the High Court but it was dismissed.
• On appeal, however, the Court of Appeal found for the respondent and held that there was procedural unfairness in the disciplinary proceedings conducted by the appellant, chiefly because the appellant did not inform the respondent, before the commencement of the proceedings, that he could be punished with dismissal or a reduction in rank if he were to be found guilty.

Question 78

What were the two issues in Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v Mohd Noor Abdullah [2004] 2 CLJ 777?

Answer 78

1. Whether the disciplinary authority, before conducting the disciplinary proceedings (orderly room procedure) under the Police (Conduct & Discipline) (Junior Police Officers & Constables) Regulations 1970 (‘the 1970 Regulations’), is required to inform a junior police officer such as the respondent that he may be dismissed from the force if he is found guilty; and
2. Whether reg. 28(1) of the Public Officers (Conduct & Discipline) Regulations 1993 (‘the 1993 Regulations’) applies in favour of a junior officer such as the respondent in the disciplinary proceedings conducted under the 1970 Regulations.

Question 79

What did the court held in the first issue in Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v Mohd Noor Abdullah [2004] 2 CLJ 777?

Answer 79

Although the respondent fell generally within the category of officers who are members of the public service as defined by s. 3 of the 1993 Regulations, nonetheless, he specifically came within the ambit of reg. 1(2)(a) of the 1970 Regulations which applies to all junior police officers and constables.
- Since the 1970 Regulations have been expressly made to regulate the discipline of junior police officers holding the rank of constable and below, the 1993 Regulations can only apply to senior police officers above the rank of constable. A special provision in a special statute excludes the operation of a general provision dealing with the same subject matter.
- The general provision concerning the identity of the person affected by the 1993 Regulations is displaced by the express provision as to the identity of the person affected by the 1970 Regulations.
- Generalibus specialia derogant.

Question 80

What did the court held in the second issue in Nordin Hj Zakaria (Timbalan Ketua Polis Kelantan) & Anor v Mohd Noor Abdullah [2004] 2 CLJ 777

Answer 80

• There is nothing in the 1970 Regulations that requires or entitles the respondent to be informed before the commencement of the orderly room procedure that he might be punished with dismissal or a reduction in rank if he were to be found guilty.
• As there is no provision in the 1970 Regulations imposing an obligation similar to that prescribed by s. 28(1) of the 1993 Regulations, the appellant could not be said to have deprived the respondent of procedural fairness by not so informing the latter.
• There cannot be a breach of duty where none exists in law.