Ho Man-fat v. The Royal Hong Kong Jockey Club

HCA000382/1976

IN THE HIGH COURT OF JUSTICE

HIGH COURT

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ACTION NO. 382 OF 1976

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Coram: Cons, J.

Date of Judgment: 15th March, 1976 at 9.15 a.m.

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DECISION

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1. On the 3rd of January this year a horse named "Seven Good" started in the 5th Race at Happy Valley, the Ma Tau Chung Handicap. In that race the horse did not live up to its name; it ran badly and finished unplaced some ten lengths behind the leaders. That is not important. What is important and attracted the attention of the stipendiary stewards was the way in which the horse was ridden for the last quarter. Perhaps I should say the way in which it was not ridden. The stipendiary stewards thought that the jockey did nothing whatever to bring the horse under pressure or to assist it over that last stretch. The Race stewards for that meeting decided to hold an enquiry into the matter. It was commenced that very evening but almost immediately adjourned to the following Monday lunch time.

2. At the adjourned hearing the jockey and trainer were present, and also the owner, a Mr. Ho Man-fat, the plaintiff in this present action. Films of the race were shown and of an earlier race in which the same jockey had ridden the same horse. Questions were asked by the race stewards and explanations proffered by the other three. A shorthand note was kept of the proceedings. In the end the race stewards came to what, on the material before them, was the inevitable conclusion: the horse had not been, in the words of the racing rules, "run on its merits". The stewards disqualified the horse for a period of six months together with the jockey, the trainer and Mr. Ho.

3. All three appealed to the stewards in general. The appeals were heard together the following Monday, that is the 12th of January. Nothing fresh transpired and all the appeals were dismissed. Consequent to this the general stewards held another enquiry under Article 32 of the Memorandum and Articles of Association of the Jockey Club which deals, among other matters, with the breach by a member of the racing rules, and they suspended Mr. Ho from the Club for a similar period of six months.

4. Mr. Ho wishes to challenge the validity of the disqualifications and suspension. He has brought an action in this court asking for a declaration that they are null and void and for consequential injunctions. In the meantime he seeks an interim injunction to reinstate him and his horse to the positions they previously enjoyed. His application was argued in chambers last Friday. As it is a matter of some public interest, I have adjourned into open court to give my decision.

5. Mr. Ho's writ of summons mentions several grounds; only one has been argued before me, whether or not there was sufficient evidence upon which the stewards could properly, as far as Mr. Ho was concerned, act. The Club, through its counsel, answers in two ways. Firstly, it says it is a purely private matter of a kind into which the courts will not enquire. Secondly, it says that in any event when the very high standards expected by the Club from owners are applied, there was sufficient evidence.

6. Now it is well established that the courts will not interfere in the kind of case in which the Committee of a private club is empowered to expel a member for conduct which in their opinion is detrimental to the club. In such matters the court will ensure that the procedure laid down by the club rules is followed and that there is fair play. Further than that the court will not go. It will not act as a court of appeal of moral or social standards. On the other hand, it is equally well established that the court will interfere, if necessary, in the affairs of associations which, although still private in the sense that they are set up by mutual agreement rather than by statute, nevertheless have absolute control over a particular trade or profession. Expulsion from such an association usually deprives a member of his right to make a living by that trade or profession, and for this reason the court will protect him; and one of the matters that it will look to, if a man has been expelled, is to see if there was sufficient evidence to warrant the decision of the association.

7. It is said here that the Jockey Club is a private social club within the first category. With respect I do not agree. It certainly does offer some purely social facilities in the form of catering and residence. It also offers limited facilities for other sports. But its principal concern is the promotion of horse racing. In this respect it has, as a matter of fact, a complete monopoly in this Colony and there is great public interest in the racing that it sponsors. Non members are invited and come to each meeting in large numbers. Huge sums of money are wagered through its tote both on and off the course. The activities of the horses figure prominently in every daily newspaper and other media. It is to my mind not realistic to say that the expulsion and disqualification of the owner of one of those horses is a purely private matter within the Club. Apart from that, the owner's proprietary rights are affected. I am satisfied that this court has the jurisdiction to enquire and, if necessary, to interfere therein.

8. The stewards of the Club are not required by the rules to give reasons for their decisions. They did not do so in the present case and no affidavit has since been filed setting out what those reasons were, but it is easy to see that they must have been principally influenced by the answers that Mr. Ho gave to their questions at the enquiry. From these they deduced he was not telling the truth and must therefore have been party to the improper riding. If they did take that view of Mr. Ho's credibility, there is ample on the record to justify their doing so. In addition they had the advantage of seeing Mr. Ho as he spoke before them. Whether they were entitled to go further and draw the inference of guilt from that alone is another question. The average person would immediately say yes. He would fall, says counsel for Mr. Ho, into what counsel called "the layman's trap", the false equation that an untrue denial equals guilt. With respect, I am not absolutely persuaded that this is always and necessarily a trap. There may be rare occasions - and perhaps this is one of them - when the peculiar circumstances are such that the only reasonable inference to be drawn from a palpably false excuse is that of guilt. Lies as proof is a concept not wholly unknown to the law. Lies may corroborate other evidence. There is one authority that restricts this proposition to lies that are told out of court. That is R. v. Chapman⁽¹⁾. There is another authority, however, of higher standing which casts doubt upon that distinction and that is Boardman's case⁽²⁾. And with respect it is difficult to see why it is necessary. One would have thought that generally speaking the reason that a lie is conceived is more important than the place where it is borne. Then again in criminal prosecutions the standard of proof required is proof beyond reasonable doubt. The racing rules of the Jockey Club require only that it be "in the opinion of" the stewards. It may be that this denotes some lower standard although I would think it cannot denote a standard that accepts matters which may be no proof at all.

9. These are not easy questions. I do not propose to attempt an answer to them now. I mention them merely to illustrate the difficulties that do exist and why I am satisfied that the plaintiff has raised matters which will deserve serious consideration at the trial. That is the first hurdle that the plaintiff must surmount at this stage. The second hurdle is to show that what is generally known as the balance of convenience is in his favour. But before I consider that, I should mention two other matters which may have influenced the stewards in their decision. The first is the excuse made by the jockey, the trainer and Mr. Ho that the horse "Seven Good" had always been in a poor condition. If that were so, says counsel for the Club, it is a fraud upon the racing public and the Club Handicapper, for the true merits of the horse are not then shown. It is a neat answer but I do not think it has any substance. The evidence did not suggest the horse was anything like that bad. The only fraud which gave concern to the stewards of the day was the way the horse was ridden in that particular race.

10. Then it was shown that despite a promise Mr. Ho made in writing to the Club in March, 1973, when he subscribed for "Seven Good" and presumably also when he subscribed for the many other horses that he has owned at one time or another, a promise that he would personally manage the horse, he has made no attempt to do so but instead has left everything in the hands of his trainer. The Club does not take this promise to mean that an owner must undertake personally the actual day to day care of his horse. That will normally be left to the trainer and the jockeys. But the Club exacts the promise from all would-be owners so that there shall be some overall supervision and control which will in turn restrict the opportunities for malpractice. Failure to keep that promise by Mr. Ho may therefore be reprehensible, it may be ground for excluding him from further ownership in the future, but it does not, however, by itself show that he was an actual party to this particular malpractice.

11. I turn back then to the balance of convenience. The first question is the adequacy of damages to compensate Mr. Ho for his losses if at the trial he is shown to be correct. His counsel suggests that damages can in no way be sufficient. With respect I do not agree. One major item of the claim relates to loss of reputation. This is no problem. It is a matter commonly dealt with in libel actions. In any event, the grant of temporary relief will not immediately restore that reputation. I wish to make it quite clear that my decision today in no way reflects the correctness or otherwise of the Club's decision. That is something which must await the outcome of the trial proper and there the trial judge will have the benefit of the examination and cross-examination of witnesses and ample time for consideration. All that I am concerned with is the position until that trial is held. I wish there to be no misunderstanding of this aspect.

12. Damages in respect of loss of racing and other facilities and what effect this may have upon "Seven Good" and the other horse that Mr. Ho still owns may not be so easy to assess but would not be beyond the capabilities of this court. So far as the horses are concerned, some similar assessment would certainly have to be made if one of them were, for example, injured or killed by a motor-car when moving between the track and stable. However, there can be no question of damages in this instance for by Rule 192 of the Racing Rules of the Club, any such claim is specifically excluded. Thus, it seems to me that the balance of convenience is very much in favour of the plaintiff. If the injunctions he now seeks are refused, most, if not all, of the disqualification and suspension periods will have expired before the case comes on for trial. If then his complaints are found to be justified, he will have suffered losses for which there can be no recompense. If, on the other hand, his complaints are groundless, the Jockey Club will have suffered nothing. The disqualification and suspension will still stand as a punishment to Mr. Ho and as a warning to others.

13. There is some doubt as to the effect that the interim injunctions will have upon the running of the periods imposed by the Club. It is thought that they will operate as an automatic stay and that if and when the plaintiff's action should be dismissed, the unexpired portion will continue as from that time. The injunctions are granted on that understanding, but in case this understanding should be wrong, the plaintiff has, through his counsel, given an undertaking that he will at no time seek to argue otherwise.

14. For these reasons the injunctions will be granted in terms asked for, to continue until the trial of this action or further order of this court. The question of costs is reserved for the trial judge.

Representation:

Michael Sherrard, Q.C., Patrick Yu and William Chan (P.C. Woo & Co.) for plaintiff.

Charles Ching, Q.C., and A.H. Sakhrani (Johnson Stokes & Master) for defendant.

(1) [1973] 2 W.L.R. 876

(2) [1974] 3 W.L.R. 673