Ho Man Fat v. The Royal Hong Kong Jockey Club

HCA000382A/1976

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO.382 OF 1976

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Coram: McMullin, J.

Date of Judgment: 18th June, 1976.

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JUDGMENT

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1. The plaintiff in this action, Mr. HO Man-fat, is a prominent Hong Kong business man, the proprietor of a well-known Chinese language newspaper published in the Colony. About the time of the events with which we are concerned he had been a member of the defendant club since the 24th March, 1952 and in the intervening years had owned a number of race horses which he ran at the race track owned by the defendant. On the 3rd January, 1976 a horse called "Seven Good" (one of seven race horses then owned by the plaintiff) was entered for a race known as the Ma Tau Chung Handicap. On that day it was ridden in that race by a jockey called Billy Lam and the manner in which it was ridden attracted the attention of two of the Race Meeting Stewards on duty at the course during that race. The jockey was summoned immediately after the race and an inquiry was commenced by the Race Meeting Stewards. Later the trainer also was summoned and the hearing was adjourned to the 5th January for the attendance of the plaintiff. Following upon that inquiry the Meeting Stewards announced a conclusion to the effect that the horse "Seven Good" had not been allowed to run on its merits (an infringement of the Rules of Racing covered by rule 131(1)) and further that the trainer, the jockey and the plaintiff as owner had all been parties to the horse being so run. They were each declared to be disqualified for a period of six months for a contravention of the provisions of rule 131(1) and they all appealed to the Stewards of The Jockey Club, as they were entitled to do under Rules 156 to 159 of the Rules of Racing. The appeals were heard together on the 12th January, 1976 and all three were dismissed. On the 26th January, 1976 an inquiry was held under Article 32 of the Articles of Association of the defendant club as a result of which the plaintiff was suspended from exercising all privileges of membership at the club for a period coextensive with his disqualification under the Rules of Racing, i.e. six months. The writ in the present action was issued on the 24th February, 1976. The principal relief claimed is framed as follows:-

Upon an application taken before Cons, J. on the 12th March, 1976 the plaintiff sought interlocutory orders in the terms above set out and upon the 15th March, 1976 the learned judge granted injunctions in those terms to continue until the trial of the action or further order of the court the question of costs being reserved to the trial judge.

2. At the hearing of the action neither party called any evidence and both Mr. Sherrard, for the plaintiff, and Mr. Ching, for the defendant club, were content to argue the matter upon the transcript of the evidence taken before the officials of the Jockey Club in the course of the several inquiries. All of these proceedings appear to have been conducted principally in Cantonese with an interpreter translating the evidence into English for the benefit of the Stewards, although occasionally the trainer, Mr. NG Chi-lam, and the owner, Mr. HO Man-fat, would break into English of a somewhat idiosyncratic sort. No question however arises as to the adequacy of the record. Counsel were able to agree before me certain corrections to the original transcript, which was I believe taken from a shorthand writer's note translated into English, tape-recordings of the proceedings having been consulted for checking purposes subsequent to the transcription in English of the shorthand note. These corrections appear as insert slips in typescript pasted in at appropriate places above the original translation. Wherever these appear they are to be accepted as the proper translation of the proceedings at that point.

3. The plaintiffs complaint in the present action is that the course taken in the inquiry held by the Stipendiary Stewards on the 3rd and 5th January and his resulting disqualification have caused an injustice so grave as to warrant the interference of this court notwithstanding that the Stewards were purporting to act within the limits of powers given to them by the Rules binding upon all members of the Jockey Club, and notwithstanding that the matter at issue between himself and the Club is one within the competence of the Stewards to inquire into and to decide.

4. Before I turn to deal in greater detail with the nature of this complaint as it bears both upon the manner of the proceedings and with the evidence taken thereat it will be helpful, by way of clearing the ground, to note the following things. Firstly, although all three, owner, trainer and jockey were found guilty of infringing Rule 131(1) and all were equally penalised and although all appealed and vigorously protested both the findings and the punishment we are not now concerned with the propriety of the Stipendiary Stewards' findings as regards the jockey or the trainer. Mr. Sherrard, in particular, does not challenge the finding that the jockey did culpably fail to run the horse upon its merits and he concedes that it was wholly within the professional competence of the Stipendiary Stewards to reject the jockey's explanation for his behaviour. Secondly, the bona fides of all the officials involved in the original inquiry and the appeal therefrom, and in the subsequent inquiry which resulted in the exclusion of Mr. Ho from membership, is conceded. The plaintiff, that is to say, does not dispute that in everything they did the officials were actuated by no improper motive but were acting throughout with the honest intention of implementing the provisions of the relevant Rules of Racing and of the Articles of Association in relation to what they honestly believed to be evidence of a breach of Rule 131(1). Thirdly, although at the outset Mr. Sherrard made it plain that the principal complaint was against the initial inquiry extending across the 3rd and 5th January, the complaint being that nothing in the record of that inquiry discloses anything in the nature of satisfactory evidence against Mr. Ho, he conceded that all the remaining proceedings, including even the inquiry into membership of the 26th January, might legitimately be inspected for the purpose of seeing whether such evidence existed. It was his contention however that the appeal proceedings and the subsequent inquiry proceedings so far from augmenting the evidence alleged to implicate Mr. Ho upon the original inquiry had the effect of further weakening the case against him by blurring the issue originally being investigated and by introducing irrelevant considerations which may have weighed with the Jockey Club Stewards in dismissing the appeal and in their ultimate decision to exclude the plaintiff from membership.

5. One other matter should I think be dealt with before turning to consider the substance of the plaintiff's compalint. It is specifically pleaded in paragraph 6 of the defence that this court has no jurisdiction to inquire into or interfere with the decision of the Stewards. This pleading is grounded upon the older cases in which may be found dicta implying that where a domestic tribunal, established under the rules of a private club, has taken action of punitive or disciplinary nature against a member of the club for behaviour which either breaks the rules of the club, or is in the opinion of that tribunal adverse to the interests of the other members, such decisions are not justiciable before ordinary courts. As to that it may be said, firstly, that the pleading in any event begs its own question, for the ouster of the court's jurisdiction is said to result from, amongst other matters, the alleged compliance of the Stewards with the rules of natural justice. As it stands therefore it appears to acknowledge that a breach of the rules of natural justice would entitle a court to intervene. That is no doubt the sense of many more modern decisions, but apart from that it is plain that courts will in any case intervene to inspect the proceedings of various bodies such as clubs in dealing with members in a variety of circumstances including cases where a question arises as to the proper construction of the particular rule under which action has been taken. Lee v. Showmen's Guild of Great Britain⁽¹⁾, a case strongly relied upon by Mr. Sherrard, is a convenient locus for extracting the Kind of principle upon which courts will intervene in these cases. Before I resort to it for that purpose, however, it is timely to note that while Mr. Ching does not dispute the authority, or indeed the cogency, of the various passages in the judgment therein which have been relied upon by Mr. Sherrard, he maintains that that judgment does not touch the present case at all. That, he says, is because Lee's Case⁽¹⁾ dealt with a Guild of tradesmen of a particular kind empowered by rule to regulate the manner of their trading. It is therefore, he maintains, in a different category altogether from cases such as the present which deal with the powers, duties and liabilities inter se of a private social club and its members. I will return to examine the validity of that distinction a little later. The importance of it at the present point is that, if he is correct, it accounts for the way in which paragraph 6 of the defence has been pleaded and it would mean that, if the relevant principles, which are usually referred to as the rules of natural justice, have been complied with the court would indeed not be empowered to intervene. In other words, his contention at its broadest would succeed. The Court would be shut out from examining the evidence.

6. I will consider first the allegation that there was a failure to observe the rules of natural justice, the first of Mr. Sherrard's two principal contentions. What the plaintiff complains of in this regard is that he was never clearly informed of the nature of the charge against him and was not given a proper opportunity of replying to it. Whatever may be comprised under the somewhat elastic term "rules of natural justice" that complaint, if substantiated, would certainly constitute a breach of at least two of the principles which have commonly been held to be fundamental to fair play in any form of adjudication. Originally, it was contended in the plaintiff's pleadings that more was amiss than that. Thus it was said (paragraph 11 of the Statement of Claim) that the plaintiff was given no opportunity of legal representation either at the inquiry or upon the appeal. It is difficult to understand why that pleading was ever included since it is acknowledged that the relevant rules which are binding upon members of the club explicitly exclude the right to legal representation on the hearing of an appeal from any decision of the Stewards. Moreover, the rules do not oblige the investigating Stewards in the first instance even to hold an inquiry before announcing their conclusion. However, this complaint was expressly abandoned at the hearing. Secondly, it was originally pleaded (paragraph 14 sub-paragraphs (c) and (d) that the Stipendiary Stewards who held the inquiry had participated in the hearing of the appeal from their decision and furthermore that the plaintiff had been given no opportunity to address the Stipendiary Stewards in mitigation of sentence. Both of these contentions were also expressly abandoned at the hearing and it was conceded that the Stipendiary Stewards had not taken part in the proceedings upon the hearing of the appeal.

7. Mr. Sherrard stigmatized the proceedings at the inquiry and upon the appeal as "confused and confusing" in that, although Mr. Ho was informed at the outset of the inquiry on the 5th January that the inquiry concerned the running and riding of the horse "Seven Good", it was not until after he and the jockey and the trainer had been questioned that he was made aware that he was being charged with being a party to the horse not being run upon its merits. This deficiency is said to have been compounded by what occurred upon the appeal. At that stage, the running and riding of the horse being once again specifically in view, members of the appellate body, the Jockey Club Stewards, put questions to the plaintiff, concerning allegations made by the trainer and the jockey that the horse had been unfit for some time. The purport of these questions was to suggest that in any event the plaintiff should not have permitted a horse in that condition to be raced at all. Thus counsel says, even at that stage, the plaintiff may have been under the impression that what he was charged with was some form of negligent failure to superintend the management of the horse rather than positive connivance at its mismanagement in the race upon the day in question. This situation is said to have been rendered worse by the notification in writing dated 16th January 1976 informing the plaintiff that, following his disqualification it was proposed to enter into an inquiry in respect of his membership. That letter refers to Articles 32 and 35 of the Articles of Association of the club. Counsel points out that Article 32 lists four categories of conduct which may attract the penalty of suspension or of expulsion. One of these is described as "fraud or malpractice"; another simply as "breach of the Rules of Racing". Mr. Ho was represented by a lawyer at the membership Inquiry. Although the latter tried on several occasions to have it confirmed that the misconduct which was then being considered was the self-same misconduct which had earlier been attributed to his client, when his client had been suspended by the Stipendiary Stewards, he was met with the reply that the inquiry was only concerned with a breach of the Rules of Racing. Since Rule 131(1) is wide enough to cover both negligence and fraud it is said that this reply may further have induced Mr. Ho to believe, even at that stage, that the charge against him was, and always had been, one of negligence only. with all deference to the industry of counsel, who took me upon a minute and painstaking examination of the record concerning these several proceedings, I am quite unable to find any substance in this allegation. Although Mr. Sherrard conceded that the Race Meeting Stewards were not obliged to conduct their inquiry in accordance with the rules and procedures applicable to a criminal or even to a civil trial, he argued that the very fact that the plaintiff was deprived of legal representation, albeit legitimately deprived, made it advisable for the Stewards to ensure that the serious nature of their suspicions against Mr. Ho were made clear to him beyond doubt from the outset. The answer to this objection as it seems to me is two-fold. Firstly, there is nothing in any of the decided cases to which I was referred which would support the view that, upon an inquiry of this sort, the tribunal is obliged to observe something in the nature of the rules and procedures which apply whether in criminal or in civil cases. Indeed, one of the cases upon which Mr. Sherrard relies in this regard seems to me rather to speak but equivocally in his favour, although he relied upon it in another connection. In Davis v. Carew-Pole & Others⁽²⁾, a livery stable-keeper was accused by the National Hunt Committee of training a certain horse for a steeplechase contrary to the National Hunt Rules. He attended an inquiry into the matter without any prior notification concerning his alleged activities in connection with two other horses but those activities were nevertheless considered at the inquiry, following which he was declared a disqualified person. In that case, as in this, it was conceded that the Stewards had acted honestly and with complete bona fides. The plaintiff contended, however, that the inquiry had not been conducted in accordance with the principles of natural justice. Although the court held that the rule which obliges the giving of reasonable notice to an accused person of the charge brought against him had not been observed the learned judge went on to say that the mere fact that an accused person has not in the particular case been given formal notice of all the matters in which his conduct is to be called in question did not necessarily entitle him to contend successfully that the proceedings were not conducted in accordance with natural justice. The learned judge relied in this regard upon a passage from the judgment of Tucker, L.J. in Russell v. Duke of Norfolk^(3). That passage is of interest on the present objection not only because it lends support to the view that the failure to bring all matters in issue to the attention of the accused does not necessarily defeat natural justice but also because it disposes of another complaint made in the same connection. One of the objections made by Mr. Sherrard to the manner of the proceedings at the original inquiry in this case was that having heard some cvidence from his client and from the jockey and the trainer the Stewards conferred together and then announced that there was a case to answer. Rule 131(1) was then read to the plaintiff and he was asked (together with the others) whether he had any further evidence to offer. But this is precisely what appears to have happened in Russell's Case⁽³⁾ in which the plaintiff was a horse trainer whose horse was found to have been doped and his licence to train consequently withdrawn by the Stewards of the Jockey Club. The second answer to this objection is severely factual. On the record it appears to me quite unrealistic to suggest that Mr. Ho was not well aware, at least at the point when the rule was read to him, what the nature of the charge against him was. Shortly before the verdict of the Stewards was announced he was asked once again whether he had any further evidence to give. The corrected transcript in English of his reply is as follows:-

"Regard the rule you have just mentioned, there is something I want to ask; the meaning of the rule relates to anyone who wishes to prevent or not to allow the horse to run on its merits. To my mind, there is absolutely no possibility of my contravening this rule. There is no reason for me to do so. I don't know the jockey. I don't know his circumstances. That is what I point out and I object."

That is scarcely the statement of a man who believed that the only suspciion attaching to him related to his failure to superintend the behaviour of his jockey. It was also suggested that, being unrepresented, the Stewards should have invited him to ask questions of the jockey and the trainer or of the Stewards themselves. There might be some point in that observation if the plaintiff had been young and inexperienced and if the record showed that he had been in any way overwhelmed or inarticulate in the presence of his accusers. In fact I feel confident that from the very moment he was informed that he was to appear at such inquiry into the riding and running of the horse, Mr. Ho, an experienced race-goer and horse-owner of more than twenty years standing, must have been well apprised of the possibility that serious charges might be made which would involve him.

8. The question whether the Stewards were bound to hold an inquiry in the first instance is an interesting one and the authorities are not, to my mind, wholly certain. In Russell's Case⁽³⁾ which is in some respects very similar upon its facts to the present case, the relevant rule did not oblige the holding of an inquiry but an inquiry was held. To the objection that that inquiry had been held in a manner which breached the rules of natural justice, Tucker, L.J., following the opinion of Lord Goddard, C.J. in the court below, could find nothing in the implied contract between the plaintiff and the Jockey Club which obliged the holding of an inquiry. He therefore took the view that when the Stewards, as a labour of supererogation, did hold an inquiry they were not to be bound within the limits of any supposed rules of natural justice. Asquith, L.J. and Denning, L.J. however both took the view that such an inquiry was necessary and when held must be held in conformity with these well-known principles. All three learned judges however came to the conclusion that there had in any event been no breach of those principles.

9. In Beale v. The South Australian Trotting League (Incorporated)⁽⁴⁾, a case which is in some respects startlingly similar to the circumstances in the present case and to which I must return later for it constitutes the great counterpoise upon the defendant's side to the weighty authority of Lee v. The Showmen's Guild of Great Britain⁽¹⁾Mr. Sherrard's principal support, the act of the officials of the league, which closely corresponds to the act of the Stewards in the present case, was regarded by all three judges in the Court of Appeal, including the Chief Justice, as having been primarily of an administrative or executive nature. They held that an inquiry was not strictly speaking necessary but that, in any event, nothing had been done by the officials who held the inquiry which could be regarded as a breach of the rules of natural justice. As I have indicated, Beale's Case⁽⁴⁾ appears to me to be of the very greatest importance but its importance lies principally in its relation to the argument advanced under the second of the two grounds upon which the plaintiff's case rests. So far as this question of natural justice is concerned, all the substantial features of that objection appear to me to be well-covered by what was said by Tucker, L.J. in Russell v. Duke of Norfolk⁽³⁾ In that case the Stewards, upon becoming aware of circumstances which were prima facie suspicious took a course which was markedly similar to that taken by the Stewards of the Jockey Club in the present case. At page 117 the learned judge said:-

"It seems to me that, having got the analyst's certificate, the Stewards have to consider, first, whether the horse has been doped and, if it has, it may well be that unfortunate consequences may follow to the trainer, however personally blameless he may be in the matter it is, however, right and proper that he should be given an opportunity of attending the inquiry and giving his explanation. It does not seem to me that at the outset there is necessarily any particular charge made against the trainer. The horse is said to have been doped. The Stewards have evidence which satisfies them that there is a prima facie case of doping. They require the trainer and the owner to attend the inquiry and to give an explanation. If in the course of that explanation it is made manifest that there has been negligence or misconduct, a specific charge then emerges, and that is exactly what happened in the present case."

That also is what happened here. A little later in his judgment, Tucker, L.J. said (page 118):

I might indeed add that in none of the cases to which I was referred could the officials performing the functions of the primary inquiry be said to have so closely conformed their conduct to the formal requirements of a court of law as did the Stewards in the present case. It is perhaps an ironic result of that punctilio that counsel was able to parse and analyse the record of their proceedings as he did and to suggest that having gone thus far they might have gone all the way with the lawyers.

10. In the result, while I am of the view that it was essential to hold an inquiry, I am unable to agree that anything in the manner of their holding it showed that the Stipendiary Stewards fell below that standard of fairness which is implied in the principles which I have been considering. If counsel will forgive me one is reminded of Dr. Johnson's rejoinder to a criticism which he considered unfair: "Sir, here is a man who is six feet tall and you complain of him that he is not seven!"

11. The second and main point for the plaintiff is concerned with the contention that whether or not the rules of natural justice were observed the officials of the defendant club in finding the plaintiff guilty as charged acted in breach of those written rules which for substance of the contract between the club and its members and that thus the administrative actions which followed thereon: the suspending of the plaintiff (and of his horse) and his temporary expulsion from membership, are void as ultra vires the powers conferred upon them by the rules. put most simply the contention is that there was no evidence upon which the Stipendiary Stewards in the first instance or the Jockey Club Stewards upon the appeal could have formed the opinion that the plaintiff had been a party to causing the horse "Seven Good" to run in a manner which was below its merits upon the day in question in Race 137.

12. The basic facts are these. The Royal Hong Kong Jockey Club is an association limited by guarantee. It was incorporated under the Companies Ordinance in 1930 under the style of The Hong Kong Jockey Club. Amongst its principal objects are the promotion of the sport of horse and pony riding in all its branches; the upkeep of the race course, training track and stands at Happy Valley and the carrying on of the business of a social and racing club. In fact it is a multi-million dollars industry exercising a total monopoly over horse-racing in the Colony and enjoying a huge turnover in profits each year a fair proportion of which are diverted to the service of social, sporting and charitable ends of many different kinds. Its membership is very large. The attendance at its race track during the season is as constant and as numerous as one would expect of a thriving community in a region where the laws of chance and the principles of private enterprise have, from time immemorial, exercised an exceptional fascination upon the inhabitants. Although it affords facilities of a purely social nature to its members it would be idle to regard it in the same light as one would any ordinary private members club established for purely social purposes. It is flourishing, powerful and respected and its activities attract widespread popular attention.

13. It is common ground between the parties to this dispute that the Articles of Association of the club and the Rules of Racing and Instructions issued by the Stewards of the club embody the principal contractual conditions regulating the relationship of the club with its members. Rule 131(1) of the Rules of Racing is as follows:

"Every horse which runs in a race shall be run on its merits, whether its owner runs another horse in the race or not. When in the opinion of the Stewards a horse has not been run on its merits they may disqualify the horse and may punish the rider, trainer, nominator, or any other person who in their opinion was a party to the horse not being run on its merits."

Article 32 of the Articles of Association is in the following terms:

"No person who shall make default in payment of stakes or forfeits or who shall have been party at any times anywhere to any fraud or malpractice connected with horse racing or who has been warned off any race course in the United Kingdom or any race course elsewhere under the control of any Racing Body or Association recognised by the Club shall be admitted to membership of the Club or to the premises of the club; and if any Member shall be discovered to have been or shall at any time become a defaulter or be guilty of any fraud or malpractice as aforesaid or of any breach of the Rules of Racing of the Club for the time being in force or be warned off any such race course as aforesaid, the Stewards of the Jockey Club shall forthwith enquire into the matter and if they are of opinion that such Member has been or become a defaulter or been guilty of any fraud or malpractice or breach of the Rules of Racing as aforesaid or has been warned off any such race course as aforesaid, they may either expel him from membership of the Club and warn him off the premises of the Club, suspend him from riding at Meetings of the Club for such period as they may determine, withdraw his licence to ride at Race Meetings of the Club and/or take such other action as they may think fit, but provided never-theless that if any Member shall be suspended from riding at any race course elsewhere under the control of any Racing Body or Association recognised by the Club, then the Stewards of the Jockey Club may, upon receiving notification of such suspension, automatically suspend such Member from riding at Race Meetings of the Club until the period of suspension by such Racing Body or Association terminates but such suspension shall be without prejudice to any other action (including the power to expel from the Club) which the Stewards of the Jockey Club after further enquiry may think fit to take. Any enquiry under this Article shall be conducted in the same manner as nearly as possible as provided for in Article 35."

Article 35 reads in part as follows:

Finally there are the appeal provisions which appear in the Rules of Racing. These give a right of appeal against any decision of any of the Stipendiary Stewards appointed under Rule 20 by the Stewards of the Jockey Club for the purposes of any Race Meeting. A procedure is laid down for lodging an appeal and Rule 158 is in the following terms:

It will be noted that while the Stipendiary Stewards acting under Rule 131 are not obliged to hold any inquiry and are not bound to any formal procedure in the steps which they take to arrive at an opinion, the Stewards of the Jockey Club hearing an appeal from such a decision are bound to the observance of certain rules. although the question of procedure is left in their discretion. More formal procedures still must be followed by Stewards of the Jockey Club dealing with a membership inquiry under Articles 32 and 35.

14. On the 3rd of January 1976 the Stipendiary Stewards on duty in the Ma Tau Chung Handicap (Race 137) - the 5th race of the day - were Mr. K.C. Stewart and Mr. A. Sheppard. They both were of the opinion from their observation of the race that Billy Lam, the rider of "Seven Good", who had started well but gradually had fallen back until he was trailing the field at the final straight, had conspicuously failed, in the racing phrase, to "pick up his horse" and ride the race out but had sat back making no effort either to use a whip or otherwise encourage the animal to a final spurt. Immediately after the race they approached the jockey and told him that they were enquiring into the running and riding of "Seven Good" and asked him some questions. He was then told to come back at the end of the last race which he did. At that stage the trainer, NG Chi-lam, was also summoned and the Stewards told them that they were adjourning the hearing until the 5th of January. On the 5th the plaintiff, Mr. Ho, the trainer, NG Chi-lam and the jockey, were present and a fairly lengthy hearing took place. In the course of it they were told either that there was a case for them to answer or else that they were going to be charged. Whichever it was, immediately thereafter they were charged under Rule 131(1) which was read out to them. They were asked if they understood the rule and they admitted that they did and were then asked if they had anything to say further in answer to that charge. They each made explanatory self-exculpatory statements and the plaintiff called a witness in his defence. The explanation given by the jockey, Lam, for the way in which he had ridden in Race 137 was that in a previous race (Race 89 held on a previous racing day) when riding the same horse he had used the whip with unfortunate results because the horse had lowered its head and moved towards the rail endangering the other horses in the race. The Stewards caused a film of Race 89 and also a film of Race 137 to be shown and it is accepted that in neither film did the jockey attempt to use his whip or use any other measure to encourage the horse. The trainer backed up the Jockey in this story and added the circumstantial detail that another jockey who had ridden in Race 89 had told him that he had seen Billy Lam apply the whip in that race. when the film of Race 89 was shown both the jockey and the trainer felt compelled to retreat to the curious position that what they had meant was that Billy Lam had intended to use the whip rather than that he had actually used it. Notwithstanding the evidence of the film the jockey continued to maintain that it was the peculiarity of the horse which had prevented him from using the whip properly and the trainer continued to maintain that this explaintion had been accepted by him after the race. It is notable that, at the inquiry, neither the jockey nor the trainer referred at all to the condition of the horse prior to the race as a predisposing factor in his poor performance.

15. Upon the appeal before the Jockey Club Stewards on the 12th of January the jockey appears to have taken a totally different line and he called evidence to show that the horse had not been fit for some time before the race. The trainer did not dissent from this. He too introduced additional matter. He repeated that he accepted the explanation originally given to him by Lam for the way in which the latter had ridden but, in a series of rather confused statements, which clearly were not very well understood by the Stewards, he put forward a suggestion that none of the plaintiff's horses had been very fit because of some not very clearly defined interference with their training schedules by the plaintiff's son who was himself a jockey.

16. By contrast throughout both the inquiry and the hearing of the appeal the plaintiff, in answer to repeated queries as to whether he had been satisfied with the running of his horse in the race, made it clear that he was distinguishing between the performance of the horse and the performance of the jockey. It was his case throughout that the horse "Seven Good" had never been in very good condition and had in fact only won one race in the course of its three racing seasons. Within the limits of its poor condition he was satisfied with its performance. So far as the performance of the jockey was concerned, it was the plaintiff's case that he, the plaintiff, was not experienced in questions of riding and therefore he was prepared to accept what the jockey had said in explanation of the manner in which he had ridden in the race on the 3rd of January. An attempt was made at the hearing to show that the plaintiff had contradicted himself on this matter but I am satisfied that that was not the case. The nearest he came to self-contradiction was when, towards the end of the appeal hearing, he was once more asked whether he was satisfied with the performance of "Seven Good" and he said that he was not. He explained that this referred to the way the horse had been ridden and made it clear that he no longer accepted the jockey's explanation because of everything he had seen and heard in the course of the inquiry and the appeal. He had by then seen the films of the races twice and in view of the alteration in the jockey's defence this scarcely seems unreasonable. As for the jockey and the trainer, there were other contradictions which were complained of in this regard and these were of substance. Thus, at the inquiry the jockey stated that he had been given no instructions by the trainer for that race. But the trainer said that he had instructed the jockey to get a good start and to apply the whip in the last quarter. At the hearing of the appeal the trainer said that his only instruction to the jockey was to try his best. As Mr. Ching pointed out, it would be strange if the trainer, knowing already of the peculiarity of the horse in relation to the use of the whip, and accepting that what Lam had said was true, would have given him instruction to use it nevertheless.

17. I do not think it is necessary to enter further into the details of this considerable body of evidence. It was canvassed minutely at the hearing before me and counsel for the defendant sought to show that the answers given by the plaintiff were in several particulars contradictory and unsatisfactory. For myself I have been unable to detect any positive contradictions or inconsistencies in his story presented in the inquiry or upon the appeal. Nor is there any point at which his evidence could be said to have been reliably contradicted by anything said by the other parties or witnesses. As I see it to the kernel of the case against him consisted in the following factors all of which must have been present to the minds of the Stipendiary Stewards, and of the Jockey Club Stewards upon the hearing of the appeal, and none of which, I think, could be said to be disputed by the plaintiff. Mr. Ho was a mature and successful business man; he had been a member of the Jockey Club since March 1952; he had owned horses since 1958; to the date of his suspension he has owned 31 horses in his own name and these have yielded him 549 starts 57 wins and 147 places; he has owned 5 horses in partnership and these have had 61 starts 6 wins and 22 places; His son Stephen Ho is a jockey licensed by the defendant club and he has had 72 wins of which 21 were on horses owned by the plaintiff and one with a horse owned by the plaintiff in partnership; Stephen Ho has had 190 places in races at the defendant club's race track of which 54 were on horses owned by the plaintiff and 10 on horses owned by the plaintiff in partnership; all of this is reasonably said to show that he is at least a very experienced race-horse owner and race-goer. Secondly, in March of 1973 when he purchased the horse "Seven Good" he had, in putting forward his subscription therefor, signed a written undertaking accepting full responsibility for the horse and promising in terms that if he was successful in his application he would personally manage the "subscription griffin" and would appoint a trainer as his authorised agent only to enter scratch or declare the horse and to start and to engage jockeys as necessary. Counsel points to the conditions on the back of this subscription form in particular Condition 11(c) which underlines the importance of avoiding censure by the Stewards for questionable running of the horse. Thirdly, notwithstanding this undertaking and his long experience the whole gist of the plaintiff's evidence at every stage, embodied in many statements of the like effect, was that he was not experienced in racing matters, knew very little about riding and trusted his trainer to handle everything. Fourthly, the fact that at no stage in the inquiry or upon the appeal had the plaintiff questioned the trainer or the jockey upon the riding or management of the horse or showed any concern, excitement or anger as to the nature of their evidence. This omission is said to be the more glaring in view of the fact that both the jockey and the trainer were caught out in what appeared to be untruths and were forced to alter their story having seen the films. Fifthly, and finally, it has never been contested that the Stipendiary Stewards were entitled to come to the conclusion that the jockey had indeed culpably and for no good reason failed to race the horse to the best of its ability. That as it seems to me is the final and irreducible substance of what might be called the indictment against Mr. Ho. The plaintiff in short had accepted the story of his trainer and his jockey and had gone on to assert that in any event such matters were beyond his competence and were for the Stewards to decide. These matters which are outlined principally in paragraphs 8 to 23 of the defence are said to constitute a body of evidence sufficient to rebut the suggestion that the officials of the Jockey Club exceeded their powers under the rules by forming an opinion against Mr. Ho upon no solid evidence. But Mr. Ching puts his point further. These matters, he says, are merely matters which show that there was evidence upon which they could form the opinion to which they came. That does not mean, he says, either that these were the only matters to which the Stipendiary Stewards resorted or even that they did actually resort to all or any of these matters. He points to Rule 131 and he says that two things are there left within the exclusive competence of the Stewards to decide as a matter of opinion. Firstly, whether the horse has been run upon its merits and, secondly, whether any other person was a party to the horse not being run on its merits. This is the very nub and centre of his argument for he puts the matter this far that that rule in effect give to the Stewards a power to deem; a power to which they are entitled in virtue of their long experience not only of horses and horse racing but of horse owners and trainers and jockeys and all the associated phenomena of human behaviour bearing upon the pursuit and enjoyment of that sport. Now it is not in dispute that so far as the first of those matters is concerned the Stewards are indeed the experts and no exception is taken to their conclusion as to the manner in which the horse was ridden. But the contention on the second question is a bold and intriguing one insofar as it assumes that powers have been expressly and legitimately conferred upon the Stewards to come to conclusions as to human conduct by ways not disclosed and through the exercise of secret knowledge which may result in findings which necessarily imply the occurrence of morally reprehensible or even downright criminal conduct. Before I consider the validity of that contention it is necessary to deal with a further point, raised in connection with the authority which stands principally against it -the case of Lee v. Showmens Guild of Great Britain v. ⁽¹⁾ What Mr. Ching says about that decision, in relation to the argument that the Stewards have acted ultra vires, is that the Stewards' opinion on both the questions left to them by Rule 131 is to be regarded in the same way as opinions resulting in the refusal of membership or exclusion from membership of private clubs on social, moral or other similar grounds which opinions the courts have always refused to inspect or interfere with. A good example is to be found in the old case of Dawkins v. Antrobus ⁽⁵⁾. The Jockey Club, he says, is such a social club and therefore the decision in Lee's Case⁽¹⁾ which deals with a trade guild has no application. Domestic tribunals, he says, are of various kinds. They may be set up under statutory bodies: they may be the creatures of trade or professional associations; they may be appurtenant to purely private social clubs and they are to be set off from true courts of law at one end of the spectrum and from mere family conferences at the other. It is true that in the course of his judgment in Lee's Case⁽¹⁾ Denning L.J. (as he then was) says at page 1181:

"To what extent will the courts examine the decisions of domestic tribunals on points of law? it is a new question which is not to be solved by turning to the club cases. In the case of social clubs the rules usually empower the committee to expel a member who, in their opinion, has been guilty of conduct detrimental to the club, and this is a matter of opinion and nothing else. The courts have no wish to sit on appeal from their decisions on such a matter any more than from the decisions of a family conference. They have nothing to do with social rights or social duties. On any expulsion they will see that there is fair play. They will see that the man has notice of the charge and a reasonable opportunity of being heard. They will see that the committee observe the procedure laid down by the rules, but will not otherwise interfere : see Labouchere v. Earl of Wharncliffe, Dawkins v. Antrobus. it is very different with domestic tribunals which sit in judgment on the members of a trade or profession. They wield powers as great, if not greater, than any exercised by the courts of law. They can deprive a man of his livelihood. They can ban him from the trade in which he has spent his life and which is the only trade he knows."

Now in my view it would be wrong to suggest the principles established in Lee's Case⁽¹⁾ are restricted wholly to cases in which actions of a club affect the livelihood of the individual concerned. In the same case Somervell, L.J. says (page 1180):

"I am also alive to the principle reiterated more than once that this court cannot be made a court of appeal from decisions of such tribunals. On the other hand, a power of expelling a member is a drastic power which in many cases, as here, may affect the plaintiff's livelihood, or reputation, There is, in my opinion, a distinction between cases where the decision challenged is under the rules based on the opinion of a committee on a matter which is primarily one of opinion, and those cases, such as the present, where the decision is, or should be, based primarily on the legal construction of words in a rule." (I have emphasized the words "or reputation" in that passage.)

Again in Pett v. Greyhound Racing Association Ltd.⁽⁶⁾ a trainer of greyhounds who was suspected of having doped a dog was bidden to an inquiry held by Stewards of a club and he claimed the right to legal representation thereat. He brought an action to establish his right against the association. He got an interlocutory injunction in his favour and upon appeal from that order the Court of Appeal found in his favour. Denning L.J. in his judgment stressed the fact that the plaintiff was facing a serious charge which involved both his livelihood and his reputation. The point at issue in Lee's Case⁽¹⁾ was whether the words "unfair competition" could cover the act attributed to the plaintiff. The court came to the conclusion that they could not. We are not in the present case concerned with the construction of words in a rule but we are concerned with the power of the court to interfere, in fitting cases, where drastic action has been taken by a domestic tribunal when it is alleged that there is no evidence supporting the action. Had the charge against the plaintiff in the present case been one of negligent failure to observe the terms of the undertaking and to oversee the proper running of his horse the opinion of the stewards could not have been challenged for a moment. Although if that had been the basis of their decision against him I would not have expected that he would have been dealt with as he was. No doubt a reprimand of the kind to which Mr. Sherrard drew my attention in the List of Racing Incidents for the 3rd of January given to another owner might have been thought appropriate. But it is made clear not only from the very wording of the charge and from the wording of the formal public notification of it thereafter and from the fact that equal penalties were imposed upon all three accused that what was alleged was conduct in the nature of a fraud. Mr. Ching does not deeply demur to that suggestion although he says the charge need not be regarded as going so far as fraud; he concedes that it must certainly involve some question of positive malpractice. There can be no doubt that a man dealt with as was the plaintiff in the present case must necessarily suffer gravely in his reputation. In addition there is the factor, also relied upon by Mr. Sherrard in this regard, that the effect of the decision was an interference with the plaintiff's proprietory rights, Interference with rights of property has always been a ground for inviting the intervention of the courts even as regards social clubs. Indeed at one time it seems to have been regarded as the only ground (See the comment of Denning, L.J. at page 1180 in Lee's Case⁽¹⁾). Clearly the courts have steadily advanced from that rather conservative position. The plaintiff's exclusion from membership and his suspension means that he cannot continue to run his horse or any of his horses and, indeed. I understand that he has got rid of most if not all of them. The same learned judge in Lee's Case⁽¹⁾ observed :

"A man's right to work is just as important, if not more important, to him than his rights of property. These courts intervene every day to protect rights of property. They must also intervene to protect the right to work."

More recently the courts have shown a disposition to intervene even where considerations of property, livelihood, reputation or contractual rights were not involved. In Nagle v. Feilden⁽⁷⁾ where the question at issue was whether the Jockey Club of Great Britain had acted capriciously and unfairly in refusing a trainer's licence to a woman who had trained race horses for many years, the Court of Appeal, allowing her appeal from the decision of a judge who had struck out her claim and dismissed the action, reinstated her claim and Salmon, L.J. at page 654 says :

"One of the principal functions of our courts is, whenever possible, to protect the individual from injustice and oppression. It is important, perhaps today more than ever, we should not abdicate that function."

Echoing the words of Denning L.J. quoted earlier one might ask whether the right to good reputation may not be more important for a person in the plaintiff's position even than the right to property. Thus as it seems to me the principles announced in Lee v. Showmens Guild of Great Britain⁽¹⁾ are fully available to the plaintiff in the present case. Where the question at issue is whether there was any evidence to support a decision of an administrative or executive nature it is clear that the courts will intervene to inspect that decision where no question of the rights of party under a contract has arisen. (Ashbridge Investments Ltd. v. Minister of Housing and Local Government⁽⁸⁾ and Coleen Property Ltd. v. Minister of Housing and Local Government and Another⁽⁹⁾.) In the present case we are concerned with the question whether the Stewards have acted within the ambit of powers given by the rules which formed the contract between the club and its members. Although we are not concerned, as was the court in the case of Lee, with the construction of particular words in the rules, if I am correct in what I have said already and if the principles which apply in the cases concerning statutory tribunals, trade associations and the like, where interference of livelihood is involved, may be applied to cases such as the present then the words used by Denning L.J. at page 1182 are very clearly in point :

"The cases show that, although Parliament has given a tribunal power to deprive a man of his livelihood for a particular cause, nevertheless the courts will intervene if there is a real substantial miscarriage justice with regard to him, and they will hold there is a miscarriage of justice if the facts adduced before the tribunal are not reasonably capable of supporting the charge made against him."

He had earlier said that he regarded the allegation of no evidence to mean that there was no evidence reasonably capable of supporting the finding. The question thus resolves itself to this: was there evidence upon which the Stewards of the Royal Hong Kong Jockey Club could reasonably have come to the conclusion that the plaintiff in the present case had been a party to the failure to run the horse upon its merits on the 3rd of January? Mr. Sherrard has reminded me of the many useful things said by the courts in England in cases such as Bater v. Bater⁽¹⁰⁾ and Hornal v. Neuberger⁽¹¹⁾ as to the standard of proof both in criminal and in civil cases. I keep in mind that it was said by Denning. L.J. in the former of those cases that :

"a civil court, when considering a charge of fraud, will naturally require a higher degree of probability than that which it would require if considering whether negligence were established. It does not adopt so high a degree as a criminal court, even it is considering a charge of a criminal nature, but still it does require a degree of probability which is commensurate with the occasion."

And Morris L.J. in Hornal v. Neuberger⁽¹¹⁾ pursuing the same theme remarks (page 978): "In some civil cases the issues may involve questions of reputation which can transcend in importance even questions of personal liberty". Mr. Ching, of course, denies that such principles have any application to the operations of the Stewards and suggests that the attempt to apply them is all part of the illegitimate approximation of this domestic tribunal to a court of law and of its opinions to legal findings. As I understand his argument it has two aspects or perhaps it would be better to say it is to be understood in a stronger and a weaker sense. He would not, I think, suggest that in forming their opinion on the question of who was a party to the improper running of the horse the Stewards were entitled to rely upon pure, blind hunch. But in its stronger sense his argument is that, because of their especial expertise, Rule 131 confers upon them in effect a right to deem-no doubt after due enquiry and consideration - that somebody has been a party to that malpractice. In doing that they may resort to a variety of matters which would not be regarded, necessarily, as evidence in a court of law. Such matters as their knowledge of the previous behaviour of the party accused; the performance of his horses, jockeys and riders generally; their knowledge of the kind of relationships that are normally maintained between owners, trainers and jockeys and the degree of communication that normally exists within those relationships. They are in effect experts upon privity in such matters and must be assumed to deem correctly even if they do not announce and identify every source of information available to them in forming their opinion. In its weaker sense his argument it that in any event there was ample evidence to justify that opinion although the matters identified in the defence are not necessarily an exhaustive catalogue of what moved the Stewards to it. In this regard he asked me to discount the point made for the plaintiff to the effect that it would seem very strange that there should have been a plan to "pull" a horse which had, on the evidence, been so consistently bad a performer as was the horse "Seven Good". He concedes that the motive for such an action is obscure but suggests that this day's racing may have been the culminating act in some long train of circumstances which finally drew down the suspicion of the Stewards. The difficulty I see in this argument, whichever of its aspects one regards, is this: if the Stewards are not to be permitted to act upon mere hunch and if, which is I think conceded, the courts are entitled to inspect their proceedings in order to see whether there was any evidence upon which they could reasonably have formed their opinion, how is the court to perform that task if it is confronted either with a pure "deeming" (coupled perhaps with the assurance that this had been done by responsible men) or else by a body of evidence available indeed for inspection but concerning which all that could be said was that this might have been what the Stewards relied upon? However I take the argument I do not find it persuasive to the view that the rule 131(1) gives any such power to deem to the Stewards. But the argument as to deeming is illuminating in one respect for, as it seems to me, inasmuch as it implies a right in the Stewards to form an opinion as a result of special expertise, Rule 131(1) does confer such a right as regards the first of the two matters there confided to their consideration. When they have said that the horse was not properly run, and it is conceded that they are bona fide in that opinion, and they have considered any explanation, then there is no power in the court to dissolve that decision upon an examination of the evidence. But it is quite otherwise with the second of the two matters left with them. The court will surely not leave a matter of such importance in relation to the reputation, property and well-being of a private citizen to be decided as it were wholly behind closed doors, more especially, when the results of that investigation, with all their unpleasant consequences, are published to the world at large. Yet such could be the case if no reasons at all were given for the opinion or if very inadequate reasons were given which were said to be only part of the total reasons I think therefore that Mr. Sherrard has legitimately queried the status of the matters pleaded in the defence. How are we to regard them? Are these the matters relied upon in forming the Stewards' opinion? Do they constitute some of those matters? Or was that opinion formed upon other grounds altogether? For my part I am satisfied that the defendant club must be held to its pleadings in rebutting the suggestion that the opinion was formed on the basis of no evidence or no reasonable evidence.

18. Thus, we come at last to consider the nature of that evidence. And in doing that it must be borne in mind that the charge against the plaintiff was indeed a grave one. However defined or described it involved at least an allegation of participation in a conspiracy of a disreputable kind. It is utterly at variance with the kind of participation which might have been alleged viz. participation by negligence. It is of some interest to note that the latter degree of participation was actually proposed as a secondary support to the argument of counsel for the Club in the interlocutory proceedings before the judge and it was, in my view rightly, rejected by him as a neat answer without substance. I have adumbrated above the content of what is said to be the evidence against the plaintiff at what I believe to be its fullest tally. The argument based upon it appears to me to be almost entirely an argument from silence, demeanour, suspicious economies and denials. I do not for a moment say that such matters may never be important and indicative, nor do I suggest that the Stewards were not entitled to have regard to the whole background of the racing scene and their knowledge of it. Indeed, they were bound to do so. The Stewards clearly disbelieved Mr. Ho when he said that he knew little about racing and riding (for I think he may fairly be interpreted as having said both). They were perfectly entitled to do so. I must say that his evidence gives the strongest impression, that, as Mr. Ching observed, the plaintiff seemed anxious to accept almost any explanation that his jockey and trainer would give him while dissociating himself as for as possible from any knowledge of the nature of their trade and the manner in which they performed it. That evidence, more especially in view of his personal undertaking to manage the horse speaks overwhelmingly for a dereliction, perhaps a gross dereliction, of his responsibilities. But can it be said to be satisfactory evidence that he either (a) told his jockey to pull the horse on that day, or (b) agreed with the jockey that that might be done or (c) was aware that that was about to be done and did nothing to prevent it? I can conceive that there may be a number of ways in which a man might be a party to a horse not being run upon its merits. Upon what the record shows, and perhaps upon a good deal less than that, there would be ample justification for the Stewards to come to the opinion that he was such a party through dereliction of duty. But the case from the outset has been put upon the basis that their finding was one of overt conspiracy to effect that particular wrong. Thus in the total absence of anything like direct evidence of such a conspiracy I would have had little hesitation in coming to the conclusion that the Stewards had exceeded their powers under Rule 131 had it not been for the decision of the Australian Court of Appeal in Beale's Case⁽⁴⁾ to which I shall come in a moment. I do not find much assistance in those cases such as R. v. Chapman⁽¹²⁾ and D.P.P. v. Buardman⁽¹³⁾ in which the courts in England have considered the effect which lies told by an accused person, whether outside the court or in the course of giving evidence, may have in assisting the prosecution to prove its case against him. I say so because the present case is not one in which a lie upon a specific matter, proved and brought home against the accused, is said to support other direct evidence against him upon the oharge. Rather is this a case in which the accused's denial of complicity in a specific act of conspiracy has involved an account of his behaviour not directly relevant to the question of conspiracy when that account has been disbelieved for good reason. The Stewards were saying in effect: "We do not believe that a horse owner and race-goer of your experience and long-standing having given the undertaking which you gave, and speaking from our own knowledge of what normally happens in such circumstances, would not in fact closely supervise the management and running of his horse. You were at the race meeting on this day, your horse was pulled. We do not believe that you always left everything in the hands of your trainer. We are satisfied that you must have given instructions for that to be done or else have been aware that such instructions were given and did nothing to prevent it".

19. I have noted above that the case of Beale v. The South Australian Trotting League (Incorporated)⁽⁴⁾ is in some respects startlingly similar to the present case. That is so; it is also in certain important ways strikingly different. The plaintiff was penalized under a rule very similar in terms to Rule 131 for having been a party to a horse, entered in a trotting race, not being driven on its merits. The Association, which appears to have been in a very similar position to the Royal Hong Kong Jockey Club as regards the sport with which it was concerned, employed Stewards to observe races and they had powers similar to the powers of the Stipendiary Stewards of the Jockey Club. Rule 391 of their Rules of Racing left in their care precisely the matters which are left in the care of the Jockey Club Stewards by Rule 131. The respondent on the appeal, Beale, was the owner of a horse which was observed by the Stewards to run in a suspicious way and they held an inquiry which, as in the present case, extended beyond the day of the race meeting. They found the driver of the horse guilty of not running the horse upon its merits and they found that the respondent had been a party to that. There was an appeal to an Appeal Committee which had powers very similar to the appellate powers of the Jockey Club Stewards in the present case. The appeal was dismissed. The driver and the owner were disqualified and suspended for a period of twelve months. The respondent took an action claiming declaratory and restraining orders similar to those claimed in the present case. He succeeded in that action and the League appealed. He had complained, as has the plaintiff in the present case, of a failure of natural justice in respect of the manner in which the inquiry was held and he said also that the evidence upon which the Stewards had relied was insufficient to implicate him. The trial judge had found that there was insufficient evidence upon which the Stewards could have found either that the appellant was a party to the pulling of the horse or even that the horse had been pulled. The Judge had formed a very adverse view of the evidence given by the Stewards on the hearing. Indeed it was complained that he seemed to have regarded the hearing as a re-hearing of the inquiry and had, to some extent, put the Stewards themselves upon trial to prove the validity of their findings. On the appeal, it is perhaps not surprising that the Appellate Court should have found for the League in so far as the trial Judge's opinion of the running of the horse was concerned. But the three judges who dealt with the case also rejected his finding that there had been insufficient evidence to implicate the respondent. There are expressions in the several judgments which suggest that the power of the court even to inspect the latter finding may be doubtful, nevertheless Chamberlain, J. did examine the evidence fully and came to the conclusion that it amply supported both the findings. Indeed he said that it was such that if it "had been put into proper shape it would have been sufficient to make out a prima facie case in a court of law." Nothing is said in any of these judgments to suggest that a court cannot inspect such evidence to see whether the complaint that it amounts to no evidence is justified and in view of the course taken by Chamberlain, J. it is evident that nothing of the kind was intended. Thus for the similarities. The differences, and they are grave, relate to the nature of the evidence thus inspected. The respondent was a man who had accumulated a fortune of one hundred and fifty thousand pounds by the age of 30 solely by betting on horse races. He would make bets of as much as a thousand pounds when he saw the chances were sufficiently good. He owned the horse in question. His trainer and driver, Webster, was a regular driver of that particular horse and was acknowledged to be a skilful and. experienced driver. At the inquiry one of the Stewards put his suspicions to the respondent in these terms:

"Only one thing that worries me in that respect is that when you don't bet on him he runs an ordinary race, and the night you do shovel it on he wins as he wants to, there's no trouble."

At the first interview with the Stewards, Webster, the driver, told them that the respondent had in fact bet upon his horse whereas the respondent's first answer to them, when he was called shortly afterwards, was that he had not. The Stewards were on the lookout for this particular horse on this occasion because of the information they had in relation to the investments made in the betting ring. The respondent was known to be a heavy and very successful backer. He explained the conflict between his evidence and that of his driver by saying that after he had told his driver that he was betting on the horse he became dissatisfied with the odds and convinced, from the position in which his horse had been drawn for the race, that it was not likely to win and consequently he had not laid any bet. This explanation was rejected by the Stewards who were men of great experience. They had seen Webster in action as a reinsman on many occasions and they were satisfied that, at a certain stage in the race, he had driven the horse with such skill after a bad start that he had manoeuvred into a position which gave him a good opportunity of winning; he gave it up by failing to use his whip and to adopt certain tactics which in the view of the Stewards were obvious and would have been likely to have yielded him victory. Despite this Beale, who was also acknowledged to have been a person of great experience in such matters, persistently refused to accept this version of the affair and maintained that his driver had driven perfectly throughout the race. The state of the odds shortly before the race started was such that it would have been unprofitable for him to back his horse for a place and his own habits made it more unlikely that he would have backed it. If, in order to back up his driver he told a lie about why he had not bet on his own horse that lie was one directly concerned with the substance of the conspiracy suspected by the Stewards. All of these circumstances would seem amply to justify the opinion of the appellate judge when he said:

"Whatever Webster's conduct was, the respondent knew what it was and fully associated himself with it."

20. In the present case we have, firstly, a horse which, even if it may not have been the least fancied horse in that race, was by common agreement one which had run very poorly throughout the course of three seasons. The jockey had ridden it on one previous occasion for the plaintiff but he was in no sense a regular jockey of the plaintiff and such evidence as there was seemed to suggest he was not very expert. The jockey in his grounds of appeal admitted to a long association with the trainer. Although he made it clear that he had never fancied his horse the evidence was that the plaintiff had placed a small bet upon it in this race.

There was one other difference of less importance perhaps than the factual differences, but certainly not negligible, between the present case and the circumstances in Beale's Case⁽⁴⁾. The appeal body in that case was a separate and special tribunal set up by statute and composed of professional lawyers. It is clear that Napier, C.J. attached great importance to this factor. In dealing with the argument as to natural justice he referred first to the fact that this appeal body was set up by Parliament as a safeguard to the individual against arbitrary, ill-considered action on the part of the Stewards. He went on to say:

"If there were no right to appeal it might be a different matter, but the parties right to natural justice' is safeguarded by an appeal to an independent and competent appeal committee ...."

When I set the circumstances of these two cases side by side I confess that it is the dissimilarities which I strike me most forcibly and I therefore cannot regard Beale's Case⁽⁴⁾ as a decisive authority against the plaintiff. The present case has been acutely and pertinaciously argued upon both sides and I cannot deny that I have found the decision a difficult one. In the end however I am satisfied that the defendant club must be bound to its pleadings and what is pleaded does not appear to me to amount to more than a somewhat tenuous suspicion against the plaintiff. Perhaps there are other matters, even other evidence, of which I am unaware put I cannot deal with the case otherwise than it has been presented to me. In finding as I do however I want it to be clearly understood that I do not say that the Stipendiary Stewards, nor yet the Jockey Club Stewards performing their appellate function, can only discharge the duties imposed by Rule 131(1) (or indeed any of the other rules) upon a basis of evidence which would be sufficient to satisfy a court of law, whether in a criminal or even in a civil case. I do not profess to lay down any particular standard which must be observed and I can find no such standard discernible upon any of the decided cases. I will say only that I do not think that mere suspicion unsupported by any showing of reliable information can be enough. I realise that there may well be cases when such information is available and for one reason and another the officials may be unwilling to ...(illegible) it or to announce it or to identify its source. I have no reason to suppose that the Stewards discharge the duties imposed upon them otherwise than honourably and with all due attention to the welfare of their members and of the public at large. Indeed, the papers in the present case persuade me that they do perform these functions both honestly and efficiently. I do not say that in performing this difficult task the Stewards are not entitled to rely upon their background knowledge and general experience and perhaps even upon private sources of information. But I do say that where their decision is challenged, as it has been here, in court in a matter of this gravity and where nothing appears upon the record more than has been shown here and no further evidence is adduced upon the trial, the question of the reasonableness of the decision, that is to say the sufficiency of the evidential basis presented, must remain a question for the court's interpretation and decision. I realise that in Beale's Case⁽⁴⁾ the learned judge (Chamberlain, J.) expressly relied upon the opinion of Dixon, J. in the case of the Australian Workers Union v. Bowen⁽¹⁴⁾ where at page 628 the latter appears to have held that where a tribunal of this kind has acted honestly, the courts are not concerned to examine the finding in order to see whether there was evidence Sufficient to justify a reasonable man in coming to the conclusion arrived at. With all respect to that authority however I prefer to rely upon the rationale of those propositions to which I have already referred from the decision in Lee v. Showmens Guild of Great Britain⁽¹⁾ The boundary between questions of opinion which are wholly within the competence of the officials of a members club to decide, in disciplining or penalizing its members, and findings which must be subject to the scrutiny of the Courts is not always an easy boundary to discern. But I would think it must become more obvious the closer the executive or administrative act advances towards the trial of issues at least analogous to criminal charges and the farther the Club itself retreats - through size and wealth and public concern from the ordinary connotation of a private members club. As Dixon J. points out rules of this kind rest upon a consensual basis. The member joins and accepts that the rules apply to him. But it would be straining the consensual presumption very far to assume that the member was assenting to the proposal that one of the rules entitled the officials of the Club to brand him publicly as a cheat and punish him accordingly on no showing stronger than suspicion fed from equivocal circumstances and secret sources of information or even of rumour. In charges of this kind there is a distinction between hard evidence and inference drawn from special knowledge and wide experience of "the way things are". Both are, no doubt, legitimate sources in the formation of a sound opinion. But it would be strange if the rules which provide for an appellate inquiry and an opportunity to allay suspicion should be interpreted so as to deprive the member of his opportunity to deal with whatever source of suspicion is principally relied upon to condemn him. If that which is disclosed is wholly inadequate by ordinary legal tests it would. in my view, be patently unjust to assume that the remainder - the body of the iceberg below the visible tip - was nevertheless composed of more substantial elements. For the reasons given therefore I think the plaintiff must succeed in this action and I hold that he is entitled to the orders which he claims. That must necessarily include the Ruling suspending him from membership of the Club and also the ruling suspending the horse "Seven Good".

Representation:

M. Merrard. Q.C. ,P yo & W. Har (P.C. Hoo & Co) for plaintiff

C. Hing. Q.C. & Aaklrai (J.S.M.) for appellant

(1) (1952) 1 All E.R. 1175

(2) (1956) 1 W.L.R. 833.

(3) (1949) 1 All E.R. 109.

(4) S.A.S.R. (1963) 209.

(5) (1881) 17 Ch. Div. 615.

(6) (1968) 2 W.L.R. 1471.

(7) (1965) 2 Q.B. 633.

(8) (1965) 1 W.L.R. 1320.

(9) (1971) 1 W.L.R. 433.

(10) (1950) 2 All E.R. 458.

(11) (1956) 3 All E.R. 970.

(12) (1973) 2 W.L.R. 876.

(13) (1974) 3 W.L.R.673.

(14) (1948) 77 C.L.R. 628.