Kevin Moses v. The Stewards of the Royal Hong Kong Jockey Club

HCMP001450/1981

Headnote

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Coram: Hon. Mayo J.

Date of Judgment: 19th November, 1981.

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DECISION

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1. This is an application by Mr. Kevin Moses, a jockey for interim relief by way of injunction to restrain the stewards of the Royal Hong Kong Jockey Club from disqualifying him under the Club's Rules from racing. Mr. Moses has applied for a Judicial Review of the stewards decision to suspend him from racing for six months and he has obtained leave from the Full Bench to apply for the relief he is seeking.

2. A preliminary investigation of Court diaries indicates that it is unlikely that this Judicial Review can be heard in the near future. It is the intention of the present application to minimise damage suffered by Mr. Moses by applying for an injunction to be granted which would enable him to race pending the determination of the Judicial Review.

3. I accept that if Mr. Moses is to succeed upon this application he must satisfy the Court first that he has an arguable or prima facie case on the Judicial Review and secondly that the balance of convenience lies in favour of my granting the injunction sought.

4. Mr. Rodway who was representing Mr. Moses referred to the case of Leeson v. General Council of Medical Education and Registration⁽¹⁾ as being authority for the proposition that a party conducting an investigation should not be both Judge and prosecutor. This case also established that there must be a due inquiry and the accused person must have notice of what he is accused. He must also have an opportunity of being heard and the decision must be honestly arrived at after he has had a full opportunity of being heard. He accepted however that the Court has no power to review the evidence of proceedings by way of appeal. Mr. Rodway placed particular reliance upon a passage which appears on page 390 of the report from Lord Justice Fry's dissenting judgment. This reads as follows:

"I think that it is a matter of public policy that, so far as is possible, judicial proceedings shall not only be free from actual bias or prejudice of the judges, but that they shall be free from the suspicion of bias or prejudice."

Mr. Rodway then took me through the transcript of the proceedings of the enquiry which had been exhibited to the affidavit Mr. Moses made in support of his application. If I understood Mr. Rodway correctly, his main complaint concerning the conduct of the enquiry was that the stewards and stipendiary stewards had seen fit to ask Mr. Moses a number of questions without informing him that proceedings were contemplated against him. He also suggested that an impartial reading of the transcript clearly indicated that the stewards and in particular the stipendiary stewards had prejudged the issue and had formed a bias against Mr. Moses.

5. Mr. Rodway particularly directed criticism towards the conduct of Mr. Marsh who was the Senior Stipendiary Steward who in a fact conducted this enquiry. He suggested Mr. Marsh had made it abundantly clear at an early stage in the proceedings that he had already satisfied himself of Mr. Moses' guilt.

6. Mr. Moses had been charged pursuant to Rule 131 Subsection 1 of the Rules of the Club which reads as follows:

"Every horse which runs in a race shall be run on its merits. 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."

Mr. Rodway submitted that there was nothing in the transcript of the proceedings to indicate that the stewards had taken any cognisance of the explanations which had been given by Mr. Moses during the course of the proceedings. Mr. Moses had put forward two explanations for the poor performance of the horse in the race which was the subject of the investigation. He had drawn the attention of the stewards to the fact that the horse Micky had been galloped by another jockey Mr. K.S. Ho on the previous day. The effect of this had been that Micky had run his race on the previous day and was accordingly not as fast as he should have been for the race. Mr. Moses had also drawn attention to the fact that Micky had been over-reached. This condition apparently arises in some horses when they are galloped very hard and their front legs come into contact with their rear legs. As a result of this one of the rear side legs of Micky had been scalped which means that skin had been removed from the leg thus explosing a painful flesh wound. Micky had been prone to this particular complaint in the previous season and this would inhibit Mr. Moses from galloping him too hard, particularly as he had been suffering from this complaint. There was no evidence that the stewards had seen fit to investigate this explanation or cause a vetinery examination to be undertaken upon Micky.

7. At the conclusion of the questions and answers Mr. Newbigging had asked Mr. Moses to retire while he had remained with the other stewards. Mr. Moses was then be called back into the room and informed that as a result of the evidence so far and the films the stewards were charging him with the offence I have earlier indicated. Subsequent to this Mr. Moses was informed that he had every opportunity to defend himself and that he could ask any questions of the stewards or anyone else or make such further explanations as he saw fit. Mr. Moses had then given a short explanations which in essence was a repitition of the explanation he had previously furnished and he had declined to call any witnesses.

8. What is important to note is that after the charge was read out to Mr. Moses the stewards made no attempt to outline the nature of the case it was attempting to establish against Mr. Moses was not afforded an opportunity of cross-examining any witnesses who were prepared to give evidence against Mr. Moses.

9. Mr. Rodway submitted that if he could establish that Mr. Moses had an arguable case the balance of convenience would lie in favour of granting the injunction. He referred to Regulation 192 of the Rules of the Club which provided that a jockey contracted out of his right to sue the Club in damages if it was established he had been wrongfully suspended from riding. This being the case he would be precluded from recovering any damages from the Jockey Club even if his application for a Judicial Review was successful. I have no doubt that if Mr. Moses is able to establish an arguable case on this application that the balance of convenience will lie in favour of an injunction being granted.

10. Mr. Ching who represented the Club based his opposition to this application on the ground that Mr. Moses did not have an arguable case on the Judicial Review and was bound to fail. He argued that the stipendiary stewards would possess a large reservoir of background knowledge both on racing affairs and in general and also in connection with particular horses and individual jockeys. The stewards would inevitably draw upon this knowledge in attempting to determine whether or not racing was being conducted in a satisfactory and fair manner. If any owner, trainor or jockey did not permit a horse to run on its merits a fraud was being perpetrated upon the public.

11. He did not see any objection to the procedure which had been adopted by the stewards in this investigation. The stewards had chosen to interview Mr. Kwan, the owner of the horse, Mr. Alan Chan, the trainor of the horse and Mr. Moses. During the course of questioning, they had indicated to him the nature of the complaint which was being made against him.

12. Mr. Ching referred to Regulations 156 and 157 of the Club's rules which contained provisions for appeals against decisions which had been made by the stewards. He observed that Mr. Moses had not seen fit to prosecute an appeal within the time provided for this. He did not however, if I understood him correctly, argue that such failure precluded Mr. Moses from even arguing that he was entitled to a Judicial Review.

13. The provisions relating to applications for Judicial Reviews are contained in Order 53 of the Rules of the Supreme Court. It was clear from this order that if Mr. Moses was to have any prospect of succeeding upon his application he would have to establish as a fundamental principle that the stewards had acted with bias and prejudice. This was essential to establish that there had been a breach of the requirements of natural justice. The role of the stewards in conducting an enquiry was referred to in some detail in the case of Calvin v. Carr⁽²⁾, a passage appears on page 596 of the report on this case which reads as follows:

"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 the 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."

14. Mr. Ching argued that the scope for intervention by the Court was extremely narrow. In support of this he cited the case of Maclean v. The Workers' Union⁽³⁾. It was clear from this case that the relevant question was not whether the Court considered the conduct of the defendants to be fair and just but whether the case was one in which the Court has power to interfere. There must be due enquiry. The accused person must have notice of what he is accused. He must have an opportunity of being heard and the decision must be honestly arrived at after he has had a full opportunity of being heard. Any domestic tribunal is bound to act strictly according to its rules and is under an obligation to act honestly and in good faith. The question of good faith is critical. Mr. Ching submitted that the burden of establishing that there had been mala fides lies with Mr. Moses. With respect I think that this correct. It is significant to note from the papers which have been filed in support of this application that they do not contain any allegation that any of the stewards or stipendiary stewards are anything other than honest man. It is therefore important to consider what is meant by good faith. This question was considered in the case of Cannock Chase District Council v. Kelly⁽⁴⁾. In defining bad faith Megaw L.J. had this to say on page 6 of the report of this case.

"I would stress - for it seems to me that an unfortunate tendency has developed of looseness of language in this respect - that bad faith, or, as it is sometimes put, 'lack of good faith', means dishonesty: not necessarily for a financial motive, but still dishonesty. It always involves a grave charge. It must not be treated as a synonym for an honest, though mistaken, taking into consideration of a factor which is in law irrelevant."

Mr. Ching argued most forcibly that Mr. Rodway had fallen far short of establishing that any steward or stipendiary steward had been dishonest or therefore acting with a lack of good faith. This being the case and in accordance with the principle propounded in Maclean v. The Workers' Union⁽³⁾ it was not open to the Courts to interfere with the actions of the stewards in conducting the enquiry against Mr. Moses. I am satisfied that Mr. Ching has correctly stated the law. Equally I am satisfied that the circumstances when the Courts can interfere with the findings of a domestic tribunal are severely circumscribed. This view of the matter is also borne out by the case of Beale v. South Australian Trotting League (Incorporated)⁽⁵⁾. This case involved a very similar situation to the present case where the owner of a horse appealed against the decision of the steward's committee of a trotting club against their ruling that a horse had not been permitted to run on its merits. The owner alleged that the decision of the stewards and of the appeal committee were arrived at contrary to natural justice and the rules of the League. He claimed a declaration that the disqualification of himself and his horse was void and of no effect. The Court was not prepared to intervene as there had been no breach either by the stewards or the appeal committee of the requirements of natural justice or of the rules of the League.

15. There is no doubt in my mind that Mr. Moses faces a formidable task in establishing that a case can be made out that the stewards of the Jockey Club were biased and failed to observe the requirements of natural justice or the rules of the Club. However as submitted to me by Mr. Rodway all that Mr. Moses is required to do on the present application is to make out an arguable case. Mr. Rodway did not attempt to prepare a detailed submission of the case he will be presenting on his application for a judicial review and indeed it would have been excessive for him to do so. He did however refer to a number of passages in the transcript of the proceedings of the enquiry which do appear to be very much less than satisfactory. I am inclined to agree with Mr. Rodway that a number of the passages he referred to clearly indicate that the stewards and in particular Mr. Marsh had already made up their minds that Mr. Moses had been guilty of failing to allow his horse to run on its merits. However in my view there is an even more basic objection to the proceedings which were conducted by the stewards. I accept that it is in no way reasonable to expect proceedings of this nature to resemble formal legal proceedings. Notwithstanding this there are basic principles which must be adhered to. I am doubtful whether the stewards even appreciated themselves when they were making investigations and when they were conducting the enquiry. The first 26 pages of the transcript of the so called proceedings relate to enquiries and investigations which were being apparently undertaken by the stewards. Mr. Moses was required to attend before the stewards together with Mr. Chan, the trainor of the horse and Mr. Kwan, the owner of the horse. They were all informed by the Chairman that the stewards were conducting an enquiry into the running and riding of Micky in race No. 9 and that the Senior Stipendiary would like to ask a few questions. None of the stewards at this preliminary stage advised Mr. Moses or the others what the enquiry related to. Mr. Ching during the course of his submission made much of the fact that Mr. Moses was an experienced jockey and was no stranger to the enquiry room. Notwithstanding this I do not see how Mr. Moses could have known or realised the seriousness of the proceedings which were to be conducted. In addition to this he had no knowledge of the nature of any complaint which might be levelled against him. For example, the complaint might have related to careless riding. It was however very clear as the enquiry proceeded that the complaint which was being investigated by the stewards related to his not allowing Micky to run on his merits.

16. The stewards continued to ask a number of questions of Mr. Moses and they did not give any definite indication whether or not they accepted any of the explanations he was attempting to make. This process continued for some time and the stewards then indicated that they had heard enough. The three men then withdrew from the room. Mr. Moses was then invited to return to the room and he was informed that as a result of the evidence so far and the films the stewards were charging him under Rule 131 Section 1 of the rules with the offence I have earlier referred to. It is quite clear from a perusal of the transcript of this enquiry that the stewards regarded the investigative process as being an integral part of the hearing. It is certainly arguable that by the time Mr. Moses was informed that he would be charged under Rule 131(1) the stewards had already made up their minds that Mr. Moses was guilty of this offence. Even if it can be argued that the stewards did not manifest bias prior to the charging procedure it would be difficult to maintain that they had not already made up their minds at the time when the formal enquiry commenced, that is after the charge was laid. Having regard to this I accept that Mr. Moses has on this application satisfied me that he has an arguable case. I have already indicated that I consider that the balance of convenience lies in favour of my granting the injunction sought and this being the case I order that an injunction will issue in the terms of the relief sought in the originating notice of motion. I will hear the parties on the question of costs.

Representation:

Mr. G. Rodway & Mr. G. McKay for Applicant

Mr. C.Ching & Mr. A. Sakhrani (J.S.M.) for Respondent

(1) 1889 43 Ch. D. 366

(2) 1980 A.C. 574

(3) 1929 1 Ch. 602

(4) 1978 1 WLR 1

(5) 1963 S.A.S.R. 209