Re The Royal Hong Kong Jockey Club

HCMP001635/1982

Extent to which right to work can be contracted away - Rules of Natural Justice. - Extent to which a body such as the Royal Hong Kong Jockey Club is required to give reasons why it refuses to renew a jockey's licence. - Extent to which such a body is required to make available all information which is in its possession relating to the matters in question. - There must be sufficient evidence available to a Tribunal before it is entitled to make a decision adverse to a party appearing before it.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Mayo.

Date of Hearing: 4, 5, 6 and 7 October 1982

Date: 15 October 1982

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JUDGMENT

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1. This originating summons has been taken out by Mr. Peter Miers who is a professional jockey against the Royal Hong Kong Jockey Club. Mr. Miers, who is an Australian, has been racing in Hong Kong since 1971 which was the year when professional racing was introduced to the Colony. Under the Rules of the Royal Hong Kong Jockey Club (hereinafter referred to as the Jockey Club), a jockey has to obtain from the Licensing Committee of the Jockey Club a licence permitting him to race which is renewable annually. On the 26th of April 1982 Mr. Miers, together with 5 other jockeys, received a letter from the Jockey Club informing him that doubts had been identified as to his record and that if it was his intention to apply for a licence for the next season, that is the 1982/1983 Racing Season, he had to attend before the Licensing Committee on the 11th of May 1982 at which he would be asked to explain his past record and give reasons why his application for the renewal of his licence should be approved. He received a further letter dated the 1st of May which enclosed particulars of his results in races and his disciplinary record. Mr. Miers attended before the Licensing Committee on the 11th of May and presented to the Members of the Committee an eight page memorandum which he had prepared, which set out his reasons why he considered that his licence should be renewed. After a short hearing the Committee informed him that he would be advised in due course whether his application had been approved. On the 12th of May, Mr. Miers received a letter informing him that it was unlikely that his application would be favourably considered and he was invited to consider carefully whether he intended to proceed with his application. Notwithstanding this, he lodged an application for a licence for the coming season. On the 20th of May he received a letter from the Racing Secretary of the Jockey Club which read as follows:

"Jockey Licences 1982/1933 Season

Your application for a jockey's licence for next season has been considered by the Licensing Committee.

In the opinion of this Committee the results you have achieved in the current season together with your record at the start, to which your attention has been drawn on more than one occasion, indicate that you are no longer up to the standard this Committee believes it is entitled to expect of an expatriate jockey. It is, therefore, decided that your application for a licence for the season 1982/1983 should be rejected and accordingly your licence fee is returned herewith.

You have the right of appeal to the Stewards of the Jockey Club under Rule 156 of Rules of Racing, and should you wish to exercise this right, Notice of Appeal must be given to me in writing by 12 o'clock noon, Monday the 24th of May 1982."

2. Mr. Miers lodged a Notice of Appeal as was required and an appeal Lasting three days was heard in July. The appeal was heard by Stewards of the Jockey Club and was presided over by Mr. Sandberg the Chairman of the Stewards. Mr. Henry represented Mr. Miers and three other jockeys who were in a similar situation. On the 23rd of August 1982 the Stewards of the Jockey Club delivered their decision on the appeal and Mr. Miers' appeal and that of two of the other jockeys was dismissed.

3. In this application, Mr. Miers is seeking a declaration that the Jockey Club's decision not to renew his licence is void for the reasons which are set out. Mr. Miers also seeks an order that the Jockey Club should renew his licence forthwith and he also claims damages which should be assessed. Mr. Biers put forward five grounds in support of his application. They are as follows:

4. Mr. Henry who was representing Mr. Miers in this application submitted that this case raised a number of important issues. First it was a matter of importance to Mr. Miers. He is presently aged 39 and wishes to continue his racing career in Hong Kong. He was an excellent jockey who enjoyed the support of his trainer and the owners of horses riden by him. The effect of the Jockey Club's decision not to renew his licence was to deny him the right to work. Secondly the case raised a number of fundamental issues on human rights. These included the right for trainers and owners to have freedom to choose who should work for them. Thirdly, racing in Hong Kong should be administered fairly. If this was not seen to be the case, the best jockeys would be discouraged from coming to Hong Kong if they thought that they were likely to submit themselves to unfairness. Mr. Henry also referred to the fact that the Jockey Club has in effect monopolistic powers and as is evidenced from a perusal of the Rules of the Club they enjoy draconian powers. This being the case it was a matter of particular importance that the courts should ensure that the rights of individuals were adequately protected from injustice. It was clearly not the case that the Jockey Club should be able to argue that simply because jockeys and other persons involved in racing had agreed to be bound by the rules of the Club that it should be placed above the law.

5. One of the issues which has to be explored in the present case is the extent to which it is open to the courts to review a decision of a body such as the Jockey Club. In this connection the first case referred to by Mr. Henry was the case of Nagle v. Feilden and Others ⁽¹⁾. This case was referred to by Mr. Henry in support of his proposition that where a person's right to work is called in question the courts can intervene. This case was also a Jockey Club case. It was an English case and the Jockey Club there had refused to grant a trainers licence to the plaintiff who was a woman on the ground that she was a woman. At page 644 of the report on the case Lord Denning differentiated between the situation which pertains to a social club on the one hand and an association which exercises a virtual monopoly in an important field of human activity on the other. Lord Denning had this to say on page 644 of the report.

"The common law of England has for centuries recognised that a man had a right to work at his trade or profession without being unjustly excluded from it. He is not to be shut out from it at the whim of those having the governance of it. If they make a rule which enables them to reject his application arbitrarily or capriciously, not reasonably, that rule is bad. It is against public policy. The courts will not give effect to it."

This view of the matter was also supported by Lord Salmon on page 653 of the report.

"Quite apart from social clubs, there are monopolistic associations, such as trade unions, the Stock Exchange and the Inns of Court which control certain trades or spheres of human activity in which no man can earn his living unless he is admitted to membership of the association. In such cases the question arises as to a man's right to work or, more precisely, his right not to be capriciously and unreasonably prevented from earning his living as he wills. There is no doubt that such associations may lay down such minimum qualifications for admission as they in their discretion consider necessary for the protection of the public and for the protection of their trade or profession, Rex v. Askew ⁽²⁾. Nor do I think they need ascribe any reasons for refusing to admit any candidate. If, however, it can be shown from the reasons which they may give, or from other sources, that a candidate has been capriciously and unreasonably refused admission, it is certainly arguable that the law will intervene to protect him: see Weinberger v. Inglis⁽³⁾."

This principle applies notwithstanding the fact that a party may have contracted away his right. Lord Salmon dealt with this in a passage appearing on page 655 which read as follows:

"The courts then afforded protection to a man against an unreasonable restraint upon his right to work even though he had bargained that right away. I should be sorry to think that since those days we have grown so supine that today the courts are powerless to protect a man against an unreasonable restraint upon his right to work to which he has in no way agreed but which a group with no authority, save that which it has conferred upon itself, seeks capriciously to impose upon him. I certainly refuse to believe that it is not even arguable that in such circumstances the courts have power to protect the individual citizen”.

The extent to which it is open to a court to go behind the rules of a club was considered by Lord Denning in Enderby Town Football Club Ltd. v. Football Association Ltd. (C.A.) ⁽⁴⁾. He had this to day on page 606 of the report.

"A preliminary point arises here. Has the court any power to go behind the wording of the rule and consider its validity? On this point Sir Elwyn Jones made an important concession. He agreed that if the rule was contrary to Natural justice, it would be invalid. I think this concession was rightly made and I desire to emphasise it. The rules of a body like this are often said to be a contract. So they are in legal theory. But it is a fiction - a fiction created by the lawyers so as to give the courts jurisdiction. This is no new thing. There are many precedents for it from the time of John Doe onwards. Putting the fiction aside, the truth is that the rules are nothing more nor less than a legislative code - a set of regulations laid down by the governing body to be observed by all who are, or become, members of the association. Such regulations, though said to be a contract, are subject to the control of courts. If they are in unreasonable restraint of trade, they are invalid."

6. I accept the validity of Mr. Henry's contentions. Mr. Henry went on to argue that not only were the courts entitled to intervene in such a matter but also Mr. Miers was entitled to a fair hearing and to be protected by the rules of natural justice. The first requirement of a fair hearing was the right to be heard. There can be no doubt that Mr. Miers had an opportunity of being heard both at the hearing before the Licensing Committee and on the appeal before the Stewards. The next requirement is that reasons must be given for any decision which is taken. The authority for this is the case of Breen v. Amalgamated Engineering Union and Others⁽⁵⁾. At page 190 of the report Lord Denning said:

"Then comes the problem. Ought such a body, statutory or domestic, to give reasons for its decision or to give the person concerned a chance of being heard? Not always, but sometimes. It all depends on what is fair in the circumstances. If a man seeks a privilege to which he has no particular claim - such as an appointment to some post or other - then he can be turned away without a word. He need not be heard. No explanation need be given. But if he is a man whose property is at stake, or who is being deprived of his livelihood, then reasons should be given why he is being turned down, and he should be given a chance to be heard. I go further. If he is a man who has some right or interest, or some legitimate expectation, of which it would not be fair to deprive him without a hearing, or reasons given, then these should be afforded him, according as the case may demand. The giving of reasons is one of the fundamentals of good administration."

There are further requirements of natural justice. One of them is that all of the information which is available to the tribunal must be made available to the person appearing before for it. They must be given an opportunity of considering it and correcting it where this is possible. This requirement was dealt with in the case of B. Surinder Singh Kanda v. Government of the Federation of Malaya ⁽⁶⁾. The principles laid down in this case can be seen at page 337 of the report.

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him. And then he must be given a fair opportunity to correct or contradict them. This appears in all the cases from the celebrated judgment of Lord Loreburn L.C. in Board of Education v. Rice & Others ⁽⁷⁾ down to the decision of their Lordships' Board in Ceylon University v. Fernando ⁽⁸⁾. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing."

This principle was extended even further in the case of Regina v. Deputy Industrial Injuries Commissioner. Ex parte Moore. ⁽⁹⁾ . This case involved a claim being made by Miss Moore in respect of an industrial injury she had received. The Deputy Commissioners hearing the claim had referred to two reports which had been prepared by un-named medical practitioners in relation to another case. The Commissioners who had been acting in good faith referred to these reports without affording Miss Moore an opportunity to make representations in respect of them. At page 490 of the judgment, Lord Diplock stated that the Deputy Commissioner had to:

7. Another case which was considered in this connection was the case of the Board of Education v. Rice and Others ⁽⁷⁾. This was a case involving duties which were exercisable by a local Board of Education and its duty to hear and determine questions in a fair manner. On page 182 of the report, Lord Loreburn had this to say:

"In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. Provided this is done, there is no appeal from the determination of the board."

8. I have attempted to deal very shortly with the submissions which were made by Mr. Henry on the requirements of natural justice. Mr. Henry went on to argue that the Jockey Club had fallen far short of these requirements in their treatment of Mr. Miers. The complaints he made extended to both the initial hearing before the Licensing Committee and to the Stewards Appeal. One of the difficulties he encountered was in ascertaining even now the true reasons why Mr. Miers licence had not been renewed. As I have previously stated the Stewards did give written reasons for their decision. Unfortunately I can sympathize to a large extent with most of the criticisms Mr. Henry has made of these written reasons. Very little or no attempt has been made by the Stewards to analyse any of the evidence which was placed before them on the appeal. Mr. Miers called a number of witnesses who gave evidence on his behalf and who expressed opinions on various matters germane to the issues being considered. Very little attempt has been made to weigh this evidence and determine whether it has been accepted. One of the jockeys, Mr. Burnett was successful in his appeal. It is not evident from the reasons which were given why he was successful and the other three jockeys were unsuccessful. So far as Mr. Miers is concerned the only reason given for dismissing the appeal was his record at the start of races and the fact that he was no longer considered to be up to the standard which the Stawards believe they are entitled to expect of an expatriate jockey.

9. There had been complaints concerning slow starts. On the 27th of April 1980, Mr. Miers had been required to furnish an explanation for a slow start in a race. At the time he was riding a horse called ''Honey Grove". It was the first time this horse had been raced. Mr. Miers had experienced difficulty with the horse and agreed that, there had been a slow start. However, since that time it had become known to Mr. Miers and other jockeys that Honey Grove was a difficult horse and Mr. Miers was not the only jockey to experience difficulty with him. Other jockeys had also had slow starts recorded against them while riding this horse. The next thing that Mr. Miers knew in this connection was when he was summoned to appear before the Licensing Committee on the 21st of October 1931. At that meeting he was informed that eight slow starts had been recorded against him out of thirty-one races. Mr. Miers found himself in some difficulty in dealing with these complaints in any detail as he was unable to recollect each of the occasions accurately without reference to previous records. The Chairman of the meeting put forward various reasons which might be attributable to these slow starts including a suggestion that Mr. Miers might have had ulterior motives. The Jockey Club have made it clear that they make no allegation of dishonesty against Mr. Miers. Mr. Miers had attempted to deal with the question of slow starts in the eight-page memorandum, he submitted to the Licensing Committee when he was applying for his licence for the 1982/1933 Racing Season. The main explanation he provided was that a number of horses riden by him had a bad record in this connection and it was unjust to blame him for this. He claimed that no other jockey could have done better with these difficult horses. A considerable amount of evidence was given in relation to slow starts at the hearing of the appeal. Lord Oaksey, a distinguished Racing Jorunalist, had expressed the opinion that it could often be the case that it would be beyond the control of a jockey to ensure that a horse did not get off to a slow start. He also said that it was not right to necessarily form an unfavourable judgment of a rider who had had a slow start as it might well be the case that the jockey was deliberately holding the horse back as a tactical move which may be perfectly valid. If the matter was being pursued it would be necessary to resort to the surveillance equipment and also obtain evidence from the starter of the race. Also an opinion should be obtained from the trainer of the horse to ascertain the characteristics of the horse. Mr. Burns, Mr. Miers' Trainer, gave similar evidence.

10. It is convenient to deal separately with the criticisms Mr. Henry makes in respect of the hearing before the Licensing Committee and the appeal before the Stewards. His main criticism, if I under-stood him correctly, of the first meeting was that none of the jockeys had any accurate idea of the nature of the allegations which were being made against them. It is true that each jockey had been supplied with some statistics concerning their performance and a copy of their disciplinary records. However, none of the men knew what type of yard-stick or criteria would be adopted in assessing the quality of their performance. Each interview took a set pattern. The Chairman read out a common statement to each of the men. Several criticisms were levelled against the statement which was read. They were informed that the meeting was a preliminary meeting when this was not the case. This may well have been prejudicial to Mr. Miers as he stated in his evidence in the appeal that he was under the impression that there would be a further opportunity for him to put forward representations. There was also a statement to the effect that the meeting did not intend to enter into any debate. Such a statement could hardly be said to be conducive of encouraging the jockeys to argue their case. Even worse than this the Chairman referred to the fact that if any of the jockeys did not proceed with his application, they would not suffer any possible prejudice arising from the fact that they had made an application and it had been refused. It is difficult to see how this statement could be read as anything other than a deliberate attempt to discourage the jockey from going ahead with his application.

11. One of Mr. Henry's objections to this hearing was that the jockeys were not supplied with details of the evidence against them. I do not see a great deal of merit in this criticism. There is no evidence that the Licensing Committee placed reliance on any documents or records which had not been made available to the jockeys. There is an overall paucity of information and we do not know how the Licensing Committee came to the conclusion it did. If there had been other evidence it may well be the case that a similar situation could have arisen as did in the cases of B. Surinder Singh Kinda v. Government of the Federation of Malaya. ⁽⁶⁾ and Regina v. Deputy Industrial Injuries Commissioner. Ex parte Moore ⁽⁹⁾. I do not think that it has been clearly established that the Licensing Committee was acting upon its own initiative and had information available to it which was not available to the jockeys. For reasons which I will give later in this judgment I do not propose attaching any weight to the criticisms Mr. Henry has made of the hearing before the Licensing Committee.

12. I will turn now to the criticisms Mr. Henry levelled towards the Appeal before the Stewards. There is a fundamental matter which goes to the root of the hearing. This relates to the basic issue of the function which was being performed by the Stewards. It appears to be common ground that the hearing was a re-hearing of the jockeys applications for licences. In the second paragraph on the first page of the reasons given for the decision the Chairman of the Stewards attempts to define the compass of the matters which were considered by the Stewards. For the sake of convenience, I will extract the relevant passage.

"In determining these appeals (which are by way of re-hearing) we have had the benefit of reading three - folders marks exhibits A, B and C, of hearing all evidence from the four appellant themselves, of hearing all evidence from numerous other persons, two of whom were put forward as expert witnesses, of reading written evidence submitted on behalf of the four appellants, of reading the exhibits which should put in evidence during the appeal, and reading the transcript of the hearings on the 19th, 21st and 23rd of July 1982."

The Stewards do not refer to any other evidence and certainly do not state they have taken into consideration any extraneous evidence which may have been available to the Licensing Committee. Mr. Henry argued that they would not have been entitled so to do. However, taking the Stewards' statement at its face value, they have confined themselves to the evidence they have referred to. This as I say is a matter of fundamental importance on account of the way in which the appeal proceeded. Mr. Miers gave evidence himself and called expert evidence of Lord Oaksey, a well known figure in racing, and Mr. Brian Killian, an Australian stipendiary steward of much experience. He also called his trainer, Mr. Burns, the owners of some of the horses he had riden and various other people connected in racing. All of these witnesses gave evidence and in general terms it could be stated that none of their evidence was seriously called in question by cross-examination. On the other hand, the Jockey Club did not call any witnesses to give evidence on their behalf. The effect of this was that there was a large body of evidence in favour of Mr. Miers and not very much evidence to support the Jockey Club's contentions. To put the matter another way, the only evidence was the evidence which had all along been available to Mr. Miers.

13. It is necessary to consider the consequences of this. Mr. Henry drew my attention to various passages in the transcript of evidence in the appeal where Mr. Ching had made submissions which were predicated upon a premise that the Stewards were entitled to take cognisance of matters outside the confines of the evidence which the Stewards stated was within their contemplation. I do not think that there is anything in this. What needs to be examined is the decision itself not the submissions which were made to the Stewards. It is often the case that an advocate will put forward submissions which are excessive and do not accurately support his case. What is important is the course of action which is adopted by the Stewards. For this it is necessary to again peruse their decision. So far as Mr. Miers is concerned the decision is almost devoid of reasons given in support of the decision which had been arrived at by the Stewards. To summarise the matter, they simply state that they see no reason to upset the decision of the Licensing Committee to the effect that Mr. Miers is no longer of the standard required for an expatriate jockey. They add to this that Mr. Miers received warnings concerning slow starts and was apparently insufficiently interested to note the stipendiary stewards reports which were made and that he had done nothing to improve his performance since the warning he received on the 21st of October 1981. This conclusion is not borne out by the facts. At that meeting it was stated that Mr. Miers had been slowly away in eight out of thirty or thirty-one rides. After subtracting three of these starts which the Licensing Committee accepted were attributable to difficult horses where other jockeys had experienced problems, it left a total of five races out of thirty or one out of every six rides. From the information available in the papers, it was a simple matter to reconstruct the position since that meeting. Mr. Miers had raced in 160 races after that. He was recorded as being slowly away in 22 of those races. If a deduction is made in respect of the races where Mr. Miers was riding the two most difficult horses, Honey Grove and Big Chief, the total number of slow starts is reduced to thirteen out of 160 races. It is not necessary for one to be a very competent mathematician to calculate that this proportion is almost twice as good as the proportion referred to at the meeting on the 21st of October. In this respect the Stewards were clearly wrong in their assessment of the position.

14. I now propose commenting in some detail upon the evidence which was deduced in support of the appeal. As an overall observation, I can only say that the evidence seemed to me to be fairly impressive. Lord Oaksey, a successful amateur jockey and now a distinguished journalist gave expert evidence concerning racing conditions and the general racing scene. He claimed to have knowledge of horse racing in a number of different countries. He agreed that it was an almost universal practice for licences to be issued to jockeys entitling them to ride on an annual basis. He went on to say that it was virtually unheard of for a licence to be refused simply on the grounds of the jockey's alleged lack of competence. If a jockey was unable to obtain a sufficient number of rides from trainers and horse owners, it may well be a different matter. However if they were able to command sufficient support, their licences would be renewed. Lord Oaksey also went on to express the opinion that it was quite wrong for a jockey to be assessed simply upon the basis of the number of races he had won or had been placed. It was obvious that a jockey's performance was dependent upon the quality of the horse he was riding and if the horse was not a good one there was no way in which the jockey could win. Lord Oaksey was also invited to express an opinion or the subject of slow starts. Here again Lord Oaksey said that it was a matter which was dependent upon factors which may be beyond the control of the jockey. It would be necessary to consider the characteristics of the horse being riden. It would also be necessary to obtain evidence from the starter of the race. In addition to this it would be desirable to make use of the various surveillance devices which were available such as cameras. As a matter of importance it would be essential to obtain the views of the trainer of the horse. Indeed it may well be the case that the trainer and/or the owner of a horse may give specific instructions to a jockey to make a slow start as a tactical device in a race. There were numerous factors which had to be weighed and it was by no means inevitable at any blame whatever should attach to the jockey. Lord Oaksay also expressed the rather interesting view that there were literally hundreds of jockeys in the United Kingdom who would be only too delighted to be able to achieve the standard of Mr. Miers as a jockey. He was familiar with standards of racing in Australia and he would be amazed if any of the four jockeys appealing against the decision of the Licensing Committee were incompetent.

15. Mr. Brian Killian, an Australian stipendiary steward, also gave expert evidence. I think that it would be true to state that his evidence was more orientated towards the four jockeys who were appealing as he had personal knowledge of them. However the evidence he gave on racing conditions was similar to that of Lord Oaksey. He corroborated Lord Oaksey's evidence that results were not necessarily a satisfactory guide to the competence or ability of jockeys. He made colourful reference to various jockeys he had known of great ability who had suffered periods of comparative lack of success. He was asked to express an opinion upon Mr. Miers professional ability. He expressed the opinion that Mr. Miers was amongst the best riders he had ever seen. He had seen Mr. Miers racing in Australia and had on several occasions seen him racing in Hong Kong.

16. Mr. Burns who is presently a trainer of horses in Hong Kong also gave evidence. Mr. Miers used to ride for him. He said that Mr. Miers had given him every satisfaction and that if he had the opportunity he would like to have the benefit of his services in future. During the last racing season his stable had encountered a considerable amount of misfortune and this had had the effect of reducing Mr. Miers' opportunities of winning races. He considered that Mr. Miers had achieved Good results in all the circumstances. Mr. Burns also gave detailed evidence on the subject of slow starts. He did not consider Mr. Miers to be blame worthy in this connection. He was aware of the fact that some of the horses which had been raced were difficult horses in the starting barrier. This was due to a variety of reasons. None of these reasons necessarily reflected adversely upon Mr. Miers.

17. Mr. Miers himself gave evidence at the appeal. He gave detailed evidence concerning the slow starts and described in some detail the characteristics of some of the horses which had presented problems. In particular he referred to the experience he had had with Honey Grove. This was the horse he had riden when he had been required to attend before the Stewards on the 21st of October 1981 and had received a warning. Honey Grove was a particularly difficult horse and other jockeys had had slow starts when they rode him. On account of this, he considered that the criticisms which had been levelled against him had not been justified.

18. A large number of other witnesses interested in racing in Hong Kong gave evidence on Mr. Miers' behalf. These persons included owners of horses who had retained Mr. Miers services. It also included racing journalists and other jockeys. I considered with interest all of this evidence. I think that it would be fair to state that there was a common theme throughout the evidence given in this connection. This was that Mr. Miers is a thoroughly competent jockey. Also he is a man of integrity. It was also a fairly common theme that Mr. Miers presence in Hong Kong as a Jockey was an asset to the racing scene. A considerable measure of disappointment was expressed as a result of the decision of the Licensing Committee.

19. It is important to bear in mind that none of the evidence I have referred to seriously challenged by the Jockey Club. As I have said the Jockey Club did not choose to call any evidence to contradict it. On the basis that the Stewards confined themselves to the evidence referred to in their decision it is perhaps difficult to see how they came to the conclusion they did. This difficulty is compounded by the fact that no attempt has been made to analyse the evidence which was deduced on the appeal or to give any detailed reasons in support of their decision.

20. Before making submissions on the substantive issues in this application, Mr. Ching made several preliminary objections. First he objected to the procedure which had been adopted by Mr. Miers in issuing an originating summons. Such applications were only appropriate where the facts are not in issue. This was by no means the case in the present application. Even if it was appropriate, a summons should have been issued for directions to enable the issues to be adequately ventilated. He then went on to make a number of criticisms of the summons including the grounds upon which the application was made. I do not consider that there is any merit in the criticisms which were made save that I agree with Mr. Ching that it is necessary for me to ensure that arguments are kept within the grounds as drafted and that I treat them in the same way as I would pleadings. The main significance of this is that no reference is made in the grounds of appeal to the hearing before the Licensing Committee. As the appeal before the Stewards was by way of re-hearing, this does not present formidable problems.

21. I have earlier in this judgment set out ground 1 in the summons. I have proceeded on the basis that it is not simply the rule that is attacked as being void. I have considered the main issue-as to whether the actions of the Jockey Club did accord with the principles of natural justice. I have also considered ground 3 to be sufficiently widely framed to enable me to consider the arguments which were advanced by Mr. Henry. It is however important that in considering this matter I have not in any way treated the application as being by way of an appeal against the decision of the Stewards.

22. On the basis that the Jockey Club have to comply with the principles of natural justice, it is important to establish whether they were required to give Mr. Miers their reasons for their decision. Mr. Ching argued that Breen v. Amalgamated Engineering Union and Others⁽⁵⁾ was not an authority which could be relied upon for the proposition that it was incumbent upon a tribunal in such circumstances to give reasons. He observed that Denning L.J. had commented upon this aspect of the matter in a dissenting judgment. Lord Edmund Davies and Lord McGaw had not laid down this requirement in their majority judgments. Mr. Ching argued that better guidance could be obtained from McInnes v. Onslow-Fane and Another⁽¹⁰⁾. This case concerned a series of applications which were made by the plaintiff for a Boxer's manager's licence. Megarry V.C. endeavoured to distinguish between the different types of situation when a tribunal might be required to give its reasons. At page 1529 of the report, he said:

"First, there are what may be called the forfeiture cases. In these, there is a decision which takes away some existing right or position, as where a member of an organisation is expelled or a licence is revoked. Second, at the other extreme there are what may be called the application cases. These are cases where the decision merely refused to grant the applicant the right or position that he seeks, such as membership of the organisation, or a licence to do certain acts. Third, there is an intermediate category, which may be called the expectation cases, which differ from the application cases only in that the applicant has some legitimate expectation from what has already happened that his application will be granted. This head includes cases where an existing licence-holder applied for a renewal of his licence, or a person already elected or appointed to some position seeks confirmation from some confirming authority."

Mr. Ching submitted that it had been made very clear to Mr. Miers that any licence issued to him was not automatically renewable. I am sure that this his right and that Mr. Miers was fully aware of the position. This view of the matter is reinforced by the wording of Rule 1(ii) of the Rules of Racing of the Jockey Club which read as follows:

Mr. Henry argued that it did not make sense if the Rule was literally interpreted in this way. I was not convinced by his arguments, I am satisfied the Rule means what it says. On the facts which were before the Stewards it seems more realistic to me to regard Mr. Miers' application for a licence as coming within the category of application cases rather than to treat the position as being a licence which is being revoked. At page 1535, Megarry V.C. went on to consider the obligation of a tribunal to give reasons in application cases. He said:

"Looking at the case a whole, in my judgment there is no obligation on the board to give the plaintiff even the gist of the reasons why they refused his application, or proposed to do so. This is not a case in which there has been any suggestion of the board considering any alleged dishonesty or morally culpable conduct of the plaintiff. A man free from any moral blemish may nevertheless be wholly unsuitable for a particular type of work. The refusal of the plaintiff's application by no means necessarily puts any slur on his character, nor does it deprive him of any statutory right. There is no mere narrow issue as to his character, but the wide and general issue whether it is right to grant this licence to this applicant. In such circumstances, in the absence of anything to suggest that the board have been affected by dishonesty or bias or caprice, or that there is any other impropriety, I think that the board are fully entitled to give no reasons for their decision, and to decide the application without any preliminary indication to the plaintiff of those reasons. The board are the best judges of the desirability of granting the licence, and in the absence of any impropriety the court ought not to interfere."

I am satisfied that this is a correct statement of the law so far as it applies to the present case. I do not consider that the principles which were laid down in the cases of Board of Education v. Rice and Others ⁽⁷⁾; B. Surinder Singh Kanda v. Government of the Federation of Malaya ⁽⁶⁾ and Regina v. Deputy Industrial Injuries Commissioner. Ex parte Moore ⁽⁹⁾ are at variance with this. All of these cases were dealing with very different situations to that of the present case. The result of this is that I am satisfied that Mr. Miers received sufficient information or reasons from the Jockey Club. It is however necessary to consider further the reasons which were given in the light of the necessity of determining whether the Stewards have acted capriciously or without justification. I will deal with this later.

23. I now propose commenting upon the evidence which was before the Stewards of What transpired. It is common ground that Mr. Miers was aware of the fact that complaints had been made to him on the subject of slow starts. The culminated in the meeting he attended of the Licensing Committee on the 21st of October 1981 when he was told that out of 30 races he had been reported as having had eight slow starts. An allowance was made for three of these slow starts due to the fact that the horses in three of the races were notorious barrier rougues and other jockeys had experienced difficulties with them. This left five slow starts or slow starts in one out of every six races which the Licensing Committee considered to be completely unacceptable. We then come to the time when Mr. Miers made his application for a licence for the 1982/1983 season. Prior to actually malting his application he was invited to attend before the Licensing Committee and put forward reasons as to why his licence should be renewed. He was supplied with statistics concerning his racing record and a copy of his disciplinary record. When he attended at the meeting he took with him an eight page memorandum which included detailed information concerning slow starts. There can be no doubt that he had a fairly accurate idea what issues were relevant in the minds of the Members of the Licensing Committee. He had received the same form of letter as the other jockeys particulars of which I have already referred to. When he attended at the meeting he was given an opportunity, albeit a limited one, of putting forward representations. In any event he was able to present to the Licensing Committee his memorandum. In preparing the memorandum he would have had access to the records of the Club including the stipendiary stewards' report on races he had ridden in. With that information it should not have been an unduly difficult or exacting task to prepare a submission which would justify his position.

24. I do not propose commenting upon the criticisms which Mr. Henry levelled towards the hearing before the Licensing Committee. The reason for this is that I do not think that it is open to him to do so on the basis of the grounds of complaint which are contained in the originating summons. Over and above this the appeal before the Stewards was by way of re-hearing and any deficiencies which may have manifested themselves would have been cured by the appeal. The authority for this can be found in the case of Fred Dawson Calvin v. John Henry Brownlow carr and Others ⁽¹¹⁾. I will therefore next consider the appeal. At the appeal Mr. Miers was represented by Mr. Henry a London Silk and Mr. Rodway. He also had the services of a highly reputable firm of solicitors. The hearing lasted three days. A large number of witnesses were called and gave evidence. There can be no doubt whatever that Mr. Miers had every opportunity of presenting his case to the Stewards at the Appeal.

25. I have already commented in some detail upon the evidence which was adduced on behalf of Mr. Miers at the hearing. I am however mindful of the grounds of criticism contained in ground 3 in the originating summons. It is therefore necessary for me to make some observations on the matter. The Jockey Club did not see fit to them-selves call any witnesses. However Mr. Ching who at the hearing represented the Jockey Club did cross-examine some of the witnesses. He cross-examined Lord Oaksey. The main effect of Mr. Ching's cross-examination of Lord Oaksey was to obtain admissions from him that there were substantial differences in the racing scene in England which he principally had knowledge of and the situation in Hong Kong. The main difference being that all racing in Hong Kong is concentrated within a small area and there are only two race tracks. This position is contrasted by the position in England where race tracks are dispersed in many different parts of the country. One result of this being that it is impossible for stewards of the Jockey Club in England to exercise anything approaching the same measure of supervision as is possible in Hong Kong. Also there are almost ten times the number of jockeys with licences in England as there are in Hong Kong. There is also no parallel in England to the enormous sums of money which are staked on every race in Hong Kong. What clearly emerges from the evidence of racing in Hong Kong is that it is a limited or finite resource. Having regard to the physical limitations it must inevitably be the case that controls have to be exercised over almost every aspect of racing and the resources have to be allocated in accordance with requirements. Lord Oaksey also agreed that it was the function of a jockey club to control the quantity and quality of racing in any jurisdiction.

26. Mr. Ching also cross-examined Mr. Killian. As I understood it, the main purpose of this cross-examination was to call in question Mr. Killian's ability to give evidence concerning Mr. Miers present riding ability or competence in Hong Kong. He agreed that he had only seen Mr. Miers racing twice in Hong Kong. Once in 1976 and another time, in 1981. It is therefore difficult to see how he could form any accurate impression of Mr. Miers' ability ever assuming that he had detailed knowledge of the horses he was riding.

27. It is appropriate at this stage that I should deal with the submissions which were made by Mr. Ching concerning all of the witnesses who were called by Mr. Miers to give what may, I think, fairly be described as testimonials. The witnesses who were called included the owners of horses, journalists and other jockeys. As I have stated previously all of this evidence was highly favourable to Mr. Miers. Mr. Ching submitted that it was not of any assistance to him as it missed the essential point that the Jockey Club at no time were suggesting that Mr. Miers was not a competent jockey. What they were saying was that he did not any longer measure up to the standards which the Jockey Club felt they were entitled to expect of an expatriate jockey. In considering what an appropriate standard should be they took into account the necessity for an expatriate jockey to be of a higher standard that a local jockey and that he should be able to set them all an example. In this way it was intended that the presence of expatriate jockeys would have the effect of raising the standard of racing in Hong Kong. With respect to Mr. Ching I do not think that these submissions detract from the evidence of the majority of the witnesses coming within this category. For the most part of evidence which was given concerning Mr. Miers was couched in the highest terms of praise. It is highly probable that if the majority of these witnesses were asked the question whether Mr. Miers measured up to the highest standards which could reasonably be expected, their answers would have been in the affirmative. I consider that the evidence of these witnesses must essentially be accepted at its face value.

28. The next question which has to be considered is whether the Stewards would have been possessed of sufficient evidence to enable them to weigh and balance the position. In this respect I am bearing in mind the necessity of the Stewards to confine themselves to the evidence referred to at the beginning of their decision which I have cited earlier in this judgment. On the one hand they had available to them the considerable body of evidence adduced on behalf of Mr. Miers. On the other hand there was very little positive evidence available to the Jockey Club. There was all of the documentary evidence which I have already referred to. There was also the evidence derived as a result of the respective cross-examination of Mr. Miers witnesses who were cross-examined. Mr. Henry submitted that I had no alternative but to accept the evidence of Lord Oaksey and Mr. Burns on the subject of slow starts. This was on the basis that it was uncontradicted and unchallenged. This evidence was to the effect that it was a meaningless exercise to simply take the number of slow starts and then assume that this was detrimental to or reflected adversely upon the ability of a jockey. He had said certain evidence was required before any accurate assessment could be made of the position. It would be necessary to obtain evidence from the trainer of the horses concerned to ascertain whether the horses were difficult horses. It would also be necessary to resort to the various surveillance devices and perhaps even obtain evidence from the starter. In addition to this a slow start could possibly be a deliberate tactical ploy if the owner and the trainer considered it to be advantageous that the horse should be held back until a later stage in the race. Mr. Burns gave similar evidence in this connection to Lord Oaksey and Mr. Henry argued that the same considerations would be applicable. These arguments are partially answered in the evidence which was before the Stewards. In the minutes of the meeting of the Licensing Committee of the 21st of October 1981 it is clear that the Chairman of the meeting did take into account the fact that two of the horses being riden by Mr. Miers were difficult horses at the start. This, of itself, is indicative of the fact that the Jockey Club was mindful of this problem. Another matter which has to be considered in connection with slow starts is the evidence of Mr. Miers. Mr. Ching made much of the fact Mr. Miers had not provided explanations in respect of all of the slow starts. He gave explanations concerning the horses which had proved to be particularly troublesome. However he gave no explanation in respect of other cases. Mr. Henry argued that it was not necessary for him to have done so as he has not been pressed on this subject in cross-examination before the Stewards. With respect I disagree with Mr. Henry. The appeal was being conducted by Mr. Miers and his advisers and I can see no reason whatever why he should not have been able to give a full explanation in respect of every start which had been recorded as a slow start particularly in the light of the warnings he had received. He would have had available to him the records of the Jockey Club and this should not have proved to be an unduly onerous task. The fact remains that Mr. Miers did not give a complete explanation to the Stewards in respect of all of the slow starts. It would also have been open to him to have made reports to the racing stewards at the conclusion of races where there had been slow starts. He would have had the stipendiary stewards reports available to him for this purpose. One would have thought that having received a formal final warning from the Licensing Committee on this subject he would have been anxious to explain to the racing stewards any incidents which had occurred.

29. Having considered the evidence which was before the Stewards I have to finally decide whether ground 3 of Mr. Miers' complaint in the summons can succeed. The question which is posed in objection number 3 can be summarised by asking the question in general terms whether any reasonable tribunal could have reached the decision it did on the basis of the evidence which was before it. There are two cases on this subject which can provide some guidance. The first is the case of Allinson v. General Council of Medical Education and Registration ⁽¹²⁾. In this case a doctor had been summoned to appear before a disciplinary board. A similar issue had been decided in that case namely whether the conduct complained of was sufficient to amount to professional mis-conduct. Lord Esher, the Master of the Rolls, had this to say at page 760 of the report.

"As to the second ground of objection, it is admitted that, if there was no evidence upon which the council might fairly and reasonably say that the plaintiff had been guilty of "infamous conduct in a professional respect," they went beyond the jurisdiction given to them by the Act in entertaining the case and proceeding to adjudicate upon it. If there was no such evidence, they ought to have declined to interfere. Was there, then, any evidence which justified the council in finding the plaintiff guilty of ''infamous conduct in a professional respect?"

The second case I will refer to is the case of Lee v. The Showmen's Guild of Great Britain⁽¹³⁾ where Lord Denning had this to say at page 345 of the report.

"In most of the cases which come before such a domestic tribunal the task of the committee can be divided into two parts. First, they must construe the rules; secondly, they must apply the rules to the facts. The first is a question of law which they cast answer correctly if they are to keep within their jurisdiction the second is a question of fact which is essentially a matter for them. The whole point of giving jurisdiction to a committee is so that they can determine the facts and decide what is to be done about them. The two parts of the task are, however, often inextricably mixed together. The construction of the rules is so bound up with the application of the rules to the facts that no one can tell one from the other. When that happens, the question whether the committee has acted within its jurisdiction depends, in my opinion, on whether the facts adduced before them were reasonably capable of being held to be a breach of the rules. If they were, then the proper inference is that the committee correctly construed the rules and have acted within their jurisdiction. If, however, the facts were not reasonably capable of being held to be a breach, and yet the committee held them to be a breach, then the only inference is that the committee have mis-construed the rules and exceeded their jurisdiction. The proposition is sometimes stated in the form that the court can interfere if there was no evidence to support the finding of the committee; but that only means that the facts were not reasonably capable of supporting the finding."

I have given careful consideration to whether the decision which was reached by the Stewards could be justified by the evidence which was before them. In doing so I have borne in mind a number of factors. One of the most important factors has been that Mr. Henry informed me during the course of the hearing that he had received instructions from Mr. Miers that he was not alleging any mala fides against the Stewards. I take this to mean that the Stewards have, as honest men, used their best endeavours to reach the right decision both in the interest of the Jockey Club and of the community at large. I am by no means convinced that it would not have beer open to the Stewards to reach the decision they did on the basis of the evidence before them. They would no doubt have borne in mind the substantial differences between racing in Hong Kong and racing in other parts of the world. It is a fact, as was conceded by Lord Oaksey in his evidence that very large amounts of money are staked on races in Hong Kong and there is a far higher measure of supervision here than else-where. It may well be the case that the conditions prevailing in Hong Kong are unique. The Stewards may well feel that it is necessary to adopt a restrictive policy towards the licensing of expatriate jockeys. They may also consider that the evidence which was placed before them was sufficient to justify them in not agreeing to renew Mr. Miers' licence. Be that as it may I am satisfied that they have not in any manner contravened the rules of natural justice. I therefore dismiss this application in its entirety. The Jockey Club will be entitled to its costs.

(1)    (1966) 2 Q.B. 633.

(2)    (1768) 4 Burr. 2186.

(3)    (1919) A.C. 606.

(4)    (1971) 1 Ch. 591.

(5)    (1971) 2 Q.B. 175.

(6)    (1962) A.C. 322

(7)    (1911) A.C. 179

(8)    (1960) 1 W.L.R. 223

(9)    (1965) 1 Q.B. 456.

(10)    (1978) 1 W.L.R. 1520.

(11)    (1980) A.C. 574.

(12)    (1894) 1 Q.B. 750.

(13)    (1952) 2 Q. B. 329.

Representation:

Mr. D. Henry, Q.C. Mr. G. Rodway & Mr. G. Mackay (Hampton, Winter & Glynn) for Plaintiff.

Mr. C. Ching, Q.C. & Mr. J. Bleach (Johnson, Stokes & Master) for Defendants.