The Stewards of the Royal Hong Kong Jockey Club v. Kevin Moses
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CACV000141/1981 Headnote Prospects of success not sufficient to warrent interim injunction pending Judicial Review.
______________________ Coram: Hon. Cons, J. A., Power & Rhind JJ. Date: 14 January 1982 ___________ JUDGMENT ___________ Cons, J.A. : This is the judgment of us all. 1. On the evening of Wednesday, the 7th October last year the horse "Micky" ran in the third section of the Kwun Tong Handicap which was the fourth race on the card at Happy Valley. The meeting was being held under the auspices of The Royal Hong Kong Jockey Club. The jockey was one Kevin Moses. 2. "Micky" made no showing in the race and immediately afterwards the stewards of the meeting called for an enquiry into "the running, and riding of the horse". The stewards are, entitled to do so under Rule 14(xiv) of the Club's Rules of Racing and Instructions by The Stewards by which Mr. Moses, as a professional jockey wishing to race at Club meetings, has agreed to be bound. 3. The stewards for that meeting consisted of two honorary stewards, one of whom took the chair, and four stipendiaty stewards, including the senior stipendiary steward, a Mr. Marsh. 4. It was a busy evening for them. They had apparently dealt with two other enquiries before they came to the one with which we are concerned. By then it was 11 o'clock. Present, apart from the stewards, were the owner of "Micky", his trainer and Mr. Moses. 5. The enquiry did not progress far that night. Partly due to the lateness of the hour and partly because the stewards wished also to see a colour film of the race in question and of other races in which "Micky" had taken part, the enquiry was adjourned. 6. The stewards resumed the enquiry the following evening at six o'clock and eventually concluded that Mr. Moses had been guilty of failing to run the horse on its merits. That is contrary to Rule 131(i) of the Club rules and they disqualified him for six months with immediate effect. 7. Rules 156-159 provide for an appeal against decisions of this kind. Notice must be lodged within 48 hours and in due course the appeal will be heard by at least three stewards of the Club. The appeal stewards may request the stewards of the meeting to attend and may invite their comments on any fresh evidence adduced by the appellant with leave, but the race meeting stewards may not deliberate with the appeal stewards. 8. Mr. Moses did not take advantage of the procedure laid down by the code he had agreed to follow, or rather he did so initially, but then subsequently withdrew the Notice of Appeal that he had lodged. Instead, on the 3rd November, he moved the High Court for leave to apply for a judicial review of the decision of the stewards of the meeting. He obtained that leave on the 6th November and on the 10th November he lodged his application. On the same day he lodged another application for interim relief, requiring the Club to lift the disqualification until such time as the actual review could be heard. That application was argued before Mr. Justice Mayo who, on the 19th November, in a reserved judgment, granted Mr. Moses the interim relief that he had sought. It is against that decision that the present appeal is brought. 9. We view, as a matter of regret, that the proceedings should have taken this course. We observe that at the time Notice of Motion was first lodged the review was set down to be heard on dates near the end of last month. We understand that it was not the fault of the courts that these dates were not taken up. 10. The Principles for determining whether or not to grant an interim injunction are set out now in the case of American Cyanamid (1) and have been often quoted. There is no need for us to repeat them again. 11. Mr. Moses has effectively signed away his right of damages against the Club if it should be found eventually that his disqualification was wrongful. Thus the balance of convenience is automatically in his favour if he can clear the initial hurdle. It may be thought that this follows naturally from the fact that the Full Bench granted him leave. 12. Mr. Henry, who has appeared before us for Mr. Moses, does not put his submission that high. The way he asks us to take that decision is, we think, although he does not put it in these precise words, as one of strong persuasive authority. 13. In our view it carries little, if any, authority. 14. We mean no disrespect to the judges concerned when we say that. Firstly, leave of that kind is given ex parte and often after only very short discussion, whereas we have had the benefit of full argument for two days with first class counsel on both sides. Secondly, whatever words one chooses to describe the first hurdle set up by American Cyanamid, the level of that hurdle is higher than the line of "no chance of success" which is the line drawn, and in our view drawn correctly, by the Full Bench in applications of that kind. 15. Mr. Moses's application for judicial review is founded on the allegation that the enquiry which led to his disqualification was not conducted in accordance with the rules of natural justice. 16. Mr. Ogden who has appeared before us on behalf of the stewards, observes that under Rule 14(xii) the stewards of the meeting have power to punish "not with standing that no enquiry was held into the running of the horse". That may be, but it was not contested before us that if the stewards do in fact embark upon an enquiry with a view to inflicting punishment, if at the end they think it deserved, then they are bound to observe the rules of natural justice when conducting that enquiry. 17. The particular grounds put forward in the statement accompanying the application for leave and elaborated in the affidavit in support are that (1) Mr. Moses did not know the nature of the accusation made; (2) he was given no reasonable opportunity to state his case; and (3) the stewards did not act in good faith. 18. We may say straight-away that we see no merit in the first point. It would have been a very naive novice who did not realise, at least by the end of the first hearing, that he was suspected of not haring ridden the horse to its full. Mr. Moses is not a naive novice. He has been racing now for 12 years and is no stranger to the enquiry room. 19. The second two points may be taken together. But before, we do that we should make clear that the enquiry was not simply a matter of questions asked and explanations given. Films of the race were shown and of the two previous races in which Mr. Moses had ridden "Micky", on those occasions with good results. At his request the film of an earlier race was shown, one in which he finished near the tail of the field. There were opportunities for questions by all three who had been called in, and then the stewards decided formally to prefer the charge. Thereafter Mr. Moses was given the opportunity to call witnesses or put further questions and an opportunity to speak in mitigation once the stewards had announced their verdict. 20. We have had the benefit of a full transcript and of the comments of counsel on particular passages. But we do not think it necessary to go into further detail, for as we understand it now the principal complaint is not as to the form which the enquiry took but as to the behaviour of the stewards within that form. 21. It is, of course, inevitable that before an enquiry of this kind is even commenced the stewards will at least have some suspicion against those whom they call to attend, otherwise there would be no enquiry. And if ultimately the stewards decide, as they did in the present instance, to prefer a formal charge it is inevitable that by the time they do so they will have a great deal more than suspicion, they will have at least what we would term a prima facie case; otherwise they would not lay the charge. 22. These are the natural consequences of this kind of proceeding, for the stewards are not picked at random like a jury in proceedings to which we are more accustomed to hear evidence ferretted out by others, possibly a police detective. The stewards are chosen for their personal expertise arid experience in horse racing, expertise and experience which they are expected to use in the assessment of conduct which to a large extent they observe for themselves, either directly in the race itself or with the assistance of films. 23. As Chief Justice Napier said in the South Australian case of Beale(2), they combine "the duty of detection with that of decision". 24. It is this feature which distinguishes what are called, in juristic terms, inquisitorial proceedings from those of an accusatorial nature. 25. With every respect to the learned judge below we think he failed fully to appreciate the importance of this distinction. He appeared to equate the proceedings with those of a normal criminal trial where there is a clear line drawn between investigation and prosecution. That led him to criticise the juncture at which the formal charge was preferred, a criticism which has been repeated before us but which in our view is not merited. It fails to appreciate that this kind of inquisitorial proceeding cannot, like those we are more accustomed to, be split into neat legalistic compartments. They are a varied and continuing process and the true test that we should apply is to see whether, when those proceedings have been terminated, the person concerned can be said in the eyes of an objective observer to have had fair treatment and consideration of his case on its merits. That test is taken from the opinion of the Privy Council in Calvin v. Carr.(3) 26. The question then is did Mr. Moses get fair treatment and a consideration of his case on its merits. Mr. Henry says no; he was denied it by the conduct of the stewards and in particular that of Mr. Marsh. "The jockey," he said, "never stood a chance.". 27. Whether he stood a chance or not .depends, of course, to a large extent on what was shown by the films. That is something that we do not know and it would only be in the most unusual circumstances that we could possibly take it into consideration. Nor are we concerned with whether "Micky" was in tact injured by over-reaching, or it so, what was the effect of that injury or of the ride that he was probably given on the Tuesday morning before the race. These are matters for the stewards. 28. We have to accept the point made that Mr. Moses could not expect to be treated with kid gloves. Racing is a hard world. Fraudulent and corrupt practices are known to take place for the rewards are tempting. 29. The stewards owe a duty to the public as well as to the members of the Club to put an end to those practices so far as they can. On the other hand the stewards must exercise restraint, for with regard to any persons suspected and charged they are, as we have already observed, witness, prosecutor and judge. The stewards must not go too far. 30. The question we have to decide is whether or not in the instant circumstances the stewards did go so far that they made the enquiry unfair, and in particular, did Mr. Marsh. Did his questions show that almost from the start he was determined upon the guilt of Mr. Moses? Did his obvious and declared disbelief in the explanations given unfairly influence the other stewards, particularly the other stipendiary stewards junior to him or the trainer Mr. Chan? Did a combination of these factors induce in Mr. Moses such a sense of complete despair that he was unable to defend himself as he should? These questions, we hope, fairly represent the submissions put forward. 31. What view, then, would an objective observer have taken of the proceedings which we envisage as best we can from the transcript? Would he have thought that Mr. Moses had fair treatment or would he not? We are not required in these proceedings to come to a firm conclusion as to that. That will be something for the judges who sit on the review itself. 32. What we have to decide are the chances of that view's being favourable to Mr. Moses, having regard to the standards set by American Cyanamid(1). In our view the chanced are slim. 33. Mr. Marsh appears to be a forthright and plain-speaking man. That does no harm. A suspect needs to know in no uncertain terms what is being suggested against him. 34. It is clear that by a particular stage in the enquiry Mr. Marsh had made up his mind against Mr. Moses and he said so firmly, but we have no reason to think that he came to that conclusion without having regard to the evidence of the films and perhaps of what he was for himself the previous evening or without attaching whatever weight he thought fit to what had been said in explanation by Mr. Moses. 35. We note that it is accepted that no complaint can be made of the stewards' behaviour before the films were shown. 36. We do not think it necessary that Mr. Marsh, having declared what was then in his mind, should have absented himself from the decision-making scene. 37. The authorities with which Mr. Henry supported that submission all relate to occasions where something in the nature of a lis had already been joined between parties and the persons sitting on the tribunals were in some way or another connected with one of those parties. 38. Nor do we find anything to indicate that Mr. Marsh's opinion unfairly influenced the other stewards. 39. We agree that the trainer, Mr. Chan, appeared to change his tune a little when led an by Mr. Marsh but we doubt whether that evidence had any influence upon the stewards. 40. We do not think that the words of the chairman were hollow. If at that stage Mr. Moses had been able to produce something fresh we see no reason to think that the stewards would have dismissed it out of hand. Such a possibility would have been unlikely for Mr. Moses had already had opportunities as the enquiry progressed and he had taken them. He showed no disposition to be tongue-tied or brow-beaten. His decision at the end not to call his fellow jockey as a witness does not necessarily indicate that he felt the whole thing to have been completely hopeless. 41. We do not say that if Mr. Moses continues with his application for review it must necessarily fail. We note that Mr. Henry has repeatedly spoken of further evidence and other interlocutory proceedings. We do say, however, that as things stand at the moment Mr. Moses has, in our view, only an outside chance. And that is not good enough for American Cyanamid(1). 42. For these reasons we allow the appeal and set aside the injunction granted in the court below.
(1) American Cyanamid v. Ethicon Ltd. [1975] 1 All E. R. 504 (2) Beale v. South Australian Trotting League (Incorporated) (1963) S. A. S. R. 209 (3) [1980] A. C. 574 (1) American Cyanamid v. Ethicon Ltd. [1975] 1 All E.R. 504 Representation: Michael Ogden, Q. C. Charles Ching, Q.C., & Arjan Sakhrani (J. S. M.), for Appellant. Denis R. M. Henry, Q.C., Gilbert Rodway & G. Mackay (Hampton, Winter & Glynn) for Respondent. |