PETER JAMES MIERS v. THE ROYAL HONG KONG JOCKEY CLUB

CACV000137/1982

Headnote

Court of Appeal

            Leave to appeal to Privy Council - construction of Order in Council 10th August 1909.

            The applicant applied to the Royal Hong Kong Jockey Club for a licence to ride in races organized by the Club. His application was rejected by the Licensing Committee. His appeal to the Stewards of the Club, an application to the High Court for declarations ( and an enquiry as to damages ) and an appeal to the Court were all dismissed.

            The contentions put forward in the High Court and again in the Court were that :

	1.	The reasons given by the Stewards for their decision  were not adequate;
	2.	There was in fact no evidence to support their decision; and
	3.	The Stewards misled those advising the applicant into not calling certain evidence that was then available.

	Application was made for leave to appeal to the Privy Council:
	1.	at the discretion of the Court in that the questions involved in the Appeal were of great general or public importance; and
	2.	as of right in that the Appeal involved:
		(a)	a claim in contract for damages in excess of the financial limit, based on a breach by the Stewards of an agreement to give a fair hearing; and
		(b)	a civil right worth more than the financial limit, being the right to work as a jockey for the current racing season.

Held :

as to

1.

that the questions were not of great general or public importance;

	as to	2.	(a)	that no question of contract had been pleaded or properly raised in the proceedings and the matter was now beyond the jurisdiction of the Court;
	as to	2.	(b)	(by the majority), that in the particular circumstances of the case the applicant was entitled to leave; - (in dissent) that the only right involved was the right to a fair hearing, which did not fall within the rule.

IN THE COURT OF APPEAL

Civil Appeal No. 137 of 1982

BETWEEN

	PETER JAMES MIERS	Appellant (Plaintiff)
	AND
	THE ROYAL HONG KONG JOCKEY CLUB	Respondent (Defendant)

___________________________

Coram: Hon. Cons, Fuad, JJ.A. & Power, J.

Date of Hearing: 4 February 1983

Date of Judgment: 8 February 1983

 

___________

JUDGMENT

___________

Cons, J.A. :

1. Poorer J., who unfortunately cannot be present today, has asked me to say that he is in full agreement with the judgment I am about to deliver.

2. In order to ride in horse racing organised by the Royal Hong Kong Jockey Club, it is necessary to have a licence from the Club. These are issued annually and are valid only for the current racing season.

3. In 1971, Mr. Peter Miers, the applicant in these proceedings, applied for and obtained such a licence. He did so again the following year and in each succeeding year until last year, when his application for the present racing season was rejected by the Licensing Committee.

4. The rules of the Jockey Club do not provide for any appeal from the decision of that Committee, but an appeal to the Stewards was offered to Mr. Miers and he accepted it. There was a full hearing at which both he and the Club were represented by counsel, evidence was adduced and submissions made. The Stewards dismissed his appeal.

5. He then brought an action in the High Court by way of Originating Summons claiming three remedies: -

(1)	A declaration that the decision not to renew his licence was null and void;
(2)	An order that the Jockey Club should renew his licence; and
(3)	An enquiry into damages.

6. Mayo J. refused all the relief sought. That refusal was appealed to this Court and we upheld the judge's decision. Mr. Miers now seeks leave to take a further appeal to the Privy Council.

7. The conditions on which we may give him that leave are governed by Rule 2 of an Order in Council dated the 10th August, 1909 -

"2.

Subject to the provisions of these Rules, an Appeal shall lie -

	(a)	as of right, from any final judgment of the Court, where the matter in dispute on the Appeal amounts to or is of the value of $200,000 or upwards, or where the Appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $200,000 or upwards; and
	(b)	at the discretion of the Court, from any other judgment of the Court, whether final or interlocutory, if, in the opinion of the Court, the question involved in the Appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to His majesty in Council for decision."

8. In the appeal itself, counsel for Mr. Miers put forward three contentions:-

(1)	That the reasons given by the Stewards for their decision were not adequate;
(2)	That there was in fact no evidence to support that decision;
(3)	That the Stewards had misled those advising him into not calling certain evidence that was then available.

9. I am not persuaded that these in any way raise matters of great general or public importance. I do not for one moment deny that Mr. Miers' "exclusion from racing", if I may use that phrase, is a matter of great public interest. But that is something different and is not the criterion that we have to apply.

10. It is of course a matter of great importance to him end to his family. While I do not accept that it has deprived him of his livelihood, it must have made a very great impact on what has become for the last ten years his and his family's way of life here in Hong Kong. Those are considerations that might perhaps have carried weight elsewhere, I do not know. But they are not within our jurisdiction. Nor do I think they are sufficient to bring the case within the words "or otherwise" as those words have been interpreted by the predecessor of this Court in Hui Shiu-wing v. Cheung Yuk-Iin⁽¹⁾_.

11. Apart from this, it is said that an appeal lies as a right. For two reasons. The first is by way of contract, a contract said to have been made when Mr. Miers accepted the Club's offer of an appeal to the Stewards. The consideration was that he thereby gave up his right of immediate access to the Courts, which would have been to set aside the unsatisfactory hearing given him by the Licensing Committee. There would be implied into that contract a term that he would be given a fair hearing before the Stewards. In the circumstances he was not, and thus the Club is in breach. The damage he has sustained is the cost of preparing and mounting his appeal, a cost shown by affidavit to be well in excess of $200,000.

12. There is no mention of contract in the Originating Summons or in the Notice of Appeal. At most it received only a passing reference from counsel on the last occasion. It is suggested that this is so because it is a matter subsidiary to the question of whether or not there has been a breach of natural justice and will only fall for decision if that question is answered in the affirmative.

13. I do not accept that suggestion. It is true that a claim in contract could not succeed without proof of a breach of natural justice but that does not make it merely subsidiary. It seems to me that although it is dressed up in this application as a point of law, we are in effect being asked to allow the introduction of a completely new cause of action, and one moreover which would be more appropriate to proceedings commenced by way of writ. I have grave doubts whether we would accede to that request, for I know not what evidence might have been called or elicited at first instance, either as to the formation of the contract or as to the consideration. But in any event I do not think we are in a position to do so. The substance of the case is no longer within our jurisdiction. There can therefore be no question of an appeal as of right in this respect.

14. The second reason relies on the second part of paragraph (a), that the appeal involves, directly or indirectly, a question respecting a civil right worth more than the specified amount. The civil right is said to be Mr. Miers' right to work at his chosen profession for at least this current racing season, a right which I accept to be worth more than $200,000.

15. Mr. Ching, who has appeared throughout for the Jockey Club, submits that this is in fact not the right involved, for had Mr. Miers been successful at any stage in his legal proceedings the most that he could have hoped for was a re-hearing before the Stewards. The right actually involved is nothing more than the right to a fair hearing. He draws our attention to two cases decided in the New Zealand Court of Appeal, the first of which is Graham v. Callaghan⁽²⁾_.

16. In a particular district of New Zealand, a poll had been taken under a statute concerned with the sale of alcoholic liquor. As a result there would presumably be some restrictions imposed upon the sale thereof. A number of persons lodged a petition to set aside the poll, amongst whom were several publicans whose licences would be affected, which licences were accepted as being worth more than the financial minimum. The proceedings upon the petition were stopped by an order of prohibition from the Supreme Court on the ground that the proceedings were beyond the jurisdiction of the magistrate holding them. That order was affirmed by the Court of Appeal, which subsequently refused leave to appeal to the Privy Council, applying rules which are apparently the same as our own. The Court took the view that if the appeal succeeded it would not necessarily follow that the publicans would retain their licences. All that would happen was that the magistrate would continue hearing the petition and might or might not set aside the poll, a question which did not involve a sum of money. In the words of the Court "here the possible indirect result that may follow from another decision is all that can be said to be of any money value to any of the petitioners".

17. That case was followed in Griffin & Sons Ltd. v. Judge Archer⁽³⁾ where it had been suggested that a judge hearing an appeal from a Transport Tribunal had predetermined the issue. It was held that the only right in dispute was the right to have an impartial hearing, and that in itself could not be reduced to a money value.

18. It is to be noted that in both those cases all that the applicant had was the hope or expectation of a favourable decision from some other tribunal. There was no certainty in either that such a decision would follow.

19. The circumstances we are faced with, however, are different. The Stewards have already indicated why they are unwilling to grant Mr. Miers a licence. They have one reason and one reason only. He lacks ability at the start. Now the substance of Mr. Miers' case is that that is a bad reason, a reason upon which no reasonable body of Stewards could rely. If he is able to make that case good then the inevitable result is that the Stewards ought to grant him a licence, there being no other reason to refuse him. That takes the case out of the class of the two New Zealand cases and puts it within the class of Nag1e v. Feilden⁽⁴⁾ where the only reason for refusal of a licence was that the applicant was a woman.

20. As I have already indicated, Mr. Miers asked at first instance for a positive order that the Stewards do grant him a licence. He appeared to lose confidence when he brought his appeal to this Court and added in his Notice of Appeal an alternative request for an order for an immediate re-hearing of his application.

21. I am not myself aware of any case in which a court has gone so far as to make a positive order of that kind, but I am not persuaded that that in it self is conclusive. I am confident that a suitable declaration could be framed which would indicate that in the opinion of the Court, subject to such questions as medical fitness etc., the Steward ought to grant him a licence, and it would be unthinkable that the Stewards of the Royal Hong Kong Jockey Club would not in that case comply, or that they would not have done so had such a declaration been made by mayo J. last October.

22. For these reasons I am satisfied that Mr. Miers is entitled to his leave, subject to appropriate conditions as to security and the time within which the Record is to be prepared and dispatched.

(D. Cons) Justice of Appeal

(1)    (1968) H.K.L.R. 176

(3)    (1957) N.Z.L.R. 502

(4)    (1966) 2 Q.B. 633

Fuad, J .A.:

23. I have had the advantage of reading in draft the judgment just delivered by Cons J .A. and I regret that I am unable to agree with my brothers upon what should be the result of this motion for leave to appeal to Her Majesty in Council. Iike them, and for the reasons given by my Lord Cons, J .A., having regard to all the circumstances, I do not consider that this is an appropriate case to grant leave in the exercise of the discretion given to this Court by the provisions of para. (b) of rule 2 of the Rules.

24. I now turn to consider para. (a) of the Rule in its application to this motion. Although an intending appellant is accorded an appeal as of right if he can bring himself within the ambit of that paragraph, since the Judicial Committee Rules 1957 prescribe that all appeals to Her majesty in Council shall be brought either in pursuance of leave obtained from this Court or of special leave granted by the Judicial Committee, we are bound to pronounce on the question. But, of course, we have no jurisdiction to give leave under para. (a) unless the intending appellant discharges the burden of establishing that he has the right he claims by his motion.

25. In my view by any fair use of language, it cannot be maintained that "the matter in dispute on the Appeal amounts to or is of the value of $200,000 or upwards". Nor by the same token do I consider that it can successfully be ccntended that the appeal "involves, directly or indirectly, some claim or question to or respecting property .... amounting to or of the value of $200,000 or upwards". Can it be said, however, that the appeal "involves, directly or indirectly, some claim or question to or respecting .... some civil right amounting to or of the value of $200,000 or upwards"?

26. One of the difficulties confronting us, it seems to me, is that, for perfectly understandable reasons, neither before Mayo J. nor before us were the remedies sought by these proceedings canvassed. It will be recalled that on the appeal before us, Mr. Miers sought -

	(a)	a declaration that the Stewards' decision not to renew his licence was void;
	(b)	that the Stewards (presumably, by injunction) -
		(i)	be restrained from treating him as an unlicenced jockey, or
		(ii)	renew his licence forthwith, or
		(iii)	re-hear and determine his licence application in accordance with the rules of natural justice;
	(c)	an inquiry into damages.

The items I have numbered (b)(i) and (iii) were not remedies asked for in the originating summons but these included a claim for "other relief".

27. I think it is necessary to consider these remedies for as our law has developed rights and remedies often go together. In summary, Mr. Rodway submitted that when the Stewards agreed to re-hear the application made by Mr. Miers a contract came into existence between the parties; the Stewards breached that contract by failing to conduct the hearing in accordance with the rules of natural justice (an implied term of the contract); Mr. Miers suffered damages as a consequence of the breach; and these exceeded $200,000. This was so whether one looked at the matter from the standpoint of the wasted money incurred by Mr. Miers, in connection with the hearing before the Stewards, by the fees he paid his legal advisers and by the payment of expenses to witnesses, or took into account his loss of earnings due to wrongfully being denied a licence for the current season. There can be no doubt that Mr. Miers expended and lost money far in excess of the sum referred to in rule 2(a). But the question remains to be asked - does the intended appeal involve, directly or indirectly, a claim or question to or respecting a civil right? I will not be so bold as to attempt comprehensively to define what is embraced by the expression "civil right". It is a very wide term and as the courts expand concepts to afford remedies to correct injustice, so do new, what might justifiably be called civil rights emerge. But in my judgment Mr. Miers must show that he is advancing a right that a court will recognise. In this context it is helpful to refer to the Australian decision of Cole v. The Commonwealth of Australia[1961] 106 C.L.R. 653 where provisions very similar to rule 2(a) were construed. At p.655, the High Court of Australia said -

"As to par. (2) it is urged that the claim to a further amount of damages is not a claim, etc. to a civil right or a claim, etc. respecting a civil right. The position which the Court has taken with reference to these paragraphs is explained in Oertel v. Crocker, ^Z in Ballas v. Theophi1os[No. 1] and in Ebert v. The Union Trustee Co. of Australia Ltd. In the 1astnamed case the general rule was briefly stated: "It still remains generally true that the plaintiff must show prejudice through the order wade which sounds in the required sum of money". We have not, of course, in any of these cases deserted the literal words of the two paragraphs but the principle upon which the paragraphs proceed has been explained by the Court as being that the appellant must by the order of which he complains have been prejudiced, with respect to the rights he asserts or the liabilities he denies, to an extent which amounts to or may be estimated as involving £1,500.

 

28. Appeals to a court to protect the right of a man to work fall upon sympathetic ears, and as Nagle v. Fielden[1966] 2 Q.B. 633 shows, in appropriate cases the courts are likely to intervene. But the facts there intro way resemble what is alleged in the present case, put at its highest. I do not see how I can avoid the apparent presumption of considering what orders might be made if the appeal proceeded and succeeded. The Judicial Committee would, no doubt, grant the declaration sought - that the Stewards' decision was null and void, and either remit the case to the High Court for further procedure (as happened in Ridge v. Baldwin[1964] A. C. 40) or direct the Stewards to re-hear the application in accordance with the rules of natural justice. Here the rules of the Jockey Club give the Stewards absolute discretion to grant or refuse a licence. No legislation in force in Hong Kong renders this jurisdiction illegal. No suggestion has been made that the rules should be struck down on the grounds of unlawful restraint of trade or public policy. No case has been cited to us in which any court in the Commonwealth has gone so far as to direct the issue of a licence in these circumstances. This is not a case where statutory or other conditions have been fulfilled so that a person is entitled to a licence. Nor is it a case involving wrongful expulsion or suspension. Of course, an appropriately worded declaration would have great moral force and might achieve the ultimate result of persuading the Stewards to grant a licence to Mr. Miers to ride in Hong Kong but such a declaration would do no more than vindicate his right to a fair hearing. At a new hearing both sides would be free to present their cases in any way that they thought fit and would not be bound by what went before. It would by no means necessarily follow that Mr. Miers would be granted a licence. I have reached the conclusion that the "civil right" here involved is the right to be given a hearing in accordance with the rules of natural justice and not the right to a licence without which there can be no "right to work" as a jockey in Hong Kong. Although by no means the same, the situation is not far different from those revealed by the New Zealand canes of Graham v. Callaghan (1904) 23 N.Z.L.R. 56 and Griffin and Sons v. Judge Archer and Others[1957] N.Z.L.R. 502.

29. As regards the contract and its breach put forward by Mr. Rodway, in my view, we are bound to loos at the case as it now stands. I have already remarked that Mr. Miers asked for an inquiry into damages. It need hardly be said that the courts have very wide powers, which they frequently and freely exercise, to allow an originating summons to be amended, but until this is done, it cannot be said that the provisions of O.7 r.3 have been complied with. This rule requires that the summons must include "a concise statement of the relief or remedy claimed.....with sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims that relief or remedy". No authority has been referred to us, to indicate that a breach of the rules of natural justice, as such, gives rise to a cause of action for damages. Mr. Miers would have to show that the conduct complained of constituted what I might call a recognised civil wrong, or a breach of contract. To show that there had been breach of contract, he would have to plead and show a contractual nexus between him and the Stewards. Only then, it seems to me, could it be said that the appeal "involves directly or indirectly, some claim or question to or respecting ..... some civil right amounting to or to the value of $200,000 or upwards". It is not enough that the appeal might involve such a claim or question.

30. For these reasons, in my judgment, Mr. Miers has not brought himself within the terms of the Order in Council, and I would dismiss the motion.

(K.T. Fuad) Justice of Appeal

Representation:

Mr. Gilbert Rodway (Hampton, Winter and Glynn) for the Applicant.

Mr. Charles Ching, Q.C., with Mr. John Bleach (Johnston, Stokes and Master) for the Respondent.

CACV000137A/1982

Headnote

                The Appellant had been refused a license by the Royal Hong Kong Jockey Club to ride in races organised by the Club. There had been an appeal to the Stewards of the Club who upheld the decision of the Licensing Committee. It was argued that the Stewards had acted in breach of the rules of natural justice in that -

	(a)	there was no evidence capable of supporting their decision;
	(b)	there was ample evidence to refute the objection taken by the Stewards;
and	(c)	the course of conduct of proceedings before the Stewards deprived the Appellant of a fair hearing.

Held : in the circumstances there had been no breach of the rules of natural justice.

IN THE COURT OF APPEAL

Civil Appeal No. 137 of 1982

BETWEEN

	PETER JAMES MIERS	Appellant (Plaintiff)
	AND
	THE ROYAL HONG KONG JOCKEY CLUB	Respondents (Defendants)

__________________________________

Coram: Hon. Cons, Fuad, JJ. A. & Power, J

Date: 23 December 1982

___________

JUDGMENT

___________

 

Cons, J. A. :

1. All horse racing in Hong Kong is conducted under the auspices of the Royal Hong Kong Jockey Club and administered by the Stewards of the Club in accordance with their published rules.  Although the rules are apparently amended from time to time the present version came substantially into force in 1971, which was the first year that professional jockeys were allowed to take part in the racing.

2. To avail himself of that privilege a professional jockey must first obtain a licence from the Stewards. Rule 61 provides :

"61.

No person other than an amateur rider shall ride in any race until he has obtained a jockey's licence from the Stewards of the Jockey Club. Such licence must be applied for annually and shall only remain in force for the current racing, season."

3. The Stewards do not, and did not in 1971, discourage application from jockeys overseas. They recognise that "persons applying from overseas for licences, whether as jockeys or trainers, may have expertise which when disseminated amongst those engaged in the sport of horse racing in Hong Kong will lead to a gradual raising of the standards of horse racing here". The Stewards however now insist that expatriate jockeys shall be on a retaining agreement with a licenced trainer and, more importantly, they have at all times expected the expatriate jockeys to make a greater contribution to the sport in Hong Kong than is demanded from others.

4. One of the initial expatriate jockeys was Mr. Peter Miers, the plaintiff below and the appellant before us. He came from Australia where he had enjoyed considerable success as an apprentice and then as a professional jockey. He obtained a licence from the Stewards, raced in that first season of 1971/2 and in every succeeding season up to, but not including, the present. He has, I think, also on occasion raced during this time on other courses. When he first came he brought with him his wife and three children who have remained with him ever since. He has thus made his home in Hong Kong as well as the bulk of his living.

5. Mr. Miers is not riding in this present season because the Stewards have declined to issue him a licence. That is a matter said to be within their absolute discretion. Rule 1(ii) provides:

	"The Stewards of the Jockey Club have power at their absolute discretion :-
	(i)	...
	(ii)	To grant or to refuse to grant, after enquiry, and to renew or to refuse to renew without giving any reason licences to Jockeys and Trainers and permits to Trainers and Amateur Riders. Every application for renewal of Any licence or permit shall be treated and regarded in all respects and for all purposes as if it were the first application by the applicant for such a licence or permit."

6. It has not been thought necessary in this appeal to challenge that rule itself, for the Stewards did in fact give reasons for their decision. They said :

"By letter 20th May 1982 the Licensing Committee declined to grant a Licence to Jockey Miers. Their letter read :-

 

'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 1982/83 should be rejected and accordingly your Licence fee is returned herewith.'

 

In common with all the appellants Jockey Miers was sent his riding and disciplinary record commencing season 1978/79 under cover of letter 1st May 1982. As long ago as 27th April 1980 the Race Meeting Stewards warned Jockey Miers concerning his record at starts, and by letter 12th May 1980 to Jockey, Miers the Licensing Committee fully endorsed the warning given previously by the Race Meeting Stewards. Further, on 21st October 1981 the Licensing Committee interviewed Jockey Miers formally drawing his attention again to his poor record at the start and informing him that the Licensing Committee gave him a final warning in this regard We do not see an improvement in the record of Jockey Miers at the start since 21st October 1981 and note this Appellant's apparent lack of interest in or concern at the published reports of the Race Meeting Stewards (Report on Racing Incidents). We concur with the Licensing Committee that the Appellant Miers is no longer up to the standard which the Stewards' believe is expected of an expatriate Jockey."

7. In order to understand those reasons properly it is necessary to set out a little history. The starting date is the 27th April 1980. On that day Mr. Miers rode a horse by the name of "Honey Grove", which was slowly away at the start. The Race Stewards held an enquiry. Mr. Miers explained to them that it was the first time that he had ridden that particular horse and that it was also the first time that that horse had been raced; further that although the horse had stood well in the barrier "when the gates opened he just did not jump". We do not know whether the Stewards accepted that explanation or not. They appear to have had more than that one incident on their minds, for the warning they then gave Mr. Miers was a general warning "concerning his record at starts". That is how it is put in the official record.

8. Those words were repeated in a letter sent some two weeks later by the Racing Secretary of the Club:

"I have been asked by the Licensing Committee to advise you that they wish to endorse fully the warning given to you by the Race Meeting Stewards on 27th April I980 in relation to your record at starts, and will expect to see an immediate and considerable improvement in this respect if favourable consideration is to be given to any application for relicensing you may submit in the future."

9. Nevertheless, Mr. Miers' licence was renewed for the next season, that is 1980/1, during which there was no complaint, at least as to his starting habits, and again for the following season, that is 1981/2.

10. It is apparently the practice of the Stipendiary Stewards to call a meeting of all jockeys prior to the start of a new season. Such a meeting was held on the 17th September 1981. The Senior Stipendiary Steward addressed the assembled jockeys at some length. He closed with this general, but firm, warning :

"The Stewards shall require -

a. The highest levels of ability, and

b. Integrity throughout the coming season.

 

If you have not got the ability then you should not be here in the first instant. If you have not got the integrity, then you shall not be here in the 2nd instant.

 

With regard to both these qualities, all suspensions, disqualifications, fines, warnings, benefits of the doubts etc. shall be meticulously recorded against each individuals record. At or before the end of the coming season, this record shall be taken into account when deciding whether or not to renew a licence for the following season."

11. I may interpose here that at no time has the integrity of Mr. Miers been questioned in any way.

12. It was in fact long before the end of the season that the Licensing Committee came to take stock in, relation to Mr. Miers. He was called before them on the 21st October. The Chairman's words are recorded as follows :

"Miers, you have been called to appear before this Committee because of your deteriorating record at the Start this season.

 

You will recall that the Racing Secretary wrote to you on the 12th of May, 1980 drawing your attention to the fact that this Committee was not satisfied with your performance at the Start and that it should be improved or your chances of obtaining a renewal of licence may be prejudiced. You will also recall that you received a verbal warning on the same subject from the Race Meeting Stewards on the 27th of April, 1980.

 

Following these cautions the incidence of your horses being reported 'slowly away' lessened. However, it is disquieting to note that this season from 30 rides so far, your horses have been reported as being 'slowly away' on no less than eight occasions.

 

This Committee recognises that two of the horses concerned have a record of being slowly away with other jockeys and that this accounts for three occasions. Thus, the statistics show that the horses which you ride are reported as being slowly away once out of every six races. This is not acceptable."

The Chairman then suggested three possible reasons and continues :

"However, it is not the purpose of this meeting to speculate on the reasons why you should have such a dismal record at the Start. This Committee merely wishes formally to draw your attention again to your poor record at the Start; to inform you that this is your final warning in this regard, that this warning will be retained on your record with the Club and that your record will be studied in meticulous detail when your application for renewal of your licence is considered, at the end of this season.

 

You should be in no doubt as to the severity of this warning. This Committee, the Stewards and the general public are dissatisfied with your consistently poor performance at the Start. If you do not improve and maintain that improvement the renewal of your licence at the end of this season will be in jeopardy."

13. Mr. Miers attempted to explain that there were a lot of difficult horses in the stable by which he was retained and mentioned many by name, but the Committee were unwilling to enter into any kind of discussion.

14. Several criticisms have been made of the manner in which that meeting was conducted but it is not necessary for us to consider whether or not they are valid. Mr. Ching, who appears for the Club, does not seek to support the decision of the Stewards by reliance upon the actions of the Licensing Committee in any way.

15. On the 27th January this year, the Race Stewards for that day thought fit to enquire into the start of a horse called "Semper Laetus". Their conclusion, and another warning, are recorded as follows :

"Jockey P. Miers was brought before the Stewards to explain the reason for SEMPER LAETUS being slowly away. On hearing his explanation that the horse became slightly uneasy in the stalls and jumped awkwardly and having seen the patrol film, the Stewards again drew his attention to his record at the Start."

16. Towards the end of the season the Licensing Committee were obviously giving provisional consideration to the issue of licenses for the following season. On the 26th April they sent a letter in the following terms to six expatriate jockeys, one of whom was Mr. Miers :

"This letter serves to inform you that the Licensing Committee have reviewed the recent riding records of all licensed Jockeys and apprentices riding in Hong Kong during the 1981/82 season.

 

As a consequence of that review, doubts have been identified as to your record and should it be your intention to apply for a licence next season, you are asked to attend a meeting of the Licensing Committee on 11 May 1982 at which you will be asked to explain your past record and to give reasons why in your opinion any application for renewal of your licence should be approved.

 

You will be notified of the time and place of the meeting in due course."

17. A few days later each of the jockeys was supplied with a resume of his riding and disciplinary record for that and the preceding three seasons.

18. Mr. Miers attended the meeting and took with him an eight-page typewritten memorandum in which he had sought to justify his record and to meet what he thought might be the matters which were causing concern to the Committee, and in particular with what was said to be his poor performance at the start. He left that memorandum with the Committee for their perusal.

19. Again suggestions have been made that this meeting was not satisfactory from Mr. Miers' point of view, but again, and for the reason that I have mentioned earlier, it is not necessary for us to consider whether or not that was so.

20. The following day, that is the 12th May, the Committee's provisional conclusion was communicated to Mr. Miers :

"Thank you for coming to the meeting of the Licensing Committee on 11 May 1982 in response to my letter dated 26 April. The letter requested your presence only if it was your intention to apply for a Licence next season, to explain your past record and to give reasons why in your opinion any application for renewal of your Licence should be approved.

 

Following your meeting with the Licensing Committee, I am asked to advise you that an application received from you for a Jockey's Licence for next season is unlikely to be favourably considered.

 

Finally, I am asked to stress that the decision as to whether or not you make application for a Jockey's Licence for next season is entirely up to you."

21. Identical letters were sent to three of the other Jockeys who had been similarly called before the Committee. Nevertheless, Mr. Miers, and those other three, lodged applications for licences. That was on the 19th May. On the 20th, all the applications were rejected. The letter to Mr. Miers was in these words :

"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 has therefore decided that your application for a Licence for the season 1982/83 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 the Rules of Racing and should you wish to exercise this right, notice of Appeal must be given to me in writing by 12:00 noon Monday 24 May 1982."

22. Despite the last sentence of that letter, Rule 156 does not in fact provide for an appeal from a decision of this kind. It is limited to incidents that occur in or in relation to a particular meeting. However, following representations by those acting for the four jockeys, the Stewards of the Club agreed that there should be an appeal under Rule 2, which covers cases not provided for in the rules. It was apparently further agreed that the appeal should take the form of a re-hearing before a panel chosen from those Stewards who did not sit upon the Licensing Committee and that it should follow more or less the pattern adopted in civil proceedings in courts of law, with both the Club and the jockeys being legally represented.

23. The hearing took place can the 19th, 21st and 23rd of July. There were impressive legal teams on either side, teams which have remained the same throughout the subsequent legal proceedings. The appellate panel also had a legal adviser who was to take no part in their deliberations but was to be available if the Stewards should need advice or a ruling on a point of law. At the conclusion of the hearing the Stewards adjourned to consider. This would have to take time because of their business and other commitments which would take some of them away from Hong Kong for a whiles. It was hoped that a decision "with some accompanying reasoning" could be given by the 25th August. In fact the Stewards bettered that date by two days. On the 23rd august they allowed one of the appeals, that in relation to a Mr. Brunet. They dismissed the other three.

24. Mr. Mires, not being satisfied with that decision, applied by way of originating summons to the High Court for a declaration that the Stewards decision not to renew his license was void (and for certain remedies if the Court should take that view). The grounds argued in support of that application were :

"	(1)	The Stewards acted under Rule 1(ii) of the Rules of Racing of the Royal Hong Kong Jockey Club and that rule, where it related to the renewal of licenses, is void as being in restraint of trade and contrary to natural justice and the right to work.
	(2)	The Stewards gave no or no adequate reasons for their decision and therefore the decision contravenes natural justice.
	(3)	There was no or no sufficient evidence upon which the Stewards could properly conclude that the plaintiff's license should not be renewed, and in particular it was contrary to the evidence before them for the Stewards to determine

	(a)	that the results or the speed of starts achieved by a jockey significantly reflect the jockey's ability,
	(b)	that the results of the plaintiff were not of a standard properly acceptable to the Stewards,
	(c)	that the speed of the starts achieved by the plaintiff were not of a standard acceptable to the Steward.

	(4)	If contrary to paragraph I hereof Rule 1(ii) is valid, then in having regard to the record of the plaintiff's results and slow starts in Hong Kong the Stewards contravened Rule 1(ii) of the Rules of Racing and they did not treat and regard the plaintiff's application for renewal of his license in all respects and for all purposes as if it were the first application by him for such a license.
	(5)	The plaintiff is a competent, experienced and established jockey of good standing who should have his license renewed and should not be prevented from working as a jockey in Hong Kong."

25. The learned judge below declined to give that declaration and the matter comes again before this Court. Grounds (1) and (4) are no longer pursued. But it is still said that the Stewards failed to give adequate reasons to support their decision and that there was in fact no evidence before them reasonably capable of supporting that decision. It is further said that Mr. Mires was misled by the course of the conduct of the enquiry into not calling particular evidence that was then available to him and which might have affected the outcome.

26. The basic line taken on behalf of Mr. Miers before the Stewards and maintained both below and in this Court is twofold. Firstly, that generally speaking slow starts do not reflect upon the competence of the jockey and secondly, that each individual slow start in Mr. Miers' record can be sufficiently explained.

27. For the first proposition Mr. Henry, who appears for Mr. Miers, relies principally upon the evidence of Lord Oaksey a gentleman with an impeccable record in relation to horses. Born into a family closely connected with racing, he was in his earlier years a leading amateur rider under National Hunt Rules and since then has participated full time in the sport as journalist, racing correspondent and TV commentator. His evidence established, in the submission of Mr. Henry, that because there may be other factors involved a slow start can never be an indication of a jockey's ability, and that slow starts ought never to be taken into consideration by the Stewards except in enquiries into the running and riding of particular horses.

28. That certainly seems to be the position in the United Kingdom, where according to Lord Oaksey to refuse a licence merely because the jockey had a long record of slow starts would be unheard of. Provided he is honest and competent they are, it seems, content to let his finer skills be judged by those who may consider whether or not to engage him. In Hong Kong on the other hand the Stewards are disposed to exercise much tighter control and in particular as I have mentioned earlier, to call for a higher measure of ability from those who come from overseas. That is a matter of policy for the Stewards of the Club and the Courts would not presume to interfere.

29. Nevertheless if the evidence did establish that on no occasion could a slow start be laid at the door of the jockey's lack of ability then of course if would be quite wrong for the Stewards to take slow starting into account when assessing whether or not a particular jockey was up to the standard they required. The Courts then would be entitled to interfere.

30. In my opinion the evidence of Lord Oaksey does not go that far. He would attach importance to the nature of the horses concerned, for some horses are highly excitable in the starting box, and some, quite the opposite, tending to stand flat-footed when the gates are opened. There might also be he said, tactical reasons for wanting other horses to be in front at the start. Then he concluded :

"So that it seems to me very dangerous to attack or criticise a jockey on the grounds that he has been slowly away repeatedly, without -

(a) looking at the records of the horses

(b) asking the Trainer what the character of those horses were;

and

(c) considering the race.

 

He does not say that the jockey can never be at fault, and it may be noted in passing that the Stewards did later look at the records of the horses - at least of most of them - and that the trainer concerned - Mr. Burns - did give evidence.

 

31. Lord Oaksey was not cross-examined on this aspect of his evidence Counsel for Mr. Miers therefore thought it unnecessary to raise it with his next witness, a Mr. Killian, another gentleman of great experience in horse racing and who has for many years now been a Stipendiary Steward of the Australian Jockey Club. I have however no reason to think that his evidence would have gone any further than that of Lord Oaksey, any more than did the subsequent evidence of Mr. Burns. It is, after all, a matter of common sense. Of course no jockey can be better than his horse. But that does not mean he cannot influence his horse or that on any particular occasion he could not have done better than in fact he did. It may be that the horse is more often than not to blame. Mr. Burns, when asked if the cause of a slow start was usually the horse or the jockey, said "Unhesitatingly I would say that the horse got a bigger percentage on his side". Even so, there is still some percentage on the jockey's side. As I read the evidence the character of the horse, or horses, is an important consideration. It was not shown however to be exclusive.

32. If therefore over a period of time a particular jockey has an unduly high number of slow starts the Stewards would be justified in coming to the conclusion that there was something at fault with his technique in that particular part of the race. What was or was not unduly high in any given instance would be a matter for the Stewards themselves taking into account, of course, whatever explanation might be put forward.

33. In his memorandum to the Licensing Committee Mr. Miers listed horses on which he had been reported slowly away in the last two seasons. They were twenty in number. Several had been involved more than once while others appeared in only one of the two seasons. Before the Stewards both Mr. Miers and Mr. Burns spoke as to their characteristics. One of them was a horse by the name of "Big Chief" who figured on six occasions. Mr. Burns comment on him was that he could not be moved (in the starting box) unless someone went behind him with a cow prodder. Two other jockeys had ridden him once each this last season and each had been reported slowly away. "Scotch Flight", Mr. Burns called "a dreamer", who "would always be a slow beginner so long as he lives". There were two others- "Honey Grove" and "Bally Native" - which had been accepted by the Licensing Committee on the 21st October as having "a record of being slowly away with the jockeys". Mr. Miers described "Twilight" as a "notorious bad starter" who "has never jumped cleanly or in front, ever". Mr. Burns described him as "mad" and "erratic", "a dangerous horse". Both agreed that in fact this horse raced better when he started badly, although curiously neither said that that had ever been done deliberately.

34. As to the others, the evidence did not seem necessarily point to the horse as being slow starters For example, both "Speedy Wongchoy" and "Emerald Fortune" were said to be, on the occasions complained of, on their first races of the season and to be nervous. "Moonlight" needed "barrier assistance", which I take to mean being helped into the box. "Davis Sea" was a "broken down horse". "Jordashe" had managed, on one occasion and under another jockey, to get at least partly over the gate before it was opened. "Jack 0' Lantern" had a couple of times broken through the gate.

35. There were a few of the occasions reported where Mr. Miers was inclined to think that his start was not in fact slow, and finally there were several horses who were not mentioned at all.

36. I have dealt with this evidence merely as it has been recorded. How much was accepted by the Stewards and what weight was given to that which was are matters entirely for them.

37. It is suggested however, that when they came to deliberate upon their decision they must have either ignored or completely overlooked this evidence, that the choice of the words "we do not see an improvement in the record of Jockey Miers at the start since 21 October 1981" to express the substance of their reasoning indicates that all they did was to add up the number of slow starts reported after that date to put them against the total number of starts and to compare the result with the figures reached earlier by the Licensing Committee. Even then it is said the Stewards would be wrong, for even without allowing for known bad starters among the horses the ratio of 1 : 6 found by the Licensing Committee had improved to 1 : 7. If "Honey Grove" and "Big Chief" were excluded the ratio would be 1 : 12.

38. I do not think the words of the Stewards are to be read in that way. I take the reference to the 21st October to have been made merely because that was the date of the last of several warnings which had been given to Mr. Fliers and which the Stewards had just recited to indicate that this was not the first time that this aspect of his riding had been called in question. I am not prepared to accept that the Stewards would have ignored or overlooked the evidence. It formed a substantial part of the hearing and they had been specifically reminded of five named horses in the final submission of Counsel. I appreciate that they make no reference to it any more than they do to the evidence of Lord Oaksey. But there is not expected from a domestic tribunal the same detailed recital of evidence and the comments thereon that is expected from a court of law. In my view what the Stewards really mean by that sentence is this, 'Mr. Miers lost his edge at the start some time ago and his record shows that he is not getting it back.' I am not persuaded that no reasonable panel of Stewards could in the circumstances have come to that conclusion.

39. When the matter came before Mayo, J. below, the point was apparently made for the Club that Mr. Miers had not provided the Stewards with an explanation for each and every one of the slow starts. As I mentioned earlier some horses were not dealt with at all.

40. No submission on that line had been made before the Stewards. Indeed there had been no cross-examination at all upon the particular horses or upon the evidence of Lord Oaksey in relation to the start. Because of that lack of challenge Mr. Henry suggests that the Stewards were, and that we now are, bound to accept that evidence as being correct. Alternatively, that by tacit acceptance of the course expressly adopted by Mr. Ching, the Stewards, albeit unwittingly, committed a breach of the rules of natural justice which deprived Mr. Miers of a fair hearing.

When Mr. Ching rose to cross-examine Mr. Burns he said this :

"Chairman, as you may have realised from the last witness, I'm not going to waste time going through these various horses, and one thing and the other, and all I need say, I think, is to indicate that we will not accept Mr. Burns's estimate of the abilities of Mr. Miers and Mr. Smith With that caveat I have no further ... I have no questions to ask Mr. Burns."

41. The last witness referred to was a Mr. Robertson, another trainer who had given evidence on behalf of Mr. Burnett and had spoken with regard to the question of "the results you have achieved", a matter of concern to the Licensing Committee in respect of all the four jockeys but with which we have not been troubled because, presumably, the Stewards were satisfied as to this aspect.

42. If I understand Mr. Henry's argument correctly, the Stewards at that stage ought to have said something to this effect : "although Mr. Ching, you may not be concerned about the characteristics of those particular horses, we would like it to be known that we are"; that as the Stewards did not say anything of this kind Mr. Miers was induced not to deal with each and every horse nor to call for the films of each and every incident nor to have his experts Lord Oaksey and Mr. Killian comment thereon to the Stewards.

43. We are referred to three cases the first is Moxon v. Minister of Pensions⁽¹⁾. That was a case where a Pensions Appeal Tribunal acted on information passed to them privately by their own medical member. That information was held not to be "evidence" within the meaning of the appropriate legislation, the essence of "evidence", when used with reference to judicial or quasi-judicial matters, being that it consisted of oral statements or documents made in the presence of or communicated "to both parties before the Tribunal reaches its decision. I do not think the case assists in the present context.

44. The second authority is Rex v. Paddington and St. Marylebone Rent Tribunal⁽²⁾. A Rent Tribunal had purported to reduce the rent of eight flats in a large block known as Park West. The landlords applied for an order of Certiorari to bring up and quash the order of the Tribunal upon two grounds. They succeeded on both but it is only the second that need concern us here -

"That is really enough to dispose of this case, but there are other grounds on which it is said that certiorari should be granted. It appears that before the tribunal entered on the hearing there was an inspection of the flats by the members. In giving their decision the tribunal said : 'In fixing the 'rents of the various flats, it is not out of place to point out 'that these flats are not up to modern standards. In no 'single flat is the ceiling more than eight feet from the floor. 'This is less than is required by present day standards.' It appears from the affidavit of the chairman of the tribunal that during the course of the inspection they had some conversation with a Mr. Marshall, described as the manager of Park West, and another member of the staff and one or other of them, it is not clear which, agreed that the height of the ceiling which was measured, was less than that required by present-day standards

 

... But not a word was said by anybody during the hearing, or at any time before the decision was given, as to this being a ground for reduction of rent. It has, in fact, taken the advisers of the applicants entirely by surprise, and surely in common fairness, if this was to be considered by the tribunal they ought to have given the applicants some opportunity of dealing with it. ....

 

In our opinion, to take into account a matter of this kind, of which no sort of intimation had been given to the applicants, brings this case exactly within the decision of the House of Lords in Board of Education v. Rice and others⁽³⁾, the judgments in which are so well known that we need not set them out. On that ground alone, we think that the eight determinations in this case, ... would have to be quashed."

45. The third case is M. K. S. Seyed Mohamed Shareef v. Commissioner forRegistration of Indian and Pakistani Residents⁽⁴⁾. The facts of this case are not easy to follow. Mr. Shareef applied in Ceylon for citizenship of that country. He would have been entitled to that if he could establish certain residential qualifications. In the circumstances he was required to satisfy a Deputy Commissioner of Immigration that he did in fact possess those qualifications. The enquiry by the Commissioner was spread over several attendances separated by some months. At the first hearing, the Commissioner became suspicious of a school certificate - known as a "Q schedule" - produced by Mr. Shareef in support of his own evidence. The Commissioner directed an enquiry to be made as to its genuineness. As a result, he received a report from an investigating officer and a letter from the Director of Education to the effect that the Q schedules were not genuine. However, some months later the Director of Education, upon further investigations made on his own behalf, changed his mind and wrote to the Commissioner that after all the Q schedules were genuine. In the meantime, and after receipt of this letter, the Commissioner continued with his enquiry and it was only after the evidence had been closed and on the last day of the hearings that he disclosed this later letter to Mr. Shareef and his legal adviser. The legal adviser then handed in a written submission relying upon the Q schedules as being genuine, a matter which he said "is now put beyond doubt by the authoritative letter of the Director of Education". Nevertheless, the Commissioner rejected that opinion, preferring instead the earlier report to the contrary, and he refused Mr. Shareef his registration.

46. The Privy Council took the view that the Commissioner was wrong to do that without making known to Mr. Shareef at the time his doubts concerning the Q schedules -

"The impression which would naturally have been left upon his advocate in view of the course of the proceedings, was that the last report of the Director of Education concluded the matter of the genuineness of the Q schedules in his client's favour. By the deputy commissioner's failure to point out to him that he was by no means convinced of their genuineness and that he proposed to rely on the superseded report of Sandarasegaram, he may well have been misled into thinking that the deputy commissioner did not require any further argument or evidence on this aspect of the matter."

47. However, that was not the sole ground on which their Lordships advised that the Commissioner's order should be quashed. Other matters they took into account were that the Commissioner's original suspicions were ill-founded, he having been mistaken as to the date; that the original report had at no time been disclosed to Mr. Shareef and that despite the non-disclosure the school teacher whom he called to give evidence in his favour was cross-examined by the Commissioner on the basis of what was contained in the report; and finally that although the Commissioner was under a duty to ascertain the truth in his enquiry, he was prepared to disregard the opinion of the officer on whose report the Director of Education's later conclusion was based without even hearing his evidence. In the light of all that they said :

"In the whole circumstances their Lordships are satisfied that the appellant was not fairly treated and that the principles of natural justice were not complied with by the Deputy Commissioner."

48. In my view, the present circumstances come nowhere near the circumstances of those two cases. The Stewards did not come to their conclusion by relying on something which had not been discussed at all before them, as did the Paddington Tribunal. It was a question of what weight should be given to matters which had been discussed at some length. Nor can I see that either Mr. Ching's failure to cross-examine Lord Oaksey upon slow starts generally and the other witnesses upon the particular horses, or the Stewards' silence in face of his expressed intention not to do so, or even these matters taken together, were sufficient to warrant the assumption by those advising Mr. Miers that the Stewards were thereafter conclusively satisfied in those respects. I also note that subsequent to Mr. Ching's comment, Mr. Miers was taken painstakingly through most of the horses concerned. And in his final submission to the Stewards, Mr. Rodway was still seeking to persuade them that to judge a jockey's competence by the sheer number of his slow starts was in principle wrong. He put forward Lord Oaksey as "a witness of considerable merit" whose views the Stewards would "no doubt wish to listen to with care", not as a witness who must be believed because his evidence was not being challenged. I am for my part satisfied that Mr. Miers was given a fair hearing.

49. For these reasons, I would dismiss the appeal.

(D. Cons) Justice of Appeal

(1)    (1945) 1 K.B. 490

(2)    (1949) 1 K.B. 666

(3)    (1911) A. C. 179

(4)    (1966) A. C. 47

Fuad, J.A. :

50. I have had the advantage of reading the judgment just delivered by Cons, J. A. in draft and agree that this appeal should be dismissed. His review and analysis of the facts, issues and arguments makes it possible for me to state my observations quite shortly. I would say at the outset that at the heart of the issues raised by this appeal is the extent to which a court can properly exercise its supervisory function over an authority such as the Jockey Club which by its constitutional instruments is given an absolute discretion whether to grant or refuse to grant a licence to a jockey, and where no provision is made for an appeal to a court of law against such a decision. The purpose of the proceedings before the High Court and now before this Court was not to review the merits of the decision of the Stewards but the way in which it was reached, for to attempt the former would be to usurp the functions entrusted to the Stewards. Although it was in a dissenting speech, so far as I am aware what Lord Evershed had to say, in Ridge v. Baldwin[1964] A. C. 40, at p.96 has never been doubted, and in my respectful opinion strikes the right note of caution -

"As I have said, I feel very great difficulty on this matter. I do not wish at all to denigrate the principles of natural justice or of their proper invocation in the courts. On the other hand, we have, as I have already many times pointed out, the very wide terms of the Act of Parliament here in question, and the body in which was invested this wide discretion was an entirely responsible body. To insist, as I venture to think, on the invocation of these principles whenever anyone is discharged from some office seems to me to involve a danger of usurpation of power on the part of the courts and under the pretext of having regard to the principles of natural justice to invoke what may often be in truth little more than sentiment; and upon occasions when the courts, though having necessarily far less knowledge of all the relevant circumstances, may be inclined to think that, had the decision rested with them, they would have decided differently from the body in question. Yet I do observe again that it is not the decision as such which is liable to review; it is only the circumstances in which the decision was reached, and particularly in such a case as the present the need for riving the party dismissed an opportunity for putting his case ."

51. The extent to which the Stewards of the Jockey Club are bound by the rules of natural justice when entertaining a licence application by a jockey does not fall for consideration. They agreed to give Mr. Miers a fair hearing and there cannot be the smallest doubt that they endeavoured to do so; and, indeed, no complaint is made about the appellate Stewards integrity. The following needs to be noted -

	(a)	the Stewards are men of considerable standing in the racing world of Hong Kong who were fully conscious of their great responsibilities and of the consequences to Mr. Miers of an adverse decision;
	(b)	by the time the matter came before the Stewards, Mr. Miers knew precisely what "case" he had to meet if he was to succeed in his desire to be granted a licence. It was not necessary for him to be given the details which would have been essential had he, for example, been in danger of being dismissed from office (the situation in Ridge v. Baldwin) or the subject of disciplinary proceedings;
	(c)	Mr. Miers was allowed to be legally represented, and if I may be permitted to say so, had the services of distinguished senior and junior Counsel. They were given "the last word";
	(d)	Mr. fliers was given all the time he needed to present his case, and was able to lead as much evidence as he wished;
	(e)	the Stewards took time to consider their decision. They promised to give and did give reasons for declining to grant a licence;
	(f)	Every word that was spoken throughout the three day hearing, including the submissions of Counsel, was taken down and transcribed for later use;
	(g)	Mr. Henry was able to pay tribute to the Stewards for their courtesy and consideration during the hearing.

52. I will now turn to the reasons that he appellate Stewards gave in writing. I will first remark that in my judgment it would be quite wrong to insist that a tribunal of the kind in question should analyse the evidence before them and give a considered judgment of the kind expected from a court of law. This would be to set an inappropriate and unrealistic standard. The Stewards began, as they must have done, by setting out very clearly what evidence and other material they had taken into consideration when reaching their decision; they set out the enabling power in the Rules to grant and refuse licences; they stated that they saw no ambiguity or difficulty in the Rules that provided that "Every application for renewal of a licence...shall be treated and regarded in all respects and for all purposes as if it were the first application by the applicant for such a licence ...", and that they were not prepared to hold it invalid; they explained why they considered expatriate jockeys should also be affected by that rule; they set out the history of the events which led to the hearing before the Licensing Committee; they said why they rejected the criticisms (now no longer relevant) levelled at the procedures followed by that Committee; they set out the reasons given by the Committee for refusing Mr. Miers a licence; and finally gave their own reasons for agreeing with the Committee.

53. I have no hesitation in concluding that having regard to all the circumstances and bearing in mind the functions of the Stewards, these reasons were perfectly sufficient. They were there, in effect, to decide whether or not Mr. Aliens should be granted a licence for the current season. They are entitled, in my view, as Stewards to set standards upon which they will insist (standards which might be higher for expatriate jockeys) provided these are not capricious or arbitrary. They are also entitled, if they act only on the evidence and material before them, to decide that a particular jockey does not meet (in the case of a first licence) or no longer meets (in the case of a renewal) such standards. They are fully justified in bringing to bear upon their deliberations their accumulated knowledge, wisdom and experience as Stewards. Based on this expertise they may evaluate and draw conclusions from the evidence before them in a manner which outruns analysis and which might not be open to a court of law. They must not, of course, decline to consider expert and other evidence that is put before them, but a reviewing court in my opinion exceeds its powers if in examining the proceedings to determine whether there has been procedural regularity, it attempts to review the mental processes of the decision makers when they have reached a conclusion clearly open to them.

54. Of course, as a long and unbroken line of authorities tell us, there could be no fair adjudication if the Stewards took into account in coming to their decision any fact that had not been brought to the attention of Mr. Miens. But nothing was said by the Stewards during the hearing or in their reasons to suggest that this happened. They were clearly not relying on the personal observation on the part of any of their number of any of the races in which Mr. Miers rode. It would have been otiose to state the self-evident fact that the Stewards were considering the material before them as Stewards, with their knowledge of racing as part of their equipment, and not as laymen. I regard it as essential to bear in mind a factor which seems to me to be quite plain, that the freedom of a tribunal to reach a decision on the facts presented to it is considerably greater when the decision is more the formulation of an opinion within its discretion than a question of fact. The Stewards were not deciding whether or not Mr. Miers was wholly or partially to blame for any particular slow start (as would be the case in disciplinary proceedings) but whether in their opinion Mr. Miers was still up to the standards required of an expatriate jockey. There was no reason whatever why they should have substituted Lord Oaksey's opinion for their own - nor were they bound to explain why, despite his evidence, they thought as they did. It would have been quite different if it could be said (and I am firmly of the view that it cannot) that no responsible body of Stewards in the context of the Hong Kong racing scene, if I may so call it, could reasonably have concluded on the evidence available that Mr. Miers should not be re-licensed. What was essentially the Stewards opinion, if honestly and reasonably held, is, in my judgment, unassailable in a court of law.

55. In my opinion the Stewards gave Mr. Miers a full and fair hearing in every sense of those words. Their good faith is not challenged. It cannot be said that they asked themselves, and answered, the wrong question. There is nothing to indicate that they failed to take any relevant consideration into account (they could not, even without the oral evidence, have been unaware of the obvious fact that slow starts are often the fault of the horse and not the rider). Their decision was not manifestly unreasonable.

56. In conclusion I would reiterate, in different words, that neither the High Court nor this Court is entitled to assume appellate jurisdiction - the jurisdiction we have is entirely supervisory. If as here, there was in the facts sufficient material to support the conclusion of the Stewards, we may not overrule it merely because we might, on the same facts have reached a different one. Nor can the decision of the Stewards be impugned, if there has been no breach of the rules of natural justice, upon notions that it may operate harshly against a particular individual. This is not a matter for us.

K.T. Fuad Justice of Appeal

Power, J. :

57. I have had the benefit of reading the judgment of the Learned President and am in respectful agreement therewith. I would only add that much of the difficulty that has arisen in this matter came about because the Licensing Committee did not, as in my view it should have, proceed to a hearing of the appellant's application for a renewal of his licence. While I make no criticism of their motive for holding a "preliminary meeting", it should, in my view, never have been held. I consider that it may be proper to indicate that, in my view, the approach adopted prior to that meeting, that is calling upon the appellant to give reasons why, in the light of his record, his licence should be renewed, would have been a proper and appropriate one to have adopted preliminary to a hearing by the Licensing Committee of the application to renew his licence.

(N. P. Power) Judge of the High Court

Representation:

Denis Henry Q.C., C. Rodway & Graeme Mackay (M/S Hampton, Winter & Glynn) for Appellant.

Charles Ching, Q.C. & John Bleach (M/S J.S.M.) for Respondent.