GEEGANAGE v. DIRECTOR GENERAL OF CUSTOMS

026-SLLR-SLLR-2001-V-3-GEEGANAGE-v.-DIRECTOR-GENERAL-OF-CUSTOMS.pdf


GEEGANAGE
v.DIRECTOR GENERAL OF CUSTOMS
COURT OF APPEALGUNAWARDENA, J.
C.A. 753/97APRIL 05th, 2001
Customs Ordinance 17 of 1989 ■ S. 8. S. 129. goods not tallied withcusdec – forfeiture on Customs Officer – Bias – errors of law ■ Decisiona nullity ■ No Evidence Rule.
The Director General of Customs, who held an inquiry under S. 8 imposeda forfeiture of Rs. 500,000/- on the Petitioner, an Assistant Superintendentof Customs, under S. 129. The goods imported did not tally with the
'cusdec'.
The petitioner sought to quash the said order on the grounds of (1) Bias(2) errors in law.
Held :
The 2nd Respondent has failed to take relevant considerations intoaccount, and had allowed irrelevant factors to influence the decision.
Per Gunawardena, J.
“If a certain decision, is left unchallenged it will be accepted andenforced as of it were valid. Only a decision of a Court can establishits nullity. One ignores the void decision at one's peril and with ousterand time – limit clauses coming into vogue, effluxion of time can preventa challenge to a nullity being ever mounted after the stipulated period.
The decision was based on "No Evidence".
"No evidence" extends to any case where the evidence, taken as awhole, is not reasonably capable of supporting the finding."
there is nothing to show that the case was proved, beyond reasonabledoubt.
The decision is flawed by bias.
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Notwithstanding the objection to the 2nd Respondent. Inquiring intothe matter, he proceeded with the Inquiry. The 2nd Respondent mayhave even believed that he was acting without bias or with impartialityand on good faith, yet his mind may be unconsciously affected by theobjection raised to his hearing.
Per Gunawardena, J.
“that the Petitioners objection would have perhaps displeased the2"d Respondent would not. of itself in my view, lead to thedisqualification of the 2nd Respondent, my own view is that when thePetitioner objected to the 2nd Respondent Inquiring into the matter,the 2nd Respondent should have stepped down with a good grace, forjustice must be rooted in confidence."
APPLICATION for Writ of Certiorari.
Cases referred to :
Chief Constable of the North Wales Police u. Evans (1982) – 1WLR1155
Director of Public Prosecution v. Head – 1959 AC 83
R v. Paddington Valuation Officer – 1966 1 QB 38
Allison v. General Medical Council – 1894 1 QB 750
Hanks v. Minister of Housing & 'Local Government – 1963 1QB 999
R v. Police Complaint Board ex. P. Madden – 1983 WLR
In Re Bramblevale Ltd.. – 1976 Ch. 128
R v. Enwessor – 1991 Crim LR 483
Re Solicitor – 1991 2 All ER 335
Queen v. M. G. Sumanasena – 66 NLR 350
R v. Barnsley Metropolitan Borough Council exparte Hook – 19761 WLR 1052
Ridge v. Baldwin – 1964 AC 40
In Re Animinic – 1969 2 AC 147
R v. Lord President of the Privy Council Ex parte – 1993 AC 682
Dimes v. Grand Junction Canal Proprietors ■ 1852 3 HL Case 759
R v. Sussex Justices – 1924 1KB 256
R v. London County Council Empire Theatre – 1994 71 LJ 638
R v. Secretary of State on Environment ex p Kerkstall Valley Co.Ltd.. – 1996 3 All ER 304
R v. Thames Magistrates Court ex P. Polemis – 1974 2 All ER 1219
Chief Constable of the North Wales Police v. Evans – 1982 I WR1155 at 1173.
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Fatz Musthapha P.C.. with Sanjeewa Jayawardena for Petitioner.
Ms. Farzana Jameel S.S.C. for Is1, 2nd Respondents.
Cur. adv. vult.
June 28, 2001.
U. DE Z. GUNAWARDANA, J.The petitioner has made this application for a writ ofCertiorari quashing the order dated 18.07.1996 (P14) madeby the 2nd respondent (Deputy Director of Customs), who hadheld an inquiry under section 8 of the Customs OrdinanceNo. 17 of 1869 (as amended) imposing under sec. 129 of thesame ordinance, a forfeiture of Rs. 500,000/- on the petitioner.The petitioner had been an Assistant Superintendent of Customswho had been required on 14. 06. 1996 to examine a certainquantity of cargo or goods in order to be satisfied that theparticular batch of goods imported tallied with the "Cusdec".that is, the declaration made by the importer to the customs asto the things he was importing. The declaration made by theimporter was to the effect that the cargo consisted of spare partsof Sony radio/cassette players. The prosecution case is thatwhat was imported was not spare parts as declared by theimporter, but, the following complete (as opposed to parts) itemsas well:
291 complete sets of National radio recorders,
One complete set 29 "Sony Colour Television Set".
One National Microwave Oven and other electrical goods.
The above items were valued at 3,181,688/- and thelearned Senior State Counsel who appeared for the Is1 and2nd respondents, impressed upon me that by making a falsedeclaration as to the nature and components of the consignmentof goods, the importer had paid only Rs. 91,456/- as theduty when, in fact he would have been liable to payRs. 2,396,222/- had a true and honest declaration been made,thereby defrauding the State or the revenue of a sum of
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Rs. 2,304.766/-. To put it in layman's language, the charge orthe case against the petitioner seems to be. because everythingis so vague, that he knowingly permitted or suffered the goodsitemised above as (i). (ii) and (iii) to be removed from thewarehouse without the due duties being paid on such cargo.The 2nd respondent, who held the inquiry with regard to thismatter, had found the petitioner guilty of such conduct and inconsequence imposed the forfeiture or penalty above- mentioned.
By way of preface. I may say that the arguments put forwardby the eminent President's Counsel for the petitioner might,perhaps, have been more acceptably addressed to a courtexercising appellate and not supervisory jurisdiction – the latterjurisdiction being the one invoked by the petitioner in hispetition seeking, under the judicial review procedure, a quashingof the aforesaid decision made by the 2nd respondent. Thearguments advanced on behalf of the petitioner are based solelyon factual matters inviting the Court of Appeal more or less, tosubstitute its view in the interpretation of factual matters orsituations dealt with in the written submissions. Thesubmissions adduced on behalf the petitioner impugn thedecision, or rather in assailing it had touched, (to reproducethe very words, in a greater or less degree, in which thesubmissions are couched) on the following matters:
that the goods produced at the inquiry were not thoseexamined and passed by the petitioner,
that there were contradictions in the evidence of the policeofficers,
that the prosecution witnesses admit that the petitioner hadconducted a proper examination:
the reasons as to why the importers paid the fine imposedby the 2nd respondent which, I think are irrelevant in that itis not an aspect which the 2nd respondent could havepossibly taken into consideration in reaching the decisionsought to be impugned;
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that the petitioner was required or directed to do was a"test-check" which was akin to a random check;
that there was animosity on the part of the 2nd respondenttowards the petitioner,
that the petitioner had been out of employment for 4 1/2years;
that petitioner's wife is a "heart – patient" and thatpetitioner has two children aged 12 and 10 respectively.The two last – mentioned points may have been fittinglypleaded in mitigation after a man had been convicted ofsome of offence.
The submissions seem to be oblivious of the distinctionbetween appeal and review procedure. If one appeals against adecision, one is claiming that it is wrong, or incorrect. TheCourt of Appeal if it is persuaded of the merits of the case mayallow the appeal and so it substitutes its view for that of thecourt or tribunal of first instance. Under the judicial reviewprocedure the court is not concerned with the merits of thecase, that is, whether the decision is right or wrong. In review(as opposed to appeal) the court only considers whether thedecision is lawful or unlawful. In the words of Lord Brightman,judicial review is concerned, not with the decision, but with thedecision making process". – Chief Constable of the North WalesPolice v, Evans IU
The only point urged in the submissions filed on behalf ofthe petitioner which would be relevant (under the judicial reviewprocedure) is that of animosity" or bias of the 2nd respondentwho was the decision – maker. But the legal implications of biasor what impact bias would have on the decision, had been leftun-explained. It has not been explained or submitted thatnatural justice refers to the rules governing procedures andthese rules require that procedure must be free from bias whichwould potentially, if not for certain, have the effect of denying, ina larger sense, the petitioner's right to a fair hearing. (This aspectof will be considered later in the course of this judgement.)
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The relevant decision of the 2nd respondent is infected bythe errors of law enunciated below and is a nullity and has tobe formally quashed. This leads me to consider briefly thestatus of a void decision. If a decision is a nullity, anyway, itmight be imagined that those affected by such a decision couldsimply ignore it. At one time there had been a mistaken beliefthat certiorari will not lie to quash nullities. In Director ojPublicProsecution u. Head121 and in R. o. Paddingtion Valuationofficer131 no less a judge than Lord Denning had expressed theview that there is no need to quash what in fact, is a nullityand that it is "automatically null and void without more ado”.However, the fact that a decision is potentially void does not initself prevent its full implementation until the moment when itis contested. If a certain decision, as the one in question, is leftunchallenged it will be accepted and enforced as if it were valid.Only a decision of a court can establish its nullity. One ignoresthe void decision at one's peril and with ouster and time-limitclauses coming in to vogue, effluxtion of time can prevent achallenge to a nullity being ever mounted after the stipulatedperiod.
The decision of the 2nd respondent is liable to be set asideas it is vitiated by following errors of law which renders thedecision of the 2nd respondent a nullity:
the 2nd respondent had in reaching the decision failed totake relevant considerations into account whilst he hadallowed legally irrelevant factors to influence the decision:
The decision of the 2nd respondent is based on "no evidence"and as such is erroneous in law;
there is nothing to show that the 2nd respondent was satisfiedthat the charge or the case against the petitioner was provedto the requisite standard of proof which, in this instance, isundoubtedly proof beyond reasonable doubt.
It is strange that none of the above mentioned pointshad been urged on behalf the petitioner. The above-mentioned
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points (ii) and (iii) are inextricably interwoven and they cannotbe disentangled one from the other or considered in isolationalthough I have mentioned them, above as two separate heads.
Perhaps, the only point of any worth, arising on thesubmissions, is the question of bias on the part of the 2ndrespondent. The general effect of bias is to render the decisionwholly void. Allison v. General Medical Council141
To deal with the above points in order: it is almost axiomaticor well settled that an administrative action is irrational and assuch is ultra vires where it is shown that the decision – makerhas acted on the basis of irrelevant considerations or where itcan be shown that relevant considerations have been overlookedor ignored. A good working definition of relevance was given byMegaw J. in Hanks v. Minister of Housing and LocalGovernment151 where he discusses the concept of considerations."If it can be shown that an authority exercising a power hastaken into account as a relevant factor something which itshould not properly take into account in deciding whether ornot to exercise the power, then the exercise of that power,normally, at least, is bad. Similarly, if the authority fails to takeinto account as a relevant factor something which is relevant,and which is or ought to be known to it, and which it ought tohave taken into account, the exercise of that power is normallybad”.
The 2nd respondent had failed to consider the followingrelevant factors:
(a) that the check that the petitioner was required to makein relation to the cargo in question, was, in the parlance of thecustoms, a "test" check. It is not that the petitioner on his owninitiative decided that a "test" check would suffice. The petitionerdid what he was directed to do or as he was told to do by theAssistant Director of Customs who was a superior officer. It iscommon-ground that a "test check" does not entail as rigorousor thorough a check as would have had to be done if the goods
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had been directed to the "red channel", which involves an articleby article search or examination. The 2nd respondent had notgiven a moment's thought to that vital aspect which beencompletely glossed over-rather surprisingly. There is not a wordin the 2nd respondent’s order or report as to the nature of theduty or the degree of care that devolved on the 2nd respondentin carrying out the direction of his superior in examining goodsthat had been assigned to the "amber channel" as the relevantconsignment, in fact, was. Under sec. 129 of the CustomsOrdinance petitioner becomes liable to penalties ordainedtherein only if he had "knowingly" permitted the importers toillegally remove the goods without payment of duty thereon.
The term knowingly in relation to violation of a statutemeans consciously or intentionally.
One cannot be oblivious of the fact that the 2nd respondentin his order had described as false, the report that had beensubmitted by the petitioner after examination of the cargo whichimplied that the report was not true to the knowledge of thepetitioner. The court of review cannot substitute its view of thefacts for that of the inquirer but it is entitled to point out thatthe inquirer had failed to consider whether the petitioner hadfailed, in the course of the examination, to observe anythingother than spares, (which was what the declaration by theimporter disclosed) owing to low degree of intensity of the search,done by the petitioner which would by evidence of carelessness,rather than of anything else. It is worth observing that, as thelaw stands, as at present, no penalty would be incurred, notunder section 129 of the Customs Ordinance, anyway, if thegoods, in excess had gone undetected owing to the laxity orremissness or inadvertent negligence on the part of the officerdoing the examination, as carelessness is not a ground of legalliability under the Customs Ordinance. The petitioner cannotbe held responsible if he had not done his best to attain thedegree of care of a reasonable man. In any event, the petitionerhad been found guilty of an offence under section 129 of theCustoms Ordinance – component element of which offence is
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knowledge or rather, mens rea. In this context, it would begermane to point out that the items that had been declared bythe importer were, in fact, also amongst the cargo and thepossibility of what was undeclared being artfully concealed,(assuming that undeclared goods were also imported) as toesape detection at a random search which was, in fact, what a"test-check" signified, cannot be wholly excluded. In the decisionof this matter, there is an interplay of several considerations:
the nature of a test – check, that it is somewhat of a randomcheck:
possibility of the petitioner being remiss, as opposed tobeing dishonest:
considering the nature of the charge, that a finding of guiltcan involve even loss of liberty, unquestionably, the standardof proof to be applied to these proceedings is that requiredfor a criminal conviction – as will be explained in greaterdetail in the sequel. None of these points had received themost cursory attention at the hands of the 2nd respondent.But more unpardonable is the fact that they have not beentouched upon in the submissions. The 2nd respondentought to have ascertained what the relevant facts were andalso what standard of proof was required to establish thecharge and then married the two, so as to reach thedecision, as to whether not the charge was proved.
The 2nd respondent, on the contrary, had attached excessiveweight to legally irrelevant and inadmissible matter. In his orderhe had placed emphasis on the fact that the importer had failedto (in the very words of the order of the 2nd respondent ) "legallyprove" that excess goods that were found were "items that hehad collected from various people" – that being the explanationof Augustine Fernando who represented himself to be the ownerof the goods. In other words, from the circumstance of the failureof the owner of the consignment to produce "valid documents"or documentary proof in respect of the items that were found
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in excess of what was given in the customs declaration (in orderto prove that he had "collected them from various people" overa period to time) the 2nd respondent had drawn the inferencethat excess goods was part of the cargo that had been importedon the relevant occasion and that the petitioner had knowinglypermitted such goods to be removed without payment of duty.
It is. to say the least, a far – fetched inference and isindefensible. The fact that Augustine Fernando said so. that is.that the goods that were found in excess of the declaration hehad made to the customs represented items that he had"collected from various people" as also the fact that AugustineFernando did not produce any "documents" in proof of the factthat he "collected those items from various people" over a period,not being contested, are admitted facts. (What is not in disputeis that Augustine Fernando said so, that is. that he collectedwhat was found in excess from various people over a period,and not the truth of that statement).
The facts themselves not being in dispute, the conclusiondrawn by the 2nd respondent from those facts is a matter oflegal inference which is erroneous and as such is an error oflaw. To draw an adverse inference, on a criminal charge of oneakin or analoguous to it. as the charge against the petitioner is,from a given circumstance – that circumstance must be whollyincompatible with the innocence of the person or the accusedand incapable of any explanation upon any other reasonablehypothesis than that of his guilt. That is, I think, a rudiment ofthe law which is of universal application. But the circumstanceor fact that the importer was wholly at a loss or was incapableof producing any document with regard to excess goods ismanifestly an inconclusive fact, in relation to the charge againstthe petitioner, in the sense that it is quite as consistent, if notmore consistent, with the innocence of the petitioner as withhis guilt. It may will be that these excess goods that were foundin the possession or custody of the importer had come fromdisreputable or questionable sources. The importer may havepreviously obtained these goods by being involved in
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transactions of doubtful honesty. The fact that the importer wasunable to produce "documents" in respect of the excess goodsdoes not un-erringly point to the fact that the 2nd respondentwas "knowingly" concerned in any act of fraudulent evasion ofpayment of duties.
The other feature which is worth observing is that the 2ndrespondent's decision, it could be said, is based on "noevidence". In a sense, "no evidence rule" is a ground of old winein new bottles because review under the head of "lack ofevidence" can be seen as a species of unreasonableness, in thatno reasonable body would come to a decision unsupported byevidence. There is a growing body of case law reflecting theview that to act without evidence is to act ultra vires. As Wadeexplains " no evidence" does not mean a total lack or dearth ofevidence. He sheds more light on what "no evidence" means asfollows: "It extends to any case where the evidence, taken as awhole, is not reasonably capable of supporting the finding".
In a way, the application of the "no evidence" rule may,perhaps, result in a blurring of the distinction betweensupervisory role of the court (under the judicial reviewprocedure) and the appellate jurisdiction of the court becausethe court's exercise under this head i.e. under the concept of"no evidence" necessarily entails a consideration of the strengthof the evidence. The equivalent rule in the United State allows areviewing court to determine whether an administrativedetermination made after a formal hearing is supported bysubstantial evidence on the record taken as a whole.
No evidence rule has, of necessity, to be applied inconjunction with the requisite standard of proof in any givencase. I have explained above that the question that the court ofreview has to consider in the circumstances of this case is this:does the totality of evidence on record reasonably justify theconclusion beyond a reasonable doubt that the petitioner hadknowingly allowed the importers to remove the cargo withoutpayment of due duties. Lord Sankey's "golden thread" is whollyrelevant in the context. It is not of an age, But for all time.
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The decision of the 2nd respondent should have emerged asa consequence of the balancing of the factors favourable to thepetitioner as against the factors prejudicial to him. I cannot bringmyself to say that there is a proper, if not any. appreciation ofthe circumstances that tell in favour of the petitioner. One mustnot forget that it would suffice for the petitioner to have beenacquitted if such factors in favour of the petitioner engenders areasonable doubt. You have to guard against judicialization ofprocedures to be followed by administrative tribunals andthe like. That was the refrain or the recurring phrase inthe submissions of the learned Senior Strate Counsel. But thebedrock or the ultimate legal principles such as, that a criminalcharge or one that partakes of the complexion of one (criminalcharge) ought to be proved beyond a reasonable doubt aresacred and immutable, in any context and ought not to be lightlydisturbed. In this case the solitary point which adversely affectthe petitioner is that he happened to be the officer who examinedthe cargo before it was released to the importer. As explainedabove, the failure of the importer to produce "documents" toexplain how he came by the excess goods cannot strengthenthe case against the petitioner and no inference of guilt can bedrawn against the petitioner therefrom. The points in favour ofthe petitioner are numerically more:
strap seal was broken at the time the alleged detection wasmade. Strap seal, I take it, is something like strip of metalaffixed to the container, after checking the cargo, as aguarantee of authenticity to show that while the seal isunbroken the contents have not been tampered with. If thedetection had been made before the strap seal was brokenand while the container was on its way. that is, while thecargo was being transported, then, perhaps, it could havebeen said that there was room for holding for a certainty,that the cargo was the same as that, which had beenexamined by the petitioner, although even then the questionwould arise as to whether (assuming that the importer hadmade a false declaration) the extra cargo sought to becovertly imported had escaped the observation of thepetitioner owing to his negligence and not to his dishonesty:
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the petitioner had been required by his superior officer todo only, what is called, a "test check" which is, somewhat,of a random check, as opposed to a check of item by item;
the alleged detection was made at the site of what was, infact, a warehouse or store – room in Kotahena. The fact thatthe goods were being unloaded at the relevant time is notall that clear. In fact, there is some confusion and a lack ofclarity in the evidence on this point as to whether the goodswere in the process of being loaded or unloaded. Thelearned President's Counsel for the petitioner, in his writtensubmissions, had highlighted the relevant excerpt of theevidence of Nanayakkara, a police officer who was aprosecution witness:
Q :"From your own observation you cannot say whether
what took place there was un – loading or loading.
A :’Yes"
The importer's position, too, was that the cargo that hadbeen cleared or examined by the petitioner on the relevant datehad been unloaded and that they were loading what had beenstored or kept in that place after collecting them from variouspeople over a period.
But, whether it was loading or unloading both processespoint to the fact that it was a place that was used for storinggoods. The fact that the site of the alleged detection was a store-house is consistent with the version of the importer that thesefinished products that were found in excess such as blendersand so forth had, in fact, been stored or kept in that place,sometime before the date on which this alleged detection wasmade, although it is consistent also with the story of theprosecution that the goods (in excess of what was declared)were being unloaded. The fact that the place where the allegeddetection was made was a store or a place which was used assuch enhances the prospect of the story being true viz. that what
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was found in excess of the declared cargo was what the importerhad kept in that place after having "collected them from variouspeople" over a period.
The points enunciated above favourable to the petitioner,which demand serious consideration, had been completelyglossed over by the 2nd respondent. As pointed out above, theonly point which is legally incriminating, so far as the petitioneris concerned, was that he checked the cargo, be it noted, in thecourse of a "test-check" to ascertain whether it tallied with thedeclaration made by the importer as to the cargo he imported.That circumstance is wholly insufficient to sustain or prove acharge beyond a reasonable doubt. In these circumstances. Ihave to interfere with the decision of the 2nd respondent findingthe petitioner guilty because on that solitary piece of evidenceset out above the finding of guilt is so un-reasonable, in thesense that it is clearly beyond the.range of responses open to areasonable decision – maker who had to be satisfied, be it noted,beyond a reasonable doubt. It is manifest that the 2"drespondent had been oblivious to a crucial aspect of the natureof proceedings viz. that the burden that lay on the prosecutionwas the same degree of proof as required for conviction of acriminal offence. Even the learned President's Counsel for thepetitioner was unmindful of that matter – let alone the 2ndrespondent. Measure of cogency required to prove a casedepends upon the nature of the case. In a civil case it is proofon a preponderance of probability, that is, the more probableversion, of the two has to be upheld.
It is the type of proceedings which determines the standardof proof. Criminal proceedings require proof beyond reasonabledoubt. In R. v. Police Complaints Board ex. P. Madden161 MeNeill J. held that disciplinary proceedings taken against a policeofficer were criminal proceedings. The penalty which had beenimposed on the petitioner in this case can involve a loss ofliberty and is generally looked upon by the public like a criminalconviction. In Re. Bramblevale Ltd171 it was held thatproceedings for contempt of court are quasi-criminal because
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a prison sentence could be imposed if the allegation is proved.Therefore, proof beyond reasonable doubt is required. Thecriminal standard of proof is required before a court can besatisfied that the defendant has benefited from drug traffickingso as to assess the value of his proceeds from that traffickingunder Drug Trafficking Offences Act, 1986: R. v. Enwesor 181.
The standard of proof to be applied by a tribunalconsidering whether to strike off a solicitor should, where whatamounts to criminal offence is alleged, be that required forcriminal conviction: Re Solicitor191 Lord Lane CJ recalled thatthe code of conduct of the Bar provides that in proceedingsbefore disciplinary tribunal the criminal standard should beapplied and His Lordship felt that it would be anomalous if thetwo branches of the profession were to adopt differentapproaches in this regard.
It is worth repeating that a finding of guilt could have beenreached in these proceedings only if the charge against thepetitioner was proved beyond a reasonable doubt. I rememberreading somewhere, although I cannot recall the context, thatmore substantial the interference with human rights, the morethe court or tribunal will require by way of justification beforeit is satisfied that the decision is reasonable. In this case beforeme, the petitioner's human rights are very much in issue. Thereis, at best, a suspicion that the petitioner was knowinglyconcerned in the removal of goods without payment of duty orof due duty.
But, as had been held by Basnayake C. J. in Q v.Sumanasena1101 suspicious circumstances do not establishguilt. It is essential that there should have been strict adherenceto the rule that criminal charge or one analogous to it must beproved beyond a reasonable doubt, more so as the 2ndrespondent's duties were judicial in nature as there was a lis(controversy) inter parties situation in the proceedings beforethe 2nd respondent. There was the prosecution on one side andsuspects on the other and at the end of proceedings a heavy
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fine had been imposed in default of payment of which fine thepetitioner will, for a certainty, be sentenced to imprisonment.Personal freedom of the petitioner is at stake. This vindicateswhat 1 said before, that is, that the petitioner's human rightsare in peril or are very much in issue. One is at a loss as to whatstandard of proof was adopted by the 2nd respondent becausehis order is silent on that aspect. In R u. Barnsley MetropolitanBorough Council, ex parte Hook1"1 some members of the Courtof Appeal inferred that the local authority concerned was undera duty to act judicially – duty to act judicially being inferredfrom the fact that the decision was affecting the applicant'slivelihood. In Ridge u. Baldwin1121 Lord Reid changed the courseof the development of the law by holding that to determinewhether there existed a duty to act judicially the court shouldhave regard to the nature of the power being exercised and therights thereby affected.
The above grounds are to be designated as errors of law.and all or any one of which grounds, the impugned decisionmade by the 2nd respondent has to be quashed. Animinicdecision"'1' seems to suggest that any error of law will have theeffect that the body subsequently acts without power and sodenying that some errors may be made within jurisdiction andtherefore immune from judicial review. The Animinic (majority)decision also held that not only errors with respect topreconditions to the exercise of power may lead to acting withoutjurisdiction but also errors made in the course of exercising thepower. This issue is very important because if error of law goesto jurisdiction that expands the scope of judicial review and thepossibility of intervention by the courts. Animinic is importantbecause it held that any error of law may well be a jurisdictionalerror and therefore reviewable under the ultra vires doctrine.There has been some doubt as to whether or not Animinicabolished entirely the distinction between jurisdictional andnon-jurisdictional errors. This appears to have been resolvedby the House of Lords in R. u. Lord President oj the PrivyCouncil, ex parte"41 at 682. in which it was held that" in generalany error of law made by an administrative tribunal or an
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inferior court in reaching a decision can be quashed for error oflaw". The ground for this is the ultra vires doctrine that thesebodies had been conferred their decision making powers bythe Parliament presumably on the basis that it would beexercised on the correct legal basis. The errors law explainedabove therefore, renders the relevant decision (of the 2ndrespondent) void.
Lastly, the question of bias remains to be considered. Thelearned President's Counsel had also submitted tentatively thatthe 2nd respondent was biased as against the petitioner andstopped short at that. No specific reasons, as such, had beenadduced to substantiate the submission. Whilst the groundsdealt with above constituted errors of law – the ground of biaswould not, I think, fall so readily under any recognisable headof error of law. However, in reality the rule against bias is anaspect of fair procedure and if there was real likelihood of bias,the decision, for certain, will be vitiated.
The learned eminent President's Counsel must be taken tohave submitted that bias ought to invalidate the determinationagainst the petitioner. In Dimes u. Grand Junction CanalProprietors1151 Lord Campbell, in the course of his speech stated:" This will be a lesson to all inferior tribunals to take care notonly that in their decrees they are not influenced by their personalinterest, but to avoid the appearance of labouring under suchan influence."
In the Dimes case Lord Cottcnham had affirmed decreesmade by the Vice Chancellor in litigation between Dimes andthe canal proprietors. Dimes discovered that despite the factthat Lord Chancellor had for a period held shares in the canalcompany both in his own right and as trustee, he had continuedto hear matters arising out of the litigation, relying on the adviceof the Master of Rolls who sat with him. Dimes appealed to theHouse of Lords against all the decrees made by theLord Chancellor on the ground that he was disqualified byinterest. The House of Lords set aside all the decrees made by
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the Lord Chancellor on the ground of pecuniary interest. Therule against pecuniary interest is applied with greater strictnessthan any other ground on which bias may arise, because thecourts take no account of the fact that a decision – maker withdirect pecuniary interest did not allow himself to be influencedby it in any way. Such an interest disqualifies automatically.The 2nd respondent, of course, had no such pecuniary interest.But what is significant is that all the decrees passed by LordCottenhan were set aside by Lord Campbell although heemphatically stated in the course of his speech thus: "No onecan suppose that Lord Cottenham could be. in the remotestdegree, influenced by interest that he had in this concern: butmy Lords, it is of last importance that maxim that no man is tobe a judge in his own cause should be held sacred".
I think it would be correct to say that, basically, there arconly two rules of natural justice. The first rule of natural justiceproposes that both sides ought to be heard, (audi alterampartem) The second of the two rules of natural justice viz. "nemojudex in causa sua potest" is even of stricter application thanthe first. It is based on the fundamental requirement which isencapsulated in Lord Hewart's stirring statement in R. u. SussexJustices1161 that: "It is not merely of importance, but offundamental importance that justice should not only be done,but must manifestly and undoubtedly be seen to be done". Theimplications are that you either have a case of bias or you donot. The principle that no man shall be judge in his own cause(nemo judex in causa sua potest) is based on this rule againstbias and is intended to ensure that decision – makers are asindependent as is practicable. The rule of bias, which is avariant if not the same thing as the principle of "nemo juidex incausa sua" which means literally that no man shall be a judgein own cause. But as a rule of natural justice that maxim haswider connotation and prevents any person suspected of beingbiased from deciding a matter. There is no denying that there isa real practical difficulty in obtaining evidence of bias for, assome one said, the secrets of the living are even more inscrutablethan those of the dead. One cannot read or fathom the thoughtprocesses of decision – makers.
CA
Geeganage o. Director General of Customs
(U. de Z. Gunawardena, J.)
197
The very fact that the petitioner objected at the very outsetto the 2nd respondent inquiring or investigating would, in allprobability, have aroused antagonism in the 2nd respondentalthough that in itself cannot be treated as a fact from whichinference of bias can be drawn. However, an adjudicator who islikely to be biased ought to be disqualified from so acting.
It is to be remembered that the question of bias isparticularly insidious, acting inconspicuously but with harmfuleffect, and as such is difficult to detect. Notwithstanding theobjection to the 2nd respondent inquiring into the matter, heproceeded with the inquiry. The 2nd respondent may have evenbelieved that he was acting without bias or with impartialityand in good faith, yet, his mind may be unconsciously affectedby the objection raised by the petitioner to his hearing the matterfor the objection implied that the petitioner did not reposeconfidence in the 2nd respondent. But this point, that is, thatthe petitioner's objection to the 2nd respondent would have,perhaps, displeased the 2nd respondent would not, of itself inmy view, lead to the disqualification of the 2nd respondent.Anyhow, my own view is that when the petitioner objected tothe 2nd respondent inquiring into the matter, the 2nd respondentshould have stepped down with a good grace for justice mustbe rooted in confidence. In such circumstances the 2ndrespondent cannot realistically be expected to be unbiased. The2nd respondent could have been easily dispensed with andreplaced by another officer to whom the petitioner had noobjection. This is not a case of necessity where the 2ndrespondent was the one and only person who could have heldthis inquiry. And there is affidavit evidence by the petitionerexplaining circumstantially the cause of the 2nd respondent'sanimosity towards him although such affidavit evidence willnot provide direct or convincing proof, more so, as those factsare denied by the 2nd respondent. But, they say, there is nosmoke without a fire.
The petitioner's counsel had formulated his objection tothe 2nd respondent inquiring into the matter, to use his ownwords, as follows: "on instructions respectfully object to this
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inquiry being held by Your Honour on grounds that upto thisafternoon my clients were informed that they were witnesses inthis case, however subsequently this became aware that theyare being made suspects and they verily believe that this is soon a order by the learned inquiring officer. 1 state that makingthem suspects at the commencement of this inquiry withoutany evidence against them being recorded is making adetermination at the commencement and without even an
inquirytherefore they feel that their rights prejudiced
and on these circumstances wish to have an independentinquiring officer. I therefore respectfully state that this case beheard by another inquiring officer". (1 have reproduced theabove proceedings without correcting them). The order of the2nd respondent in relation to the above objection runs thus:
"Regarding the submission made by Mr. llliyas AAL I wishto state this is only a fact finding inquiry, Whether person listedas a suspect or witness is immaterial. Decision will be takenbased on the facts which will come out at this inquiry. Sotherefore any body will finally get a fair chance whether he is asuspect or a witness. Therefore, I overrule the submission, madeby Mr. llliyas and conduct the inquiry". 1 have reproducedabove the relevant proceedings before the inquirer verbatimand have not tampered with his diction and choice of wordsfor fear of corrupting or vitiating its pristine purity.
It looks to a detached observer viewing the objection, thatthe objection is circumstantial, not lacking in seriousness ofpurpose and has more than a substratum of substance, if notof truth. It is worth noticing that the 2nd respondent (inquiringofficer) in his order over-ruling the objection had not directlycountered the charge made against him, that is, that it was hewho had decided to make the petitioner and others (who wereoriginally to figure as witnesses) suspects. The inquirer in hisorder had not directly admitted the allegation made against him:nor had he denied or repelled it which, in the circumstances, istantamount to an admission. The fact, that the 2nd respondentdid not seek to controvert the fact that it was he who made thepetitioner a suspect, is overwhelmingly significant.
CA
Geeganage v. Director General of Customs
(U. de Z. Gunawardena, J.)
199
If, in fact, it was the 2nd respondent who had decided tomake the petitioner (who was originally a witness) a suspect,which, in fact, seems to be the case, since the 2nd respondent inthe order reproduced above had not said anything to repel ordeny the allegation, then, it comes very close to the decision -maker (2nd respondent) forming a concluding view in advance.That will give rise to serious doubts about the validity of thehearing process or the inquiry conducted by the petitioner. Itwould be somewhat difficult for the 2nd respondent to haveconsidered the matter fairly on the merits because of hisinvolvement with an earlier stage in the process that resulted inthe petitioner being made a suspect and finally culminated inthe petitioner being found guilty.
As I stated before, bias being insidious, one rarely, had toor, is indeed, able to prove actual bias on the part of anydecision – maker. I think appearances are everything. Thisperhaps explains why it is very often said that justice "must be
seen to be done".
R. u. Sussex Justices, ex parte Me Carthy (Supra) isconsidered a landmark decision of the question of bias. MeCarthy was sued for damages and prosecuted for dangerousdirving after having been involved in a motor -cycle accident.The magistrate's clerk for the criminal prosecution wasemployed by a firm of solicitors which was the same firm thatwas acting in civil proceedings for a client that was taking thecivil action against Me Carthy. This was the only connectionbetween the clerk and the defendant. The clerk retired with themagistrates when they considered their verdict and themagistrates proceeded to find Me Carthy guilty. Me Carthysought to have the conviction quashed. The mere presence ofthe clerk was considered sufficient for a writ of certiorari to begranted to quash the conviction. It is in this case that LordHewart CJ made that statement which has become justlycelebrated: "It is not merely of importance, but of fundamentalimportance, that justice should not only be done, but shouldmanifestly and undoubtedly be seen to be done".
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I have cited the above case with a purpose, that is, in orderto emphasize one fact viz. that it is crucial that justice shouldnot be compromised by the least suspicion of impropriety inthe decision – making process for "justice is the most sacredthing on earth".
In deciding what degree of suspicion (of bias) determineswhen a decision should be set be aside on the ground of bias,the courts have evolved different tests which until quite recentlywere considered as alternatives. On the one hand, there is aninvestigation of the real likelihood of bias. This test addressesthe particular case in hand and inquires whether, in the givencircumstances, there was a real chance that the alleged biasmight have had some effect on the decision – making processthat, in fact, took place.
If, for example, this test had been applied in ex parte MeCarthy case referred to above, the conclusion might well havebeen that the conviction or the decision on the magistratesshould not be set aside and should have remained in place,because although the association existed which later excitedsuspicion, the clerk may not have been aware of the associationand he may have taken no part in the actual deliberations ofthe magistrates. On the other hand, reasonable suspicion putsthe test onto a somewhat higher plane. The idea here is that ifany reasonable person would so much as suspect that biasmight arise, then this will be enough to satisfy the test.
It is clear that whatever test that one may adopt one hasno choice, in the circumstances of this case, but to hold thatthe decision complained of is destitute of all force and is anullity as it is vitiated, also, by bias. Even if the formula of "reallikelihood of bias" – Which is more favourable to the decision -maker and less favourable of the petitioner – is adopted, thedecision of the 2nd respondent is liable to be quashed:
(i) one can say that bias in-the 2nd respondent's heart has
un-wittingly, so to say. overflowed into his words or speech.
The 2nd respondent has, to say the least, had made some
CA
Geeganage u. Director General oj Customs
(U. de Z. Gunawardena, J.)
201
injudicious observations, at the very outset i.e. on08. 07. 1996. To reproduce those observations in exactlythe same words as had been used by the 2nd respondent:"Before the commencement of the inquiry I instruct theprosecution and the investigation officers of the preventiveto do further investigation regarding this case. When I wentthrough the inquiring file I found no proper investigation •had been done and there may be fresh evidence against thesuspect if proper investigation could be done in this case.Therefore, I postpone this inquiry until the PreventiveInvestigation Division submit a fresh investigation report tome soon. The next date will be informed." Implicit in theobservation of the 2nd respondent reproduced above is, atthe lowest, a feeling in him that the suspects might get offundeservedly owing to the incompleteness or theunsatisfactory nature of the investigations and not becausethey were innocent.
One must, of course guard against over – judicialisation ofprocedures to be followed by administrative officers,investigating officers and the like but the above remarksmade by the 2nd respondent serve to show that he was notdisinterested in the outcome of the ultimate decision. Thereis reasonable suspicion that the 2nd respondent hascommitted himself somewhat firmly with the prosecutionas to make it difficult for him to deal fairly with the case onits merits:
(ii) as explained above, the 2nd respondent had omitted toconsider the points that told in favour of the petitioner. Theupshot of all this was that the petitioner had not had thebenefit of a fair – hearing. Suspicion may arise, perhaps,faint though it be, that the 2nd respondent had pretendednot to notice such significant facts as that the check of thecargo to be undertaken by petitioner was not an article byarticle check, that the strap seal was broken and was notintact at the relevant time and that more than three hourshad elapsed since container had left the premises of theport. It had been said in R o. London County Council.
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Empire Theatre1171 that "preconceived opinions – though itis unfortunate that a judge should have any – do not
constitute such a biasfor it does not follow that the
evidence had been disregarded."
But, in the case before me, the situation is just the opposite,and two vital pieces of evidence favourable to the petitioner hadbeen, by accident or design, passed over, and particularly againstbackground of the preliminary observations referred to abovemade by the 2nd respondent (which showed that he was lackingin detachment and was not disinterested in the outcome) andhis failure to give reasonably sufficient time to enable thepetitioner to file written submissions, there is room for areasonable man to think that the 2nd respondent unfairlyrefrained from considering what was favourable to thepetitioner, because 2nd respondent was biased against thepetitioner and was not "persuadable". Although the 2ndrespondent's remarks reproduced above seem to suggest verystrongly that he was dissatisfied at the outset with the paucityof evidence that was available to him and had even directed theofficers to unearth or obtain more evidence – yet interestingly,he had gone on to find the petitioner guilty, on the self-sameevidence, notwithstanding the fact that additional evidence wasnot at all forthcoming. In considering whether the 2nd respondentwas affected by bias one has to consider the impression givento other people. If in the order of the 2nd respondent, he hadconsidered and attached sufficient weight to the points in thepetitioner's favour that would have tended, in some measure,to erase the impression of apparent bias created by othercircumstances.
The learned Senior State Counsel somewhat hinted at thefact that the inquiry held by the 2nd respondent was notimpressed with the character of a "judicial" or "quasi-judicial"proceedings. 1 cannot bring myself to accept that positionbecause the 2nd respondent had to make a decision which clearlyaffected the rights and even the personal liberty of the partiesbefore him. If the petitioner fails to pay the penalty he willundergo a jail sentence. It is true, or rather it used to be true.
CA
Geegariage u. Director General of Customs
(U. de Z. Gunawardena, J.)
203
that traditionally, the rule against bias or interest applied onlyto decision – making processes which the courts classified as"judicial" or "quasi – judicial". Today, that is not quite the idea.The learned Senior State Counsel must be thinking of thattheory which is obsolescent if not obsolete. The learned SeniorState Counsel seems to be oblivious to the fact that the idea ofprocedural fairness has resulted in the extension of a right to afair – hearing being applied to a much broader range of activitiesand decision – making. The learned Senior State Counsel, whois somewhat of a recognised authority on these matters knows,and that for certain, that the not so recent judgement in R. v.Secretary State Jor Environment, ex. P. Kirkstall ValleyCampaign Ltd.1181 opens up the dramatic possibility of anextension in the ambit of the rule against bias or interest. Inthat case Sedley J. stated thus: "I hold, therefore, that theprinciple that a person is disqualified from participation in adecision if there is real danger that he or she will be influencedby a pecuniary or personal interest in the outcome, is of generalapplication in public law and is not limited to judicial or quasi-judicial bodies or proceedings".
I should further note that the amount of time that a partyhas been given to reply to the case, if any, against him is asignificant factor. Even if details of the opposing case areprovided there is undoubtedly a need for the petitioner to havebeen given a proper opportunity to respond to the show causenotice against him and to prepare a case. The 2nd respondentshould have conducted himself with more humanity, if not withanything else. The requirements of a fair hearing are not, ofcourse, rigid or fixed but will vary with the circumstances of thecase. In this case before me there were substantial differences(on the evidence) on issues of fact because the petitionerchallenged the prosecution case, almost, in its entirety. Thedifferences on vital issues could not be resolved without anadequate opportunity being given to the petitioner to respondto the prosecution case by means of either oral or writtensubmissions. The petitioner's counsel in his writtensubmissions had impressed on me that the petitioner was givenless than 24 hours to file submissions in writing. The 2nd
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respondent ought not have treated the application for reasonabletime to file written submissions, on behalf the petitioner, solightly and so flippantly. In fact, the petitioner was given lessthan six daylight hours to file submissions. One somehow, getsan uneasy – feeling that it was done in that way to make itimpossible for the petitioner to accomplish the task. The 2ndrespondent (inquirer) had made the direction on
07. 1996 around 5 R M. that the written submissions of thepetitioner be filed by 12 noon on the very next day on whichlatter day itself the order of the 2nd respondent had beendelivered imposing the oppressive penalty.
And it is as clear as clear can be that the 2nd respondenthad expected the petitioner's counsel to conjure up submissionsin consequence of which the apparent opportunity given to filesubmissions became, a veritable sham. The situation that arosein this case is somewhat reminiscent of what happened inR. u. Thames Magistrates' court ex P. Polemis"9>. The facts are:the captain of a ship received summons to the Magistrate'scourt on the day that his ship was due to sail. He was chargedwith discharging oil into the Thames. An adjournment wasrefused by the court and he was found guilty and fined. Theconviction was quashed because the defendant had not beenallowed sufficient time to respond. The principle involved inboth cases, broadly speaking, is identical. In the case beforeme, as in the case above – mentioned, the suspect had not beengiven a reasonable opportunity to prepare the defence. LordWidgery asserted in the Polemis case, cited above, that in suchcircumstances requirements of justice would not have satisfiedthe test of being manifestly seen to be done, whatever thejurisdiction. It is to be observed that when the petitioner failedto submit written submissions, the 2nd respondent promptlydelivered the order finding the petitioner guilty which makesme wonder whether the 2nd respondent was not predisposedin favour of the prosecution, if, in fact, he had not pre-judgedthe case.
I cannot think of a more befitting quotation with which tocrown or conclude what I had said in this order on the aspect
CA
Geeganage v. Director General of Customs
(U. de Z. Gunawardena, J.)
205
of bias and more particularly of a party's right to respond tothe case against him than an excerpt from Lord Denning'sHamlyn Lectures which were said to be made somewhere in1949. To quote: " I know of nothing which is so essential to aright decision as to have the benefit of arguments which put
forward all that can be said on each sideevery tribunal
should give a reasoned decision, just as the ordinary courts do.Herein lies the whole difference between a judicial decision andan arbitrary one".
As Lord Musthill observed in the Doody case to which Ireferred in my judgment in CA861/98 the "standards of fairnessare not immutable". The demands of fairness will be determinedby the context of the decision. In the circumstances, in theunusually short period of time that was given to the petitionerto prepare and make submissions in writing, my own view isthat no worthwhile representations could have been made onhis behalf unless, perhaps, the counsel was gifted withexceptionally great mental ability which species is a rarity. Almostall the points considered in this judgment had not been raisedby the counsel. But, what I have done is not without precedent.
J. L. Jowell (Professor of Public Law in the University ofLondon) had said that where Lord Denning could be faultedwas in taking points of law or fact as the basis of his judgmentwhen these had not been argued and when an opportunity wasnot given to controvert the points involved. But the points I haveconsidered in this judgment are all matters borne out by therecord and are incontrovertible facts or immutable principleswhich are so well known, such as that in a case of this sortcharge has to be proved beyond a reasonable doubt.
The procedure adopted by the 2ml respondent is contraryto natural justice. Under the judicial review procedure, the courtis not concerned with the merits of the case, whether thedecision was right or wrong, but whether it was lawful orunlawful. In the words of Lord Brightman: "judicial review isconcerned not with the decision, but: with the decision – making- process" – Chief Constable of the North Wales, Police u.Evans1201 at 1173.
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The decision of the 2nd respondent is flawed by bias. Inaddition, as indicated above, one can recognise from the factof the record all the errors of law conceivable: it is an error oflaw to give inadequate reasons, to act on no evidence, to act onevidence which ought to have been rejected, or to fail to takeinto consideration evidence which ought to have beenconsidered and to apply the wrong burden of proof. The 2ndrespondent had, in fact, been oblivious to the aspect of burdenof proof, as had been others of even very greater eminence.
For the aforesaid reasons I do hereby grant an order ofcertiorari quashing the order (or the report) of the 2nd respondentdated 18. 07. 1996.
Application allowed