Bias is one of the grounds of judicial review in Singapore administrative law which a person can rely upon to challenge the judgment of a court or tribunal, or a public authority's action or decision. There are three forms of bias, namely, actual, imputed and apparent bias.
If actual bias on the part of an adjudicator can be proved, the High Court can quash the decision. Cases of actual bias are rare due to the difficulty of proving the existence of a prejudiced judicial mindset. Imputed bias arises when a decision-maker has a pecuniary (monetary) or proprietary (property related) interest in the decision he or she is charged to adjudicate. The courts have also extended the category of imputed bias to situations where adjudicators have personal, non-pecuniary interests in decisions. The existence of a situation leading to an imputation of bias warrants the decision-maker being automatically disqualified.
Even if actual or imputed bias cannot be proved, an appearance of bias is sufficient for a judgment or decision to be set aside. The legal test for establishing apparent bias in Singapore has been the subject of some controversy. In the cases of Jeyaretnam Joshua Benjamin v. Lee Kuan Yew (1992) and Tang Liang Hong v. Lee Kuan Yew (1997), the Court of Appeal stated that the test should be "reasonable suspicion", that is, the court should ask itself whether "a reasonable and fair-minded person sitting in court and knowing all the relevant facts [would] have a reasonable suspicion that a fair trial for the applicant was not possible". However, after a number of cases which established that a "real likelihood" test should be applied in the UK, the High Court in Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board (2005) expressed the obiter view that there was in fact no material difference between the two tests. In Re Shankar Alan s/o Anant Kulkarni (2006), a different High Court judge disagreed with this view, holding that the reasonable suspicion test is less stringent as it requires a lower standard of proof than satisfaction on a balance of probabilities. He expressed preference for the reasonable suspicion test over the real likelihood test. As of January 2013, the Court of Appeal had not yet ruled on the matter.
Doctrine of bias Bias is one of the grounds of judicial review in Singapore. It is an aspect of the principle nemo iudex in causa sua – no one should be a judge in his or her own cause – which is regarded as one of the twin pillars of natural justice.The other pillar being audi alteram partem, literally "hear the other party". As Lord Hodson put it in Ridge v. Baldwin (1963),. one of the features of natural justice is "the right to be heard by an unbiased tribunal".Ridge v. Baldwin, p. 132.
Prior to Ridge v. Baldwin, UK law drew a distinction between situations where decision-makers were under a legal duty to act judicially or quasi-judicially, and situations where they were regarded as acting in a purely administrative manner. Decision-makers were only required to comply with the requirements of natural justice in the former situation.. The position in Singapore was the same. In an old Straits Settlements case originating from Singapore, Alkaff and Co. v. The Governor in Council (1937),Alkaff and Co. v. The Governor in Council M.L.J. [Malayan Law Journal] 211, M.L.J. Rep. 202, S.S.L.R. [Straits Settlements Law Reports] 201, Court of Appeal (Straits Settlements). the Straits Settlements Court of Appeal noted that in order for the law relating to bias to apply to the Commissioner of Lands, it was "first necessary for the Court to be satisfied that he was acting in a judicial or quasi-judicial capacity".Alkaff M.L.J. at p. 213, M.L.J. Rep. at p. 204. However, in Ridge v. Baldwin the House of Lords found this distinction to be false. Thus, the legal position today is that all public authorities, whether judges or administrative officers, must comply with the rules of natural justice.
What public authorities must do to avoid bias was expressed in the High Court of Singapore decision Re Singh Kalpanath (1992)Re Singh Kalpanath 1 S.L.R.(R.) [Singapore Law Reports (Reissue)] 595, High Court (Singapore). by Justice Chan Sek Keong as follows: "A judge is expected to maintain the highest standard of conduct in the exercise of his functions. He must bring an open and impartial mind to the determination of the dispute before him and must not act in any way which compromises the integrity of the judicial process."Kalpanath, p. 628, para. 86. In Kalpanath, it was stated that there are three kinds of bias: actual, imputed and apparent bias.Kalpanath, p. 625, para. 76.
Actual bias If actual bias on the part of a judge or tribunal can be proved by a party to a legal proceeding, or on the part of a public authority by a person aggrieved by its decision, the High Court can quash the judgment or decision. A decision-maker will be deemed actually biased if it is shown that he or she was influenced by partiality in reaching the decision or was actually prejudiced in reaching the decision.. In Chee Siok Chin v. Attorney-General (2006),. allegations of actual bias were made based on the actions of the judge, Justice Belinda Ang. Her failure to prevent the opposing counsel from interrupting the appellant was supposedly reflective of a biased state of mind.Chee Siok Chin, p. 546, para. 6. Justice Ang adopted the view in Locabail (UK) Ltd. v. Bayfield Properties Ltd. (1999). that cases of actual bias are rare due to the difficulty of proving the existence of a prejudiced judicial mindset. Rather, the inclination of the law "is to protect litigants who can discharge the lesser burden of showing a real danger of bias without requiring them to show that such bias actually exists".Locabail, p. 472.
The allegations of actual bias in Chee Sok Chin were deemed to be "entirely frivolous and ludicrous", in that "a fair-minded and reasonable observer would hardly on those flimsy grounds" conclude that Justice Ang "would not be able to make an objective and impartial decision of the matters" before her as another impartial judge would.Chee Siok Chin, p. 548, para. 10. Citing Tang Liang Hong v. Lee Kuan Yew (1997),. an apparent bias case, the judge said that claims of actual bias need to be based on facts which are "substantially true and accurate".Tang Liang Hong, p. 597, para. 51, cited in Chee Siok Chin, p. 548, para. 12.
In Hennedige Oliver v. Singapore Dental Council (2007),. the High Court held that members of the Disciplinary Committee ("DC") of the council had not acted in a biased manner towards Hennedige even though they had interjected a number of times during Hennedige's testimony, and had treated the person who had lodged a complaint against Hennedige gently but had cross-examined Hennedige robustly and strongly challenged his evidence. This was because the members of the DC were entitled to seek clarifications from Hennedige. Furthermore, his evidence covered much wider ground than the complainant's, and part of Hennedige's oral evidence at the inquiry did not feature in his written explanation. The nature of the Hennedige's answers at the inquiry warranted the additional questions, and he must have expected his peers in the DC to question him thoroughly on his many assertions.Hennedige, p. 563, para. 24.
There have been a number of cases in which allegations of actual bias have been made out. In Wong Kok Chin v. Singapore Society of Accountants (1989),Wong Kok Chin v. Singapore Society of Accountants 2 S.L.R.(R.) 633, H.C. (Singapore). the High Court held that people hearing disciplinary proceedings have to approach the issue with an open mind without prejudgment.Wong Kok Chin, p. 657, para. 54. In this instance, the members of the Society's Disciplinary Committee had gone beyond their authority to carry out a due inquiry and had caused the inquiry to become an inquisition aimed at securing evidence to justify a finding of guilt.Wong Kok Chin, p. 658, para. 55. Likewise in Singapore Amateur Athletic Association v. Haron bin Mundir (1993),Singapore Amateur Athletic Association v. Haron bin Mundir 3 S.L.R.(R.) 407, C.A. (Singapore). the Court of Appeal stated that the slanted questions and preconceived views of the Association's disciplinary subcommittee had breached natural justice. The hearing had been "more like an inquisition to vindicate the corporate views of the appellants" than a dispassionate attempt at finding the truth.Haron bin Mundir, p. 427, paras. 68, 71 and 73. In Chiam See Tong v. Singapore Democratic Party (1993),Chiam See Tong v. Singapore Democratic Party 3 S.L.R.(R.) 774, H.C. (Singapore). Chiam challenged his expulsion from the political party following a hearing before the disciplinary committee of the Party's Central Executive Committee ("CEC"). The High Court found that the members of the disciplinary committee had been biased, as was reflected in the confrontational and hostile tone taken by certain CEC members. In addition, some of them had acted as judges in their own cause as they had been the object of remarks made by Chiam, which had prompted the disciplinary proceedings.Chiam See Tong, pp. 787–788, paras. 49–52..
Imputed bias Arising from a pecuniary or proprietary interest
Bias may be imputed to a decision-maker when he or she has a pecuniary (monetary) or proprietary (property related) interest in the decision he or she is charged to adjudicate. This form of bias warrants the decision-maker being automatically disqualified from exercising its powers. The rule is vigorously enforced to protect the maxim enunciated by Lord Chief Justice Hewart in R. v. Sussex Justices, ex parte McCarthy (1923)R. v. Sussex Justices, ex parte McCarthy 1 K.B. 256, High Court (Divisional Court) (England and Wales). that "justice should not only be done, but should manifestly and undoubtedly be seen to be done".Ex parte McCarthy, p. 259, cited in , and .
A pecuniary or proprietary interest can arise in two ways. First, the decision-maker may have an interest of this nature in one of the parties involved in a matter. Secondly, the decision-maker may have a pecuniary or proprietary interest in the outcome of the decision placed before him or her. The two situations are not mutually exclusive – in a 1999 decision, the Court of Appeal of Victoria held that it is not a judge's mere shareholding in a party "but rather it is the potential interest, created by that shareholding, in the subject matter or outcome of the litigation which is the disqualifying factor".. A seminal case in this respect is Dimes v. Grand Junction Canal Proprietors (1852).Dimes v. Grand Junction Canal Proprietors (1852) 3 H.L. Cas 759, H.L. (UK). In that case the Lord Chancellor, Lord Cottenham, was found to have an interest as a shareholder in a company which was a party to a suit presented to him. As this fact was discovered after his Lordship had heard the suit, he was disqualified on the ground of his interest and the decree he issued was held to be voidable. The House of Lords said that it is "a settled principle of constitutional law that a man cannot be judge in his own cause".Dimes, p. 773. In Alkaff, the Straits Settlements Court of Appeal recognised that a financial interest may affect a person with bias.Alkaff M.L.J. at pp. 219–220, M.L.J. Rep. at p. 210.