Re Shankar Alan s/o Anant Kulkarni was a 2006 administrative law judgment in which the High Court of Singapore quashed a decision made by the Disciplinary Committee of the Law Society of Singapore against a lawyer, Alan Shankar s/o (son of) Anant Kulkarni. The Disciplinary Committee had found Shankar, who was a solicitor, guilty of grossly improper misconduct under the Legal Profession Act. Shankar applied to the High Court for judicial review on the ground that the Committee's ruling was affected by apparent bias.
Judicial Commissioner Sundaresh Menon considered the differences between two commonly used tests for apparent bias: the "real likelihood" and "reasonable suspicion" tests. He held that there were notable differences between the two tests, contrary to the previous view taken by a different High Court judge in Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board (2005). He took the view that the reasonable suspicion test was the applicable test in Singapore.
Two other legal issues were also considered, namely, whether the Disciplinary Committee had applied the wrong standard of proof, and whether it had shown a sufficient degree of detachment. Menon eventually decided the case in favour of Shankar and quashed the Committee's ruling.
Facts and issues
The complainants, Abdul Malik bin Sukor, an undischarged bankrupt, and his wife, Mislia binte Yusof, wished to sell their Housing and Development Board flat in Woodlands. They sought the help of a real estate agent named Rudolph Khoo, who informed them that Malik would have to be discharged from his bankruptcy before they could sell their flat. Khoo offered to help the complainants obtain a loan of S$25,000, to be repaid upon the sale of the flat. To facilitate these procedures, Khoo introduced a lawyer, Alan Shankar s/o (son of) Anant Kulkarni, to the complainants, who was to assist them in applying for a discharge from bankruptcy on Malik's behalf, acting for them in the sale of their flat, and documenting several loans that they had procured from one Chiang Bin Kwang..
The loans from Chiang were to be repaid with the proceeds from the sale of the flat. Following this, Mislia asked for two more loans from Chiang, which Shankar helped to arrange. In total, she signed three agreements to borrow a sum of $88,500, consisting of $45,000, $30,000 and $13,500 on three separate occasions. However, Mislia claimed she only received $40,000, consisting of $25,000, $10,000 and $5,000 on each of the occasions. Four years later, the complainants lodged a complaint against Shankar with the Law Society of Singapore. Following an investigation, Shankar was tried by the Disciplinary Committee of the Law Society and convicted of three counts of grossly improper conduct contrary to section 83(2)(b) of the Legal Profession Act.Cap. 161, 2001 Rev. Ed. (now ). The charges were based on allegations that Shankar had acted for both the complainants and Chiang without advising the complainants of the consequences of this conflict of interest, that he had not taken full instructions from the complainants, that he had asked the complainants to sign documents without properly explaining their effect, and that he had not ascertained whether the sums of money that Chiang paid to Mislia were in line with the loan agreements.Shankar, pp. 89–90, paras. 4–8; and p. 91, paras. 14–15.
During the Disciplinary Committee hearing, Mislia had testified that Chiang had issued her cheques for the first two loans, but that they had gone to Chiang's bank where he had cashed the cheques and then given her only part of the face value of the cheques. To counter this evidence, Shankar had called two bank employees as witnesses. He claimed that the Disciplinary Committee had questioned the bank witnesses more aggressively than the complainants or Shankar himself, and had essentially cross-examined the witnesses to induce them to make certain factual concessions which weakened Shankar's case.Shankar, pp. 91–92, paras. 16–17.
Shankar sought an order from the High Court to quash the Disciplinary Committee's decision finding him guilty of the charges. The issues before the Court were:Shankar, p. 95, para. 28.
Whether the Disciplinary Committee had acted in a manner that gave rise to apparent bias or a reasonable suspicion of bias. Whether the Disciplinary Committee had maintained a degree of detachment necessary to give the applicant a fair trial. Whether the Disciplinary Committee had applied the wrong standard of proof during the inquiry.
The High Court found in favour of Shankar on the first and second issues,Shankar, p. 131, para. 124. but not on the third issue due to insufficient evidence.Shankar, pp. 96–98, paras. 36–40.
Decision of the court
Test for apparent bias: reasonable suspicion v. real likelihood
The main ground of Shankar's judicial review application was apparent bias. Apparent bias occurs when there is an objective perception that an administrative or judicial body has decided, or would decide a matter unfairly, and it affords a basis for judicial review. At common law, there are two main tests to determine the presence or absence of apparent bias, namely the "reasonable suspicion of bias" and "real likelihood of bias" tests. A jurisdiction may adopt either of the two tests.Shankar, p. 98, para. 44. The following definitions of the two tests were applied in Re Shankar:
Real likelihood of bias test – whether the court is satisfied that there was a sufficient possibility that the administrative body was biased.Shankar, pp. 102–103, para. 61. Reasonable suspicion of bias test – whether a reasonable member of the public could harbour a reasonable suspicion of bias by the administrative body.Shankar, pp. 106–107, para. 72.
Position taken in Tang Kin Hwa In Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board (2005),. the High Court previously expressed the view that there was no material difference between the reasonable suspicion and real likelihood tests. Judicial Commissioner Andrew Phang held that the key question was whether a reasonable member of the public would perceive a real likelihood of bias, and that this was simply another way of saying that there would be a "reasonable suspicion" on the part of an objective observer.Tang Kin Hwa, pp. 617–618, para. 39. As such, he found no material difference between the two tests, although he specified that this was not a definitive finding and invited clarification from the Court of Appeal.Tang Kin Hwa, p. 620, para. 45.
Judicial Commissioner Menon dedicated a significant portion of his decision to considering whether there was a material difference between the two tests. He eventually departed from the view in Tang Kin Hwa that both tests were the same, stating that while the tests might produce the same results in most cases, there were notable differences in the substance of both tests, as well as the perspective from which the court determines whether the test is satisfied..
Difference in perspectives The inquiry into apparent bias, according to Judicial Commissioner Menon, should be based on the perspective of a reasonable member of the public. This is due to the need to ensure that decisions of courts and tribunals are beyond reproach in the eyes of the lay person. In holding thus, he quoted similar remarks made by the High Court of Australia in Johnson v. Johnson (2000),. to the effect that impressions on the public must be considered since it is the public's confidence which has to be "won and maintained".Johnson, pp. 506–508.
An examination of English cases led the judge to conclude that the "real likelihood" test no longer adopted this perspective. He considered that the case of R. v. Gough (1993). had shifted the perspective to be adopted – from that of the reasonable person, to that of the court. In Gough, the House of Lords held that there was no need to require courts to adopt the perspective of a reasonable person. This was because the court itself personified the reasonable person in such cases. Further, the court had to ascertain the circumstances from evidence available to it, even if that evidence might not be available to a member of the public at the relevant time.Gough, p. 670. This stood in contrast to the holding in Metropolitan Properties Company (F.G.C.) Ltd. v. Lannon (1968),. where Lord Denning, the Master of the Rolls, held that in applying the real likelihood test the inquiry was whether a reasonable man would think that there was bias, and not whether there was in fact bias. He added that "confidence is destroyed when right-minded people go away thinking ‘the judge was biased'".Metropolitan Properties, p. 599.
As such, Judicial Commissioner Menon considered that the inquiry under the real likelihood test had been shifted from the perspective of a reasonable member of the public to that of a judge. He adopted the summary of this shift given by Lord Justice of Appeal Simon Brown in R. v. Inner West London Coroner, ex parte Dallaglio (1994):R. v. Inner West London Coroner, ex parte Dallaglio 4 All E.R. 139, C.A. (England and Wales). "[T]he court is no longer concerned strictly with the appearance of bias but rather with establishing the possibility that there was actual although unconscious bias."Ex parte Dallaglio, p. 152. He also agreed with the Australian High Court's comments in Webb v. The Queen (1994). that the real likelihood test tended to emphasize the court's view of the facts, and placed irregular emphasis on public perception.Webb, pp. 50–51. As such, it differed in perspective from the reasonable suspicion test, which remained centered on the viewpoint of the reasonable member of the public.Shankar, pp. 103–104, paras. 62–64.
Difference in substance Aside from the difference in perspective, Judicial Commissioner Menon held that there was a difference of substance in terms of what the court had to consider under each test. He endorsed the holding of Justice William Deane in Webb that under the real likelihood test the court has to inquire into the existence of actual bias, with "possibility" as the required standard of proof.Webb, pp. 70–71. In contrast, under the reasonable suspicion test, the question is whether a member of the public would reasonably suspect that bias was afoot, even if the court itself was satisfied that there was no possible bias. The standard of proof for this test is the "balance of probabilities".Shankar, p. 105, para. 69; and p. 107, para. 74.
The case of R. v. Sussex Justices, ex parte McCarthy (1923) provides an illustration of the differences. In that case, the person who acted as clerk to certain magistrates was a member of a law firm that represented a party with an interest in the outcome of a matter being decided by the magistrates. When the magistrates withdrew to consider the matter, the clerk went with them in case they needed advice on any legal issues. However, the magistrates reached a decision without consulting the clerk. Thus, on the facts of the case, there was no possibility of actual bias whatsoever. Yet the decision in question was set aside because justice had to be seen to be done. Judicial Commissioner Menon highlighted that the underlying principle protected the appearance of justice being done, and reasoned that it would not be relevant under such a principle to consider whether justice was actually done. Nor did he think that Gough could be reconciled with ex parte McCarthy, despite the attempt in Gough attempt to confine the latter case to its own facts. In his view, the two tests were therefore different in substance, in addition to the different perspective that each test adopted.Shankar, pp. 105–106, paras. 70–71. Furthermore, those differences were sometimes material in deciding a case; for example, the choice of the real likelihood test was a deciding factor of the result in Gough.Shankar, p. 100, para. 53(b).