B Surinder Singh Kanda v The Government of The Federation of Malaya

JurisdictionUK Non-devolved
Judgment Date1962
CourtPrivy Council
Year1962
Date1962
HOUSE OF LORDS B. SURINDER SINGH KANDA APPELLANT; AND GOVERNMENT OF THE FEDERATION OF MALAYA RESPONDENT. ON APPEAL FROM THE COURT OF APPEAL OF THE SUPREME COURT OF THE FEDERATION OF MALAYA. 1962 April 2. LORD DENNING, LORD HODSON and LORD DEVLIN.

Malaya - Police - Constitution - Power of dismissal - Whether in Commissioner of Police or in Police Service Commission - Conflict between Constitution and existing law - Constitution provisions paramount - Dismissal of inspector by Commissioner of Police void - Police Ordinance (Malaya), 1952, ss. 9 (1), 45 (1) - Constitution of the Federation of Malaya, August 31, 1957, arts. 135 (1) (2), 140 (1), 144 (1), 162 (1) (4) (6). - Natural Justice - Opportunity to meet charge - Dismissal of public servant - Police disciplinary proceedings - Findings of board of inquiry furnished to adjudicating officer but not to accused police officer - Constitution of the Federation of Malaya, art. 135 (2).

Article 135 (1) of the Constitution of the Federation of Malaya, which came into operation on Merdeka Day (August 31, 1957), provided: “No member of any of the services” — which included the police service — “shall be dismissed … by an authority subordinate to that which, at the time of the dismissal … has power to appoint a member of that service of equal rank.”

By art. 140 (1): “There shall be a Police Service Commission, whose jurisdiction shall, subject to article 144, extend to all persons who are members of the police service.”

Article 144 (1) provided: “Subject to the provisions of any existing law and to the provisions of this Constitution, it shall be the duty of a Commission … to appoint … and exercise disciplinary control over members of the service … to which its jurisdiction extends.”

In July, 1958, the Commissioner of Police in Malaya purported to dismiss the appellant, an inspector of police, on the ground that at an inquiry before an adjudicating officer he had been found guilty on a charge of failing to disclose evidence at a criminal trial. While under the law as it existed before Merdeka Day the commissioner had, pursuant to the Police Ordinance, 1952, power to dismiss an inspector, the appellant contended that after the coming into force of the Constitution that power was only in the Police Service Commission, to which the commissioner was a subordinate authority, and he sought a declaration that his purported dismissal by the commissioner was void and of no effect:—

Held, that the provision in article 144 (1) of the Constitution that the functions of the Police Service Commission were “subject to the provisions of any existing law” meant only such provisions as were consistent with the commission carrying out the duty entrusted to it. Where, however, as here, there was a conflict between the existing law and the Constitution the former would have to be modified so as to accord with the latter, and the court itself, where the Head of the Federation of Malaya had not done so under article 162 (4) of the Constitution within the prescribed time limit, could and would under article 162 (6) make the necessary modification in the powers of the Commissioner of Police. There could not, at one and the same time, be two authorities with concurrent power to appoint members of the police service. The Constitution must prevail and the existing law must be applied with such modification as might be necessary to bring it into accord with it. Accordingly, since Merdeka Day the commission and not the commissioner had power to appoint and dismiss members of the police service and the dismissal of the appellant by the commissioner was therefore void.

Held, secondly, that the failure to supply the appellant with a copy of the report of the board of inquiry, which contained matter highly prejudicial to him and which had been sent to and read by the adjudicating officer before he sat to inquire into the charge, amounted to a failure to afford the appellant “a reasonable opportunity of being heard” in answer to the charge within the meaning of article 135 (2) of the Constitution and to a denial of natural justice (post, p. 338).

Order of the Court of Appeal of the Supreme Court of the Federation of Malaya reversed.

APPEAL (No. 9 of 1961) from an order of the Court of Appeal of the Federation of Malaya (December 9, 1960) setting aside a judgment of the High Court at Penang (March 24, 1960).

The following introductory statement is taken from the judgment of the Judicial Committee: The appellant, B. Surinder Singh Kanda, was an inspector of police in the Royal Federation of Malaya Police. On July 7, 1958, he was dismissed by the Commissioner of Police on the ground that he had been guilty of an offence against discipline. Inspector Kanda brought an action in the High Court challenging that dismissal. Rigby J. declared that his dismissal was void and of no effect. The Government appealed. The Court of Appeal by a majority (Thomson C.J. and Hill J.A., with Neal J. dissenting) allowed the appeal and held that inspector Kanda was validly dismissed. He now appealed to their Lordships' Board.

The appeal raised two questions: (1) The first question was whether the Commissioner of Police had any power to dismiss him. Inspector Kanda said that under the Constitution the power rested only with the Police Service Commission: (2) The second question was whether the proceedings which resulted in his dismissal were conducted in accordance with natural justice. Inspector Kanda said they were not.

The Federation of Malaya came into being on Merdeka Day, that was, August 31, 1957. Thenceforward the Constitution was the supreme law of the Federation (article 4). The Supreme Head of the Federation was the Yang di-Pertuan Agong (article 32). Great changes were made in the structure of government. In particular the public services were placed under commissions. Thus a Police Service Commission was set up with jurisdiction over all members of the police service (article 140). But the persons serving in the police force continued in general to have the same powers and functions as before (article 176). And for the most part the existing laws were continued unchanged (article 162).

In September, 1957, after Merdeka Day, two men were charged in the Supreme Court at Penang with uttering forged lottery tickets. The prosecution failed. The reason was because the prosecution called a number of witnesses, including police officers, whose evidence was palpably false. The two accused men were acquitted. The Commissioner of Police ordered an inquiry to be held. The board of inquiry was presided over by Mr. D. W. Yates, a very senior police officer. It reported that false evidence had been fabricated for use at the trial.

After considering the report the Commissioner of Police decided that proceedings should be taken against inspector Kanda. Not criminal proceedings before the courts of law, but disciplinary proceedings under what the Police Regulations called “Orderly Room Procedure.” The commissioner appointed Mr. Strathairn to be the adjudicating officer to inquire into the charges. Mr. Strathairn was junior to Mr. Yates who had conducted the inquiry. Mr. Yates drafted a specimen charge, but Mr. Strathairn preferred his own. He drafted another. The charge, as eventually laid against inspector Kanda, was that he had failed to disclose evidence which to his knowledge could be given for the two accused men: or alternatively, that he had been guilty of conduct to the prejudice of good order and discipline in that he had submitted investigation papers to his superior officer knowing the same to be false. Another charge was afterwards added that he wilfully disobeyed a lawful command to subpoena a witness.

In April and May, 1958, the charges were heard by Mr. Strathairn, the adjudicating officer. He found inspector Kanda guilty on the original charge of failing to disclose evidence and recommended that he be dismissed from the Force. He also found him guilty on the added charge of disobeying a lawful command and recommended an award of a severe reprimand. The Commissioner of Police approved the recommendations: and on his direction, on July 7, 1958, inspector Kanda was formally notified that he was dismissed from the Force. On July 14, 1958, inspector Kanda appealed to the Ministry of Defence and also to the Police Service Commission. (He did that because he was not sure which was the right authority to hear his appeal.) Over a year later, on July 19, 1959, the secretary to the Police Service Commission informed him that his appeal was dismissed. It was not contended that, by that internal appeal within the administration, he in any way waived his right to apply to the courts.

On October 1, 1959, inspector Kanda brought this action against the Government of the Federation of Malaya claiming a declaration that his dismissal was void, inoperative and of no effect. He put it on two grounds: (1) His dismissal was effected by an authority which had no power to dismiss him, contrary to article 135 (1) of the Constitution; (2) he was not given a reasonable opportunity of being heard, contrary to article 135 (2) of the Constitution.

1962. Feb. 8, 12, 13, 14. Rodney Bax for the appellant. The main and short point is that the purported dismissal of the appellant by the Commissioner of Police on July 7, 1958, was, as the trial judge found, invalid because the commissioner on that date no longer had power to dismiss him. Article 4 of the Federal Constitution provides that the Constitution “is the supreme law of the Federation.” Article 135 (1), which is absolutely vital and has no qualification whatever, enacts that “No member of any of the services” — which includes the police — “shall be dismissed … by an authority subordinate to that which, at the time of the dismissal … has power to appoint a member of that service of equal rank.” Article 140 (1) established a Police Service Commission, and article 144 (1) provided that...

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