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LEGAL METHOD

LXEB 1101
INDIVIDUAL ASSIGNMENT
( CASE NOTE )

NAME: BONG XIN WEI


MATRIC NUMBER: LEB 140012
LECTURER: DR. FARAH NINI DUSUKI
TUTOR: DR. CHOONG SHAW MEI

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


[1962] 1 MLJ 169

Identification of the case:


In this case, the appellant is B. Surinder Singh Kanda who was an Inspector in the
Royal Federation of Malaya Police Force while the respondent is Government of the
Federation of Malaya. The judgement was at 2 April 1962 and delivered by Lord
Denning. The court that decided this case was Privy Court. The judges that involved
were Lord Denning, Lord Hodson and Lord Devlin. The counsel for the appellant was
Rodney Bax while for the respondent was Bledisloe Q.C. and Philip Clough.

Summary of the facts:


The appellant, B. Surinder Singh Kanda was appointed on probation as Inspector of
Police in the Royal Federation of Malaya Police in 1951 and permanently appointed
to the rank of Inspector on 1 June 1953. After that, he was charged under failing to
disclose evidence which to his knowledge could be given to two accused men and
disobeying a lawful command to subpoena a witness. On 7 July 1958, he was
dismissed by the Commissioner of Police. Having exhausted his departmental rights
of appeal, he commenced these proceedings on 1 October 1959. He asked for a
declaration and other consequential reliefs stating that his purported dismissal on 7
July 1958 was void, inoperative and no effect. He also claimed that he was still a
member of the Police Force. This was because the dismissal had been affected by an
authority subordinate which at the time of dismissal had power to appoint a member
of the Police Force of equal rank and this was contrary to Article 135(1) of the
Constitution. Other than that, he was not given a reasonable opportunity of being
heard and this was contrary with to Article 135(2) of the Constitution and natural
justice.

Procedural history:
Firstly, this case was held in High Court. The judge in High Court, Rigby J. held that
the power to appoint and dismiss officers of his rank was vested in the Police Service
Commission and Commissioner of Police was an authority subordinate to the Police
Commission and he had no power to dismiss him. He also held that even if
Commissioner had power to dismiss the plaintiff, his dismissal was contrary to natural
justice and in breach of the Constitution because the plaintiff was not given a
reasonable opportunity of being heard. The learned trial judge granted the declaration
that the dismissal was void, inoperative, no effect and he was still the member of the
Police Force. Due to this outcome, the respondent appealed to the Court of Appeal.
The Court of Appeal allowed the appeal and held that the plaintiff was validly
dismissed. And from the judgement, plaintiff appealed to the Privy Council.

Legal issues:
(i)

Whether the Commissioner of Police had any power to dismiss the plaintiff who
is a police officer with the rank of Inspector and did it contrary to Article 135(1)

(ii)

of the Constitution?
Whether the proceedings which resulted in the dismissal of plaintiff were
conducted in accordance with natural justice and did it contrary to Article
135(2) of the Constitution?

Decision of the court:


First, the appeal of appellant at Privy Court should be allowed. The order of the Court
of Appeal also should be set inside. Next, the dismissal of the plaintiff from the
Federation of Malaya Police Force by the Commissioner of Police of the Federation
of Malaya was void, inoperative and of no effect. Lastly, the respondents should pay
the costs of the appellant before their Lordships Board, in the Court of Appeal and in
the High Court.

Reasons for decision:


First, the court held that the dismissal of the plaintiff from the Federation of Malaya
Police Force by the Commissioner of Police of the Federation of Malaya was void,
inoperative and of no effect. This is because Article 135(1) of Federal Constitution
stated that No member of any of the services mentioned shall be dismissed or
reduced in rank by an authority subordinate, which at the time of dismissal or
reduction, has power to appoint a member of that service of equal rank. That means
the Commissioner of Police do not have the power to appoint Inspector of Police,
while the Police Service Commission have the power to appoint Inspector of Police.
Since the Commissioner of Police was an authority subordinate to the Commission,
he could not dismiss the plaintiff because he could not appoint him. Therefore, the
dismissal of the plaintiff was void, inoperative and no effect.
Prior to Merdeka Day, there was a law stated that the Commissioner of Police could
appoint superior police officers, including inspectors of police under section 9(1) of
the Police Ordinance 1952. And the Commissioner of Police also can dismiss an
inspector if he had been found guilty of an offence against discipline under section
45(1) of that Ordinance. This law conflict with our Federal Constitution, which is
under Article 135(1). At one and the same time, there cannot be two authorities, each
of them whom has a concurrent power to appoint members of the police service. One
or other must be entrusted with the power to appoint. However, if there was in any
respect a conflict between the existing law and the Constitution (such as to impede the
functioning of the Police Service Commission in accordance with the Constitution),
then the existing law would have to be modified so as to accord with the Constitution.
The modification is necessary because since Merdeka Day, it is the Police Service
Commission (not the Commissioner of Police) which has the power to appoint
members of the police. The Police Service Commission has the duty and power to
appoint all the members of the police service, and not merely the gazetted police
officers.
The court also held that reasonable opportunity of being heard is not given to the
appellant. This is because Article 135(2) of Federal Constitution stated that no
member of such services as aforesaid (the police service is one of these) shall be
dismissed or reduced in rank without being given a reasonable opportunity of being

heard. The appellant must know what evidence has been given and what statements
have been made affecting him, and then he must be given a fair opportunity to correct
or contradict them which appears in the cases such as Board Education v Rice and
Ceylon University v Fernando. The Report of the Board of Inquiry was sent to the
adjudicating officer but not the appellant. The appellant never had an opportunity of
dealing with it until the fourth day of the hearing of this action. This amounts to the
denial of natural justice. It was not correct when the adjudicating officer had the
Report of the Board of Inquiry unless the accused also had it and able to correct or
contradict the statements in it to his prejudice. In this case, risk of the occurrence of
prejudice had shown the breach of natural justice. No one who has lost a case believe
that he has been fairly treated if the other side had access to the judge without his
knowing.

Ratio decidendi:
First, the dismissal of the police officer with Inspector rank by the Commissioner of
Police was void, inoperative and of no effect. This is because this dismissal is against
the Article 135(1) of Federal Constitution. Only those who have the power to appoint
a police officer of a certain rank at that time can dismiss or reduce the police officer at
that equal rank. Next, the proceedings were not conducted in accordance with natural
justice. This is because the documents which related to the police officer were
provided to the officer that appointed to hear disciplinary charges but not the police
officer himself and caused him did not have a fair opportunity to correct or contradict
them. Right to be heard must be given to an accused man to know the case which is
made against him, what evidence is given, what statements have been made affecting
him and be given a reasonable opportunity to correct or contradict them.

Evaluation:
In my humble opinion, in this case, I agree with the decision made by the judges in
Privy Council. Although the dismissal of appellant by the Commissioner of Police is
allowed under Section 9(1) of Police Ordinance 1952, but it contradict with our
Constitution. Based on the principle of Ultra Vires, in a conflict of existing law and

between the existing law and the Constitution, the Constitution must prevail. The
Court apply the existing law with modifications to bring it into accord into the
Constitution, which is the Police Service Commission can appoint members of the
police service because they had the power since Merdeka Day. I see eye to eye with
the courts decision because at the same time, there cannot be two authorities whom
has a concurrent power to appoint members of the police service. To be fair to the
accused man, the dismissal should be done by the person that have the actual
authority and undergo the right proceedings. Hence, the decision of the court that held
the dismissal void, inoperative and of no effect is reasonable.
The decision of the Court that the reasonable opportunity of being heard should be
given to the appellant is also accurate. Its so unfair when someone get judge without
having their rights to correct or contradict the statements that had been made on him.
The adjudicating officer maybe is not bias and prejudice towards the appellant.
However, the rule against bias is one thing while the right to be heard is another thing.
These two rules are also important because both of them are the essential
characteristics of natural justice. The principle of Nemo judex in cause sua stated that
no person can judge a case in which he or she participates as a party. That means
nobody can judge on their own lawsuit, or else fair justice will not exist. While in the
principle of Audi alteram partem, it means hear the other side too or hear the
alternative party too. It means that no person should be judged without a fair hearing
and each party must be given the opportunity to respond to the evidence against them.
Both of this principle are very important. A fair and justice judgement must consider
the accused mans explanations and excuses. Thus, the right to be heard and the
opportunity to contradict the allegations must be given to every accused man. This
can prevent any bias, prejudice and unfairness in every judgement.

Conclusion:
In this case, the dismissal of the appellant by Commissioner of Police is void,
inoperative and of no effect. There is also a breach of natural justice in the dismissal.
Respondents should pay the costs of the court for the appellant.