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Published: Fri, 02 Feb 2018
Judicial Review Against Hong Kong Jockey Club
Judicial review is a legal process through which the Court of First Instance of the High Court exercises its supervisory jurisdiction over the activities of administrative bodies, which are usually government departments and those bodies which were set up in accordance with certain ordinances. It is well-established that, in principle, public law claims should be brought by way of judicial review.  “The underlying object of judicial review is to ensure that the authority does not abuse its power and the individual receives just and fair treatment and not to ensure that the authority reaches a conclusion, which is correct in the eye of law.”
In this case, it is necessary to determine whether Mr. X has sufficient interest (standing) to apply for a judicial review against the decision made by the Hong Kong Jockey Club (HKJC); and secondly, whether the decisions of the HKJC can be reviewable.
Applicant and Standing
Applicants in judicial review proceedings must have sufficient interest in the matter to which the application relates. Pursuant to section 21K(3) of the High Court Ordinance and Order 53, Rule 3(7), “the court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.” The courts have discretion as to whether to grant leave by setting the parameters of what does and does not constitute a ‘sufficient interest’ and deciding whether to apply different standards depending upon the precise remedy which is being claimed.
The English law on standing in judicial review was authoritatively set out by the House of Lords in Inland Revenue Commissioners v National Federation of Self-employed and Small Businesses (IRC case), where the potential arguability test was recognized. Lord Diplock was of the view that the court could “alter on further consideration in the light of further evidence [because] the discretion that the court is exercising at the [leave] stage is not the same as that which it is called upon to exercise when all the evidence is in [at the substantive hearing stage]”. In other words, a court was justified in granting a leave to apply for judicial review even if on the full hearing, it was held that the applicant did not have sufficient interest. This approach was adopted in the Court of Appeal’s decision in R v Director of Immigration, ex parte Ho Ming-sai, that it is sufficient for the applicant to satisfy the court that on further consideration at a subsequent hearing an arguable case might be demonstrated.
However, things have moved on since the formulation of the potential arguability test in IRC case. In a recent case, Sharma v Brown-Antoine, the Privy Council affirmed the arguability test as laid down by Lord Donaldson in R v Legal Aid Board, ex parte Hughes. Lord Bingham and Lord Walker noted that “the ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success”.
In Hong Kong, Keith JA in Wong Chung Ki v Chief Executive of HKSAR raised the possibility of a flexible test so that the test is one of arguability where the issue is one of statutory construction but is one of potential arguability where the issue is say, one of procedural fairness involving the investigation of facts. However, the Court of Final Appeal in Peter Po Fun Chan v Winie C.W.Cheung & Anor rejected Keith JA’s approach as it was in the view that the same test should be applicable whether the issue is one of law or fact. According to Chief Justice Li, the correct test for the grant of leave to apply for judicial review “would be better served by the adoption of the arguability test instead of the potential arguability test”.
Under the test, arguability means ‘reasonably arguable’ and ‘enjoys realistic prospects of success’. In this case, Mr. X, being the trainer of ‘Fortune’, did have a sufficient interest in the decision as his reputation would likely be tainted by this event. There is no difficult in manifesting Mr. X has an arguable case.
Respondent and Reviewability
Turning now to whether the Hong Kong Jockey Club (HKJC) should be amenable to judicial review.
Are decisions by private bodies reviewable?
Traditionally, only decisions that were made by governmental organizations were reviewable, which is commonly known as the public body approach. Since R v City Panel on Takeovers and Mergers, ex parte Datafin, the scope of judicial review has been extended. The concept of a public body is no longer confined to those authorities which exercise statutory power. So, “even if an administrative power does not have its origin in statute or subsidiary legislation, it may still be amenable to judicial review”.  In Datafin, the Panel was held to be subject to judicial review, despite its lack of statutory or prerogative source of power, because it was exercising public functions analogous to those which could be exercised by a government department. Lloyd LJ recognized that “it was necessary to look beyond the source of power and consider the nature of the power”  when the situation was unclear as to whether a body was set up under statute or by a delegated legislation. He observed that “if a body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may be sufficient to bring the body within the reach of judicial review.”
The Datafin’s decision extended the reviewability to those bodies whose birth and constitution did not relate to any exercise of governmental power but which had been woven into the fabric of public regulation. This approach was cited with approval in a Hong Kong case, King Prosper Trading v Urban Renewal Authority,  where Poon J expressed that “the court is not confined to considering the source of the body’s power alone but also looks to the nature of the function being exercised by that body when making the decision under challenge”.
Position of the Jockey Club
In R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan, Aga Khan sought judicial review of the JC’s decision to disqualify his winning horse from a race because it failed a dope test. He claimed that the decision was damaging to his status and reputation as an owner and breeder of racehorses. The court ruled that it had no jurisdiction as the relationship between racehorse owners and the Club, and the powers of the Club, were derived from agreements between the parties and was a matter of private rather than public law. Hoffman LJ even held that the power was entirely private in nature. According to Bingham MR, although the JC exercised an effective monopoly power over a significant national activity and received a public funding, “the origin, history, constitution and membership of the JC did not reflect its ‘public’ nature”. The court also held that the JC “neither by its framework or rules or function did it fulfill a governmental role”. Together with the finding that the powers exercised were not interwoven into a system of governmental control of the sport, the decision was held not reviewable.
In a more recent case, R (Mullins) v Appeal Board of the Jockey Club, where a horse was disqualified from the Hennessy Gold Cup due to the presence of a prohibited substance found in its urine, its trainer then sought to challenge the decision by way of judicial review, the court affirmed and applied the Aga Khan’s decision. The court even said that it would have reached the same decision even if it were free to reconsider the matter. The Appeal Board’s jurisdiction, like that of the Disciplinary Committee in Aga Khan, was derived from the Rules of Racing. Therefore, review of such disciplinary decisions is not a matter of public law.
From Aga Khan and Mullins, the courts were contended that “the relationship between a sports governing body and its members is generally private and contractual in nature”, thereby giving rise to private rights on which effective actions for a declaration, an injunction or damages might be asked without resort to judicial review. In Mullins, the court was of the view that the JC’s powers and duties were derived from the contractual relationship between the JC and those agreeing to be bound by its rules. Indeed, if there is no contract between Mr. X and the HKJC, no power is conferred to the HKJC to disqualify ‘Fortune’, together with the fact that the decision did not really affect the public at large, the remedies available to Mr. X should be limited to private law ones.
Furthermore, pursuant to Rule 2 of the Rules of Racing and Instructions made by the Stewards of the Hong Kong Jockey Club,  any person who gets him/herself involved in horseracing agrees to be bound by the rules. And it is clearly provided in Rule 12(20)  that one of the powers of the stewards is “to disqualify for the race any horse which in their opinion gained an unfair advantage at the start”. This means that the Stewards of the HKJC have a wide discretion as to determine whether a horse should be disqualified according to their self-formulated policies and guidelines. In such circumstances, the courts are even more reluctant to interfere. 
Together with R v Disciplinary Committee of the Jockey Club, ex parte Massingberd-Mundy and R v Jockey Club, ex parte RAM Racecourses Ltd, the courts have made it crystal clear that the decisions of the Jockey Club do not normally fall within the scope of public law.
For every sport, there is always a self-regulated governing body regulating it, therefore, the main governance within sport is internal. However, ‘self-regulation’ actually creates confusion as to whether judicial review can be used hold these bodies accountable for their decisions, as it is rather confused whether these bodies are in fact private or public in nature. As we can conclude from all the aforementioned case laws, the courts have been acted consistently in holding that the actions by the sports governing bodies are not within the scope of public law, therefore not susceptible to judicial review.
Though R v Insurance Ombudsman Bureau, ex parte Aegon Life did not involve any sports governing bodies, it is possible to gain a better insight regarding the courts’ attitude towards self-regulating bodies. In that case, the Insurance Ombudsman Bureau, a self-regulating agency recognized in the Financial Services Act 1986, was held not amenable to judicial review as its powers were “derived from voluntary contracts between the bureau and member insurance companies”.  The court further opined that “a monopolistic body which permitted no alternative market might not be subject to judicial review”, especially when it was a free standing independent body whose jurisdiction depended on the contractual consent of its members.
Academically, Simon Boyles provided a rationale for the courts’ reluctance to intervene in decisions made by sporting bodies. In his opinion, this was because these bodies usually have more expertise and specialist knowledge that the courts have placed trust in. As Woodhouse put it, “our courts appear to trust … in the fairness of the internal disciplinary procedures of sporting organizations.”  Therefore, the courts have been slow to interfere with findings of fact by ‘specialist tribunals’ like the sports disciplinary tribunals or governing bodies.
A recent case, McKeown v British Horseracing Authority,  affirmed that the court’s jurisdiction in public law is only ‘supervisory’ in nature and that its function is to ensure that the primary decision-making body operates within lawful limits. The courts prefer to leave the application of the rules of sport to the expert bodies set up to regulate those activities, and do not normally intervene unless something has gone badly wrong. Thus, by drawing an analogy to Mullins, the decision of the Appeal Board in this case is not likely to be reviewable.
Though it is academically argued that sporting bodies like the JC are of more substantial and ‘socioeconomic’ importance than at the time of Aga Khan so that extra accountability should be imposed in the interests of justice, I beg to differ. Even if the JC is gaining greater importance, it does not convert a private function into a public one. Some academics do argue on the ground that the JC receives substantial sums from the government derived from the betting levy, thereby demonstrating horseracing occupies a necessarily public place in society. However, as Stanley Burton J expressed in Mullins, “in any event, state funding is a weak indication that a body or its functions are public. Many indisputably private bodies, such as many bodies whose activities are cultural, and many charities, receive state funding; this does not make them governmental in nature.”
I do agree with Bingham LJ’s view that the power exercised by the JC was public. However, it is important to note that the judicial review is a mechanism for the control of the exercise of public power by the government and that for all their legislative powers. Obviously, decisions made by the sports governing bodies are beyond the scope of judicial review. This is supported by Sir John Donaldson MR in Datafin, who referred to the control of ‘executive’ rather than the public power. The term ‘executive’ actually implies a dual requirement that the power must be a ‘public’ one and ‘exercised by the government’. However, there is no explicit relationship between the regulation of racing and government. Moreover, it is doubtful whether the government will really step in and assume control of horseracing if the JC is dissolved. I concur with Rose J that “a far more likely intervener … would be a television or similar company rooted in the entertainment business or a commercial company seeking advertising benefits.” Indeed, I think the government’s attitude to horseracing is “much more akin to the attitude to religion”, which is something ‘encouraged’ but not the business of the government. 
The fact that the JC exercises monopoly control over horseracing does not necessarily mean that its decisions should be subject to judicial review. As in R v Football Association, ex parte Football League Limited, where the Football Association shared a similar position as the JC in Hong Kong. Rose J held that “Despite its virtually monopolistic powers and the importance of its decisions to many members of the public who are not contractually bound to it, … it is a domestic body whose powers arise from and duties exist in private law only.” “The justification for the continuing treatment of the administrative authority of sports bodies as being domestic in nature is that the required level of governmental involvement and / or linkage to a scheme of statutory regulation cannot be identified.”  Although monopolistic bodies exercising power over the livelihoods of a considerable number of people might warrant greater regulation and public review by the courts, the courts have appeared firm in their belief that “the desirability of such regulation and review cannot convert a private function into a public one”.
What cannot be ignored is the source of power. The powers and duties of the JC, despite of its dominant position in a national sport, are not derived from statute or ordinance but acquired from the private contractual agreements between the Club and those who agree to be bound by the Rules of Racing. Its importance within racing is maintained through the issue of licences and permits by which the Club enter into contracts with racecourse managers, owners, trainers and jockeys, who must have submitted to the Club’s regulatory code, the Rules of Racing.
In Mullins, Stanley Burton J noted that “The JC cannot enforce its rules otherwise than by means of its contract, or the exercise of its property rights. None of its rules has any statutory force … a body which would otherwise exercise only private functions cannot assume public functions by its own action alone.” This further shows that the court was contended that there should be at least some governmental intervention in order to hold a decision reviewable.
And indeed, as indicated by Nagle v Feilden, even if there is no contract on which the applicant of judicial review can rely on, the court in Nagle held that it was still possible for her to obtain a declaration and an injunction. Therefore, it can be concluded that there is adequate protection available without resorting to judicial review. As Farquharson LJ stated in Aga Khan, “there could be no hardship to the applicant in his being denied judicial review because if his complaint that the disciplinary committee had acted unfairly was well-founded, he could have proceeded by writ seeking a declaration and an injunction; a tactic which may be a more convenient process”.
In my opinion, if the decisions made by the disciplinary committee or Appeal Board of the JC are held to be reviewable, it will imply that the decisions made by all other sport regulators in the exercise of their disciplinary powers are likely to be subject to judicial review as well. This will definitely give rise to a floodgate problem, and the ‘discretions’ of these bodies will be taken away. Therefore, it is desirable that judicial review should not be extended to bodies whose powers are derived from agreement of the parties and when effective private law remedies are available against the body.
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