Kanda v Government of the Federation of Malaya: PC 2 Apr 1962

A police Inspector had been dismissed on a finding of an offence against discipline. . He complained that he had not been allowed to see the report of the Board of Inquiry which contained prejudicial material and which had been relied upon by the officer adjudicating his case.
Held: The failure amounted to a denial of a reasonable opportunity of being heard in answer to the charge and was unfair. Where a conflict was found between an existing law and a provision of the constitution, the Constitution had to prevail.
An essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet.
Lord Denning said: ‘In the opinion of their Lordships, however, the proper approach is somewhat different. The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex in causa sua: and Audi alteram partem. They have recently been put in the two words, Impartiality and Fairness. But they are separate concepts and are governed by separate considerations. In the present case inspector Kanda complained of a breach of the second. He said that his constitutional right had been infringed. He had been dismissed without being given a reasonable opportunity of being heard.
If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence is given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them . . it follows, of course, that the Judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The Court will not enquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the Judge without his knowing.’ Lord Denning considered the conflict between the provisions under review and the Malaysian constitution: ‘If there was in any respect a conflict between the existing law and the Constitution . . then the existing law would have to be modified so as to accord with the Constitution.’ and ‘In a conflict of this kind between the existing law and the Constitution, the Constitution must prevail. The court must apply the existing law with such modifications as may be necessary to bring it into accord with the Constitution.’

Lord Denning, Lord Hodson, Lord Devlin
[1962] AC 322, [1962] UKPC 2, [1962] 2 WLR 1153, [1962] UKPC 10
Bailii, Bailii
England and Wales
Cited by:
CitedRegina v Criminal Injuries Compensation Authority ex parte Leatherland and Criminal Injuries Compensation Board ex parte Bramall and Criminal Injuries Compensation Panel ex parte Kay Admn 4-Apr-1998
. .
CitedRamda, Regina (on the Application of) v Secretary of State for the Home Department Admn 27-Jun-2002
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CitedRidge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .
CitedRegina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
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CitedDirector of Public Prosecutions of Jamaica v Mollison (No 2) PC 22-Jan-2003
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CitedBalkissoon Roodal v The State PC 20-Nov-2003
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CitedSecretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
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MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
CitedAl Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
CitedAl Rawi and Others v The Security Service and Others SC 13-Jul-2011
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Lists of cited by and citing cases may be incomplete.

Commonwealth, Natural Justice, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.251508