22 govt proceedings and judicial review
TRANSCRIPT
22 Government Proceedings amp Judicial Review
PROCEEDINGS BY amp AGAINST THE GOVERNMENT- 1048612 Rules apply to the government in the same way as suits against private persons
SUBJECT tondash 1 the Government Proceedings Act s 18 GPAndash 2 See also Order 73
1 Differences in substantive law causes of action- In general s 5 GPA- Government is liable in tort for wrongful acts done by public officer
ndash Section 5 equates govtrsquos liability for acts and omissions of public officer with that of private principal for acts and omissions of agent
Liability of Government in tort5 Subject to the provisions of this Act the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal being a private person is liable for any wrongful act done or any neglect or default committed by his agent and for the purposes of this section and without prejudice to the generality thereof any public officer acting or purporting in good faith to be acting in pursuance of a duty imposed by law shall be deemed to be the agent of and to be acting under the instructions of the Government
- Caveat s 7ndash No action except for breach of contract on account of anything done or
omitted or refused to be done by government officer in lsquoexercise of public dutiesrsquo
ndash 4 specific categories listed ndash construction maintenance of eg railways roads bridges schools hospitals public buildings drainage works rivers waterways (ie all public works ndash cannot take out action for such cases)
Savings of acts done in exercise of public duties7 mdash(1) Notwithstanding any other provisions of this Act to the contrary no proceedings other than proceedings for breach of contract shall lie against the Government on account of anything done or omitted to be done or refused to be done by the Government or any public officer in exercise of the public duties of the Government (2) For the purposes of subsection (1) ldquoexercise of the public dutiesrdquo includes mdash (a) the construction maintenance diversion and abandonment of railways roads or bridges (b) the construction maintenance and abandonment of schools hospitals or other public buildings (c) the construction maintenance and abandonment of drainage flood prevention and reclamation works and (d) the maintenance diversion and abandonment of the channels of rivers and waterways
(3) Nothing in this section shall prevent the bringing of any suit for damages or compensation arising out of negligence or trespass in the execution of any works of construction or maintenance undertaken by the Government in the exercise of the said public duties
- 1048612 Swee Hong Investment v Swee Hong Exim [1994] 3 SLR 320ndash justice Michael Khoo - ndash Limited ambit of s 7 Word lsquoincludesrsquo in s 7 read as lsquomeans and includes ndash Ie exhaustivendash Exception was therefore limited to the 4 specific categories listed in s 7ndash In all other cases the government can be suedndash Held furnishing of answers to legal requisitions by the Development and
Building Control Division of MND did not come within s 7ndash Warren Khoo J held furnishing of answers to legal requisitions by the
Development and Building Control Division of Ministry of National Development did not come within section 7 Court held that the ambit of s 7 was limited The MND had given legal requisitions that were erroneous and hence tried to widen the ambit of s 7 in order to fall in it
2 Some particularities for procedure- No judgment in default of appearancepleading against the government without leave
O73r7 see AG v Phang Fook Seng [1999] 3 SLR 641ndash The plaintiff cannot get judgment in default even when the Government did
not file defence In the case the AG did not file defence CA held that an application for leave of Court was required before default judgment could be entered against the Government
- No summary proceedings against the government 73 r 5- No set off counterclaim in proceedings by the government for recovery of taxes
duties penalties and no claim to such set off etc in any other claim by the government O 73 r 4(1)
- No set-off counterclaim by person government in proceedings by against government without leave of court O 73 r 4(2)
- No third-party notice shall issue against the government without leave of court and the application for leave must be served on the plaintiff and the government O73 r 8
ndash Leave will not issue unless the court is satisfied the government has information as to the circumstances and the department or officers
- The court shall not grant injunction specific performance order for recovery or delivery of property against the government but may make a declaratory order s 27(1) GPA No order against officer either if the effect is to grant relief not obtainable against the government
ndash See Bocotra Construction v AG [1995] 2 SLR 523- Arbitration against govt dept arbitrator gave interim declaration- HC held tt this was improper and no such thing as interim
declaration - No interim declarations to get around the interim injunction
prohibition
- High Court held grant of interim declaration preventing PWD from calling upon a letter of guarantee by arbitrator to be incorrect Interim declarations could not exist in law as final legal rights were not being declared It does not make logical sense to have interim declaration
- Court held that no interim declaration to be granted in order to get around the interim injunction prohibition High Court held grant of interim declaration preventing PWD from calling upon a letter of guarantee by arbitrator to be incorrect Interim declarations could not exist in law as final legal rights were not being declared
ndash Koh Ah Kow v PP [1995] 2 SLR 342- NO order of Specific Performance can be issued against the Govt
in civil proceedings in which it is a party [s 27(1)(a) GPA] - Equityrsquos maxim of lsquoequity looks on that as done which ought to be
donersquo not applicable here as it could not be exercised against a third party ndash ie the govt
- Case involved the eviction of a tenant from state land granted to the Japanese Association Specifically there was an agreement to lease bet the govt and the JA The applicant was served with a notice to quit possession [being a former tenant to the former occupiers of the land the land having being acquired by the govt subsequently] Applicant argued that the land was not lsquostatersquo land by virtue of the agreement to lease and that the govt had no power to evict him
- Discovery s34(1) GPA and O73 r 10 No disclosure of existence of document if existence of document is in opinion of Minister injurious to public interest
ndash Discovery only under order of court- Order 73 rule 11 Powers of the court to take evidence from subjects are equally
exercisable in proceedings by or against the Govt- Enforcement Orders 45 to 52 do not apply O 73 r 12(1)- No execution or attachment for enforcing payments by the government Order 73 rule
131- No garnishee order against government but court may make order restraining the
payee from receiving money and directing payment to be made on the judgment creditor receiver Order 73 rule 132
- No proceedings in rem against govt s35 GPA
3 Parties s19 GPA- 1048612 Civil proceedings by the government may be commenced by the authorised
government department or by AGndash In practice usu the AG does so
- 1048612 Civil proceedings against the government shall be commenced against the appropriate government department or against the AG s 19 (see Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR 582)
ndash But none of departments gazetted so shld just commence against AG
ndash O15 ndash can use AG to subtitutendash But case struck out because no merits anyway
- 1048612 Where instituted against the department department may apply to substitute AG or vice versa
- 1048633 Change in person holding office as AG or in persons constituting the department does not abate the action s 19(5) GPA
Representation s24 GPA- 1048612 A legal officer may appear as advocate on behalf of government s 24(1) GPA- 1048612 A legal officer may appear as advocate on behalf of a public officer who is a party
by virtue of office or in personal capacity if the AG certifies representation to be in the public interest s 24(2) GPA
- 1048612 AG may retain advocate and solicitor to act s 24(3) GPAndash Eg big cases can retain senior counsel
Service Order 73 rule 3- 1048612 Service on solicitor or person acting as solicitor for department if no solicitor or
AG is a party serve on the AG- 1048612 Order 73 r 3 personal service not required- Can leave document or send by prepaid post to person to be served under the GPA or
any agent nominated for service
JUDICIAL REVIEW
Jurisdiction High Court- Cannot be brought in sub courts ndash only the HC has juris
ndash 1048612 Section 18(2) read with para 1 First Schedule Supreme Court of Judicature Act
- Powers to grant orders of mandamus prohibition and certiorari for the enforcement of rights
Mandamus ndash a command by the High Court Judge requiring a inferior tribunal company or person requiring him or them to do some particular thing which pertains to his or their office and is in the nature of a public duty
Prohibition ndash it operates as a preventive measure Its effect is to restrain an inferior court tribunal or public authority from exceeding its jurisdiction or from conducting or continuing proceedings in contravention of the law
Certiorari ndash to bring proceedings of an inferior tribunal before the High Court for review so that the court can determine whether to quash such proceedings The order will issue to quash a determination for excess or lack of jurisdiction error of law or breach of rules of nature justice
- 1048612 Cf lsquoprivate law remediesrsquo declaration injunction damages
- The process of judicial review can be defined as that by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior
courts tribunals and other bodies or persons who carry out quasi-functions or who charged with the performance of public acts and duties
- Colin Chan v PP [1994] 3 SLR 642ndash On the scope of the Courtrsquos power under s 18(2) SCJA ndash Effect ldquoIt is one thing to say that the court has a specific power to review but
another to infer that the court can exercise that power in every proceeding brought before itrdquo
ndash (1) A courtrsquos powers when sitting as an appellate court are necessarily limited to that of the subordinate court from which the appeal emanated
ndash (2) A criminal court has jurisdiction to consider a defence alleging that a subsidiary legislation is substantially invalid but cannot consider whether it is procedurally invalid Subsidiary legislation can therefore only be challenged if it is ultra vires its enabling Act or is invalid on the face of it
ndash (3) It is clearly not proper to raise ultra vires issues which extend beyond substantive validity in the sense of being clearly wrong on the face of it in subordinate court proceedings Nevertheless the court had to still take into account the fact that both parties were ad idem with each other as to the courtrsquos competence in determining all the issues raised This was therefore an appropriate case for the application of Lord Diplockrsquos second exception in OrsquoReilly v Mackman The facts of this case being undoubtedly exceptional in the interests of justice and in consideration
- Chin Hong Onn Ronny v Tanah Merah Country Club [2001] SGHC 101ndash can just file OS under ord civil proced ndash for such action can bring either in sub court or high court Jurisdiction
Subordinate Courts and High Courtndash in above case ronie chin a member of golfing club and while palying on
green ball ran out captain of bluc issued suspension order on Ronnie chin for 3 mths he filed OS one prelim pt raised by them was that need to go for judicial review
ndash court held tt many precedents wher such parties have used normal OS proced and court dimised the prelim objection of tanah merah country club
Whose decisions may be reviewed- 1048612 Judicial functions quasi-judicial functions exercise of lsquoprerogative powersrsquo See
Ridge v Baldwin [1964] AC 40- 1048612 Clubs domestic tribunals ndash jurisdiction different Role of court to ensure fairness of
proceedings not to assess evidence and result Court should see that natural justice applied
ndash Note ndash must be inferior tribunal cf court military appeal ndash is not an INFERIOR tribunal must follow appeal proced on tt Cannot be judicially reviewed
- Chin Hong Onn Ronny v Tanah Merah Country Club (unrepted HC)ndash The litigant sought judicial review of the Clubrsquos decision on his golfing
rights Court held in favour of the club- Re Singh Kalpanath Disciplinary Committee
ndash An application for the remedy of certiorari to quash the findings of a disciplinary committee on the basis of bias
Principles of natural justice- 1048612 Right to be heard by unbiased tribunal- 1048612 Right to have notice of charges of misconduct- 1048612 Right to be heard in answer to the charges
Examples- 1048612 Harun Mundir v SAAA Singapore Amateur Athletics Assoc- 1048612 Re Singh Kalpanath Disciplinary Committee- 1048612 A Kanesananthan v Singapore Ceylon Tamilsrsquo Association unincorporated
association- 1048612 Mohammed Aziz bin Ibrahim v PKMS political party- 1048612 Shorvon v SMC Singapore Medical Council- 1048612 Rehearing some precedence accorded to tribunal of first instance
ndash Ling Uk Choon v Public Accountants Board [2004] 3 SLR 517 Accountants Act ndash in isues of proff misconduct tribunal has best knowledge to deal with such issues
- 1048612 Where statute provides for appeal in relation to professional bodyrsquos findingsndash 1048612 Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151
Singapore Medical Councilndash this statute may itself prov for parties to apply to court when unhappy with
what SMC has decided
Ling Uk Choon and Another v Public Accountants Board [2004] 3 SLR 517- Facts- The appellants were certified public accountants Ryoma Steel Enterprise (S) Pte Ltd
(ldquoRyomardquo) their client complained to the Public Accountants Board (ldquothe Boardrdquo) that the appellantsrsquo had refused to return certain documents belongingto Ryoma An Inquiry Committee (ldquoICrdquo) was constituted which subsequently concluded that the appellants were guilty of improper conduct under s 34(1)(c) of the Accountants Act (Cap 2 2001 Rev Ed) (ldquothe Actrdquo) The IC also concluded that the appellants had refused to return the documents because they were under a mistaken belief that they were under a duty to disclose irregularities in those documents The Board accepted the findings of the IC censured both appellants and ordered each of them to pay to the Board a sum of $6281 being the costs and expenses incidental to the hearing held by the IC The appellants appealed against the decision of the Board to the High Court pursuant to s 36 of the Act
- Held allowing the appeal- Section 36 of the Act provided the appellants with a right of appeal to the High Court
The appeal against the decision of the Board to the High Court was by way of rehearing pursuant to O 55 rr 1 and 2 of the Rules of Court (Cap 322 R 5 2004 Rev Ed) Therefore the High Court was not confined to considering whether the rules of natural justice had been observed and whether the decision of the Board had been honestly reached at [27] [30] and [32]
- The courtrsquos role in the appeal- The Boardrsquos counsel Mr Devinder Rai initially argued that the courtrsquos role in the
appeal was limited to considering whether the rules of natural justice had been observed and whether the decision of the Board had been honestly reached A few cases were cited for this proposition However as the appellantsrsquo counsel Mr Quek Mong Hua rightly pointed out those cases involved applications seeking judicial review where there was no statutory right of appeal Here s 36 of the Act provides the appellants with a right to appeal to the High Court Order 55 r 1 of the Rules of Court (Cap 322 R 5 2004 Rev Ed) provides that the Order shall apply to every appeal which under any written law lies to the High Court from any court tribunal or person Order 55 r 2 provides that such an appeal ldquoshall be by way of rehearingrdquo
- Mr Quek relied on L P Thean Jrsquos judgment in Chew Kia Ngee v Singapore Society of Accountants [1988] SLR 999 where Thean J said at 1003 [8]
- Against that decision this appeal is now brought Under s 34(2) of the Act the procedure governing such an appeal is the same as that for appeals to the High Court from the decisions of District Courts in civil matters Like an appeal from the District Courts this appeal is in the nature of a re-hearing and the same principles apply as are applicable to an appeal to the High Court against the decision of the District Court
- Using the analogy of appeals from the district courts Mr Quek then further cited a passage from Singapore Civil Procedure 2003 (Sweet amp Maxwell Asia 2003) in respect of O 55D r 2 on the question of rehearing The passage cited was inaccurately set out in his further submissions and I set it out below
- 55D31 ldquoBy way of rehearingrdquo mdash This provision does not mean that the High Court hears the witnesses afresh The High Court reviews the whole of the evidence (so far as is relevant to the appeal) in the court below and the course of the trial The general practice is essentially a ldquorehearing on documentsrdquo in that the court sits to review the official transcript of the evidence the judgersquos notes and the grounds of his decision The court rehears counsel on the issues of fact or law or both which form the substance of the appeal The court is not confined to the issues raised by the parties on appeal and is not limited to making an order which should have been made by the court below but may consider any relevant facts which have occurred since the trial and may make such further or other orders as it deems fit according to the state of things at the time of the hearing of the appeal hellip
- It should be noted that the statute being considered in Chew Kia Ngee was the Accountants Act (Cap 2 1985 Rev Ed) and s 34(2) thereof states that the procedure governing appeals to the High Court ldquoshall be the same as for appeals to the High Court from decisions of District Courts in civil mattersrdquo On the other hand s 36(1) of the Act does not mention appeals from the district courts Accordingly one must be careful when citing Thean Jrsquos judgment on this point Fortunately the end result is the same because although s 36(1) of the Act does not mention appeals from the district courts O 55 rr 1 and 2 do provide that an appeal under any written law to the High Court shall be by way of rehearing as I have mentioned
- However one should also be careful about citing the above passage from the Singapore Civil Procedure 2003 in respect of O 55D r 2 because O 55D pertains to appeals from the subordinate courts and not appeals under any written law There is a separate order for the latter ie O 55 Order 55 r 5(3) states that ldquoExcept with the
leave of the Court hearing any such appeal no grounds other than those stated in the notice of motion hellip may be relied upon by the appellant helliprdquo So for the purpose of O 55 it would be inaccurate to say that the court is not confined to the issues raised by the parties on appeal
- Nevertheless I accept that because the appeal before me is by way of rehearing I am not confined to considering whether the rules of natural justice have been observed and whether the decision of the Board had been honestly reached
- Indeed in further submissions Mr Rai no longer submitted that the courtrsquos role in a statutory appeal was as limited as originally suggested He pointed out that in Fox v General Medical Council [1960] 1 WLR 1017 Lord Radcliffe said at 1022
- Their Lordships think therefore that it would be an undue limitation of their duty and powers in dealing with the statutory appeal to require no more for the upholding of a determination than observance of what are known as the rules of natural justice
- However Mr Rai submitted that the decision of the tribunal below should be given some measure of precedence For this proposition he cited the following from Lord Radcliffersquos judgment in Fox at 1020
- The appeal in this case lies as of right and by statute ndash see section 36 of the Medical Act 1956 The terms of the statute that confers the right do not limit or qualify the appeal in any way so that an appellant is entitled to claim that it is in a general sense nothing less than a re-hearing of his case and a review of the decision Nevertheless an appellate court works under certain limitations which are inherent in any appeal that does not take the form as this does not of starting the case all over again and hearing the witnesses afresh In the High Court where appeals to the Court of Appeal are by function by way of re-hearing there are well-recognised principles which give some measure of precedence to the decisions of the tribunal that has seen and heard the witnesses over what might otherwise be the view of the facts preferred by the appellate court which has only the record of the evidence to study
- I do not disagree that the decision below should be given some precedence provided that the courtrsquos wider role in an appeal is borne in mind
Mohammad Aziz bin Ibrahim v PKMS [2003] SGHC 28- The plaintiffs were members of the defendants a political party The defendants
wrote to the plaintiffs informing them of a decision of the defendantsrsquo Executive Council to terminate their membership The plaintiffs replied that they had not been given an opportunity to defend themselves The defendants did not reply and instead summoned the plaintiffs to appear in two days before the Disciplinary Committee to answer charges against them The plaintiffs protested the lack of time to prepare their defence and reiterated that they would not be able to attend the hearing given their prior commitments The defendantsrsquo Disciplinary Committee met in the plaintiffsrsquo absence and decided to terminate the membership of the plaintiffs The plaintiffs were then summoned to appear before the defendantsrsquo Supreme Council The plaintiffs protested that the summons contained no details as to the allegations against them The defendants did not respond and proceeded to meet in the plaintiffsrsquo absence They decided to expel the plaintiffs and informed the plaintiffs of their decision in
writing The plaintiffs applied to court to have their expulsion declared null and void and to obtain a declaration that they are still members of the defendants as there was a breach of the rules of natural justice
- Heldo (1) Before a member could be expelled from an association he must have
had notice of the charges of misconduct which justified the termination of his membership and must have been given an opportunity to be heard by an unbiased committee
o (2) As a general rule before a person goes before a Disciplinary Committee he must have been given sufficient time to effectively prepare his defence The plaintiffs were not given sufficient time to prepare their defence There was a breach of the rules of natural justice The defendantsrsquo Supreme Council should not have taken into account the recommendations of the Disciplinary Committee
o (3) A person must be given sufficient particulars of the charge against him The notice to appear before the defendantsrsquo Supreme Council did not contain sufficient particulars of the charges against the plaintiffs The defendantsrsquo Supreme Council breached the rules of natural justice when the plaintiffs were expelled in their absence
o (4) As a matter of construction the defendantsrsquo constitution did not require the plaintiffs to exhaust their internal remedies before instituting legal proceedings The plaintiffs would have had difficulties framing an appeal given that they did not have adequate notice of the charges against them The defendants had wrongly given them six days to appeal when the defendantsrsquo constitution did not restrict the right of appeal
o (5) As the expulsion of the plaintiffs was in breach of the rules of natural justice their expulsion was declared null and void
Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151- Facts- The appellant Dr Chia Yang Pong (ldquoDr Chiardquo) a medical doctor pleaded guilty to
80 charges of professional misconduct before a hearing of the Disciplinary Committee of the Singapore Medical Council (ldquoSMCrdquo) The Disciplinary Committee convicted him of all the charges under s 45(1)(d) of the Medical Registration Act (Cap 174 1998 Rev Ed) (ldquoMRArdquo) and ordered that his name be removed from the Register of Medical Practitioners and that he be fined $1000 per charge on 65 of the 80 charges amounting to a total fine of $65000 Dr Chia appealed against these orders contending that the sentence was manifestly excessive and that his name should not be removed from the Register of Medical Practitioners Dr Chia also asserted that if his name was to be removed from the Register of Medical Practitioners then the fine should not have been imposed on him as well Dr Chia further submitted that the fine of $65000 exceeded the limit permitted by s 45(2)(d) of the MRA which provides that the powers of a Disciplinary Committee include the imposition of a fine not exceeding $10000 Dr Chia submitted that the $10000 limit applied to the entire proceedings before a Disciplinary Committee regardless of the number of charges levelled against the medical practitioner The SMC contended that
where a medical practitioner faced multiple charges the Disciplinary Committee had the power to impose an unlimited fine so long as the Disciplinary Committee did not impose a fine of more than $1000 per charge
- Held allowing the appeal in part- The court would accept as final and conclusive the finding of a Disciplinary
Committee on any issue of medical ethics or standards of professional conduct unless it was unsafe unreasonable or contrary to evidence The Disciplinary Committeersquos findings that Dr Chia was guilty of professional misconduct could not be said to be unsafe unreasonable or contrary to evidence Neither was the court able to say that Dr Chiarsquos professional misconduct did not warrant the removal of his name from the Register of Medical Practitioners at [7] to [9]
- - comment it depends on what the relevant statute provides for Judicial rview is confined to reviewing whether the relevant auth have exceeded their auth under the sttute
Tan Eng Chye v The Director of Prisons [2004] 2 SLR 640- Facts- The applicant pleaded guilty to a charge of robbery under s 392 of the Penal Code
(Cap 224 1985 Rev Ed) (ldquoPCrdquo) The punishment included caning The trial judge was concerned whether caning should be ordered as he had been informed that the applicant suffered from Marfan Syndrome a congenital condition affecting the heart eyes and other parts of the body The district judge postponed sentencing and asked for a medical report to be produced The medical report submitted merely stated that the applicant was fit for caning There was no indication that the doctor had even addressed his mind to the applicantrsquos condition or referred to the applicantrsquos previous medical records The district judge sentenced the applicant to imprisonment for four years and six months and 12 strokes of the cane The present application for leave to apply for an order of certiorari was brought on the basis that the medical assessment conducted was not sufficiently thorough
- The respondent objected to the application on the grounds that- the application was premature because the applicant would be examined again on the
day scheduled for caning- the application could have no useful outcome- the application was improper and that- there were no grounds to justify a review- Held granting the application- The application was not premature as it would be too late to seek redress when the
plaintiff was examined on the date of caning at [21] to [22]- The application could have a useful outcome from a ruling on the proper form of
medical examination and assessment to be done at [25]- There was no procedural deficiency in the application and no failure of disclosure by
the applicant at [28] and [32]- The proper medical assessment to be made under s 232(1) CPC was a matter suitable
for judicial review at [38] and [49]- Review and conclusion
- Under the law an offender is to be caned for the offence he committed But the law is not without compassion and it provides that before anyone is caned he is to undergo medical examination to ensure that he will not suffer serious unintended injuries Only those found to be fit to undergo caning will be caned For those who are found not suitable the sentence of caning is not to be carried out
- The applicant has been sentenced to be caned He has a medical condition Caning may have serious effects on him The district judge who convicted him was concerned and called for a medical report One was produced to him but it was clearly unsatisfactory There is no indication that the medical officer had called for or considered the applicantrsquos medical records There is no indication that the medical officer made an assessment of the severity of the applicantrsquos condition Indeed there is no indication whether any thought has been given to the effects that caning can have on the applicant who has Marfan Syndrome
- The applicant wants his condition to be given proper consideration He produced medical reports of the effects that caning may have on him to show that there is substance in his concern
- The respondentrsquos response is that the applicant does not have any recourse because there is to be another examination done before caning is administered but it gives no assurance that the examination will be more thorough than the one done on 16 October 2003
- In these circumstances there is a clear issue to be determined ndash whether the protection offered in s 232 of the Criminal Procedure Code is satisfied by that type of minimal certification or whether it requires more to be done
- The respondent says that the applicant should be shut out and not allowed to proceed further on the ground that it is a groundless or hopeless case or a misguided or trivial complaint and a waste of the courtrsquos time
- In Lai Swee Lin Lindarsquos case the Court of Appeal adopted Lord Diplockrsquos statement in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409 that
- For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself ie that part of the common law that is given by lawyers the label of ldquothe prerogativerdquo
- By this test the medical assessment to be made in compliance with s 232(1) of the Criminal Procedure Code to ensure that an offender is sufficiently fit to be caned is susceptible to judicial review The application is not groundless hopeless misguided trivial or a waste of time
- I therefore gave the applicant leave to proceed The respondent still maintains that he should not be allowed to proceed and has appealed against my order
Tan Eng Chye v The Director of Prisons (No 2) [2004] 4 SLR 521 - Held dismissing the application- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law to make decisions that would lead to administrative action by an authority endowed with executive powers which would have consequences affecting some person In the instant case Dr Ooirsquos decision was not amenable to judicial review as the district court judge was duty bound to impose the sentence of caning irrespective of Dr Ooirsquos report The remedy in the event of any dissatisfaction with the district court judgersquos order lay in the appeal process at [7] and [8]
- Since this was not a judicial review case at all it would be a pointless and unwarranted exercise to ask whether Dr Ooi had acted reasonably in the Wednesbury sense Tan could not be allowed to attack Dr Ooirsquos report Otherwise any party who was unhappy with a trial judgersquos decision but who had no valid grounds of appeal would be tempted to attack the evidence of witnesses such as the psychiatric expert or prison doctor at [10] and [11]
- Against the background of these statutory provisions it is apparent that the applicantrsquos case that Dr Ooi Poh Hinrsquos certification ought to be quashed because he did not take into account matters in the Wednesbury sense (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) was misconceived The making of this application indicated that the applicant had laboured under the mistaken belief that every act or conduct of a public servant is justiciable by way of a judicial review In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Diplock held at 408 that
- The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ldquodecision-makerrdquo or else a refusal by him to make a decision
- To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker although it may affect him too It must affect such other person either
- by altering rights or obligations of that person which are enforceable by or against him in private law or
- by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do so until there has been communicated to him some rational grounds for withdrawing it on which he had been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn hellip
- Lord Diplock further amplified what he said above by holding that- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph
- The report by Dr Ooi was obviously a ldquodecisionrdquo but that alone did not make Dr Ooi a ldquodecision makerrdquo in the sense explained in the Lord Diplock judgment above The district court judge as I had said was duty bound to impose the sentence of caning irrespective of what Dr Ooi might have said in his report Dr Ooi was a public servant discharging what I might call a ldquonon-decision makingrdquo duty in the Diplock sense Further examples of non-decision making conduct include acts of police officers such as in the arrest of a person suspected of committing an offence Such decisions of an arresting officer are not amenable to judicial review The rights of the arrested person lie in the criminal as well as civil law ndash not in an administrative action A public officer performing such duties cannot be made accountable by way of judicial review because the law would have provided avenues for redress in the case of any error or wrongdoing on the part of the public officer Sometimes the redress might not be adequate or obtained in time but that does not detract from the schematic structure of the complainantrsquos legal remedies An arrested person might be freed or charged If he is charged he may defend himself at trial If he is found guilty he has his right of appeal The arresting officer cannot be made to account for his action as to whether he had exercised Wednesbury reasonableness in deciding to arrest a suspect Every public officer will have made numerous decisions on a daily basis They cannot all be accountable for each and every one of those decisions in an administrative action even if they affect another person or body of persons otherwise the entire apparatus of public service might cease to function Similarly a medical officer performing his duty in determining whether a prisoner is fit for caning is not a ldquodecision makerrdquo in the Diplock sense The substantive administrative action would have been the decision of the judge who ordered the caning The remedy in the case of any dissatisfaction with that order lies in the appeal process In the case of the medical officer reporting under a s 232 (1) situation the substantive administrative action or the Diplock ldquodecision makingrdquo function lies with the prison authority which may stop the caning If it does not exercise that function the remedy lies in an action against the prison authority for failing to discharge its statutory duty For these reasons the applicant had no merit in applying for leave to issue an application for an order of certiorari Accordingly this application before me must be dismissed
When may decisions not be reviewed- Cannot just file for JR must look to nature of decision
ndash Contractualndash Or sth tt SHLD be judicially reviewedndash Eg contract with PWD merely matter of contract
- 1048612 Look to the source of the power that is being challenged- 1048612 Instances where judicial review will NOT lie
ndash Person carrying out only a private duty Re Fong Thin Choondash Re Fong Thin Choo [1992] 1 SLR 120
- This was a case involving an application for an order of prohibition against the Director-General of Customs and Excise
- Held
- (1) DG was carrying out Public Duty - (2) S 27 GPA did not prevent a court from granting an order of
prohibition against public acts [State Counsel had argued that no prohibition was possible since it would be tantamount to granting an injunction against the govt which is prevented by s 27 GPA ndash argument rejected]
- (3) Scope of Review -- whether the DG in reaching his decision had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the statute he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider On the facts the DG had failed to consider the Applicantrsquos evidence Order of Prohibition granted [ie Wednesbury Unreasonableness]
- Even if it is a public authority may still be an issue of private and not public law such as contract
- If the applicant asserts rights which lie in private law rather than public law judicial review is not available
ndash Chan Mun Poy v DG of Telecommunications [installation of telephone line]
- Court held tt merely matter of contract - case involving installation of telephone line the applicant sought
an order of mandamus against the respondent to reinstall a telephone line Held that the rights and liabilities in this case arose out of the contract between the applicant and respondent and dismissed the application
ndash Exp Lavelle [employment at BBC]- BBC owned by state in past query was contract of emplyt ndash
cannot be judicially reviewed- ndash a case concerning employment at the BBC - Held that it concerned a contractual matter even though the BBC
was a public bodyndash Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
[employment by PSC]- CA held that this was a contractual relationship between PSC and
Linda Lai This was a case on employment by the PSC The Court rejected the arguments raised to bring it into ldquopublic lawrdquo arena (ie PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation)
- Linda loy in employ of PSC public servant instruction manual governing behaviour and discipline of public offiers throughout public service
- She argd tt this was matter for public law and tt JR shld be possible
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
(3) Nothing in this section shall prevent the bringing of any suit for damages or compensation arising out of negligence or trespass in the execution of any works of construction or maintenance undertaken by the Government in the exercise of the said public duties
- 1048612 Swee Hong Investment v Swee Hong Exim [1994] 3 SLR 320ndash justice Michael Khoo - ndash Limited ambit of s 7 Word lsquoincludesrsquo in s 7 read as lsquomeans and includes ndash Ie exhaustivendash Exception was therefore limited to the 4 specific categories listed in s 7ndash In all other cases the government can be suedndash Held furnishing of answers to legal requisitions by the Development and
Building Control Division of MND did not come within s 7ndash Warren Khoo J held furnishing of answers to legal requisitions by the
Development and Building Control Division of Ministry of National Development did not come within section 7 Court held that the ambit of s 7 was limited The MND had given legal requisitions that were erroneous and hence tried to widen the ambit of s 7 in order to fall in it
2 Some particularities for procedure- No judgment in default of appearancepleading against the government without leave
O73r7 see AG v Phang Fook Seng [1999] 3 SLR 641ndash The plaintiff cannot get judgment in default even when the Government did
not file defence In the case the AG did not file defence CA held that an application for leave of Court was required before default judgment could be entered against the Government
- No summary proceedings against the government 73 r 5- No set off counterclaim in proceedings by the government for recovery of taxes
duties penalties and no claim to such set off etc in any other claim by the government O 73 r 4(1)
- No set-off counterclaim by person government in proceedings by against government without leave of court O 73 r 4(2)
- No third-party notice shall issue against the government without leave of court and the application for leave must be served on the plaintiff and the government O73 r 8
ndash Leave will not issue unless the court is satisfied the government has information as to the circumstances and the department or officers
- The court shall not grant injunction specific performance order for recovery or delivery of property against the government but may make a declaratory order s 27(1) GPA No order against officer either if the effect is to grant relief not obtainable against the government
ndash See Bocotra Construction v AG [1995] 2 SLR 523- Arbitration against govt dept arbitrator gave interim declaration- HC held tt this was improper and no such thing as interim
declaration - No interim declarations to get around the interim injunction
prohibition
- High Court held grant of interim declaration preventing PWD from calling upon a letter of guarantee by arbitrator to be incorrect Interim declarations could not exist in law as final legal rights were not being declared It does not make logical sense to have interim declaration
- Court held that no interim declaration to be granted in order to get around the interim injunction prohibition High Court held grant of interim declaration preventing PWD from calling upon a letter of guarantee by arbitrator to be incorrect Interim declarations could not exist in law as final legal rights were not being declared
ndash Koh Ah Kow v PP [1995] 2 SLR 342- NO order of Specific Performance can be issued against the Govt
in civil proceedings in which it is a party [s 27(1)(a) GPA] - Equityrsquos maxim of lsquoequity looks on that as done which ought to be
donersquo not applicable here as it could not be exercised against a third party ndash ie the govt
- Case involved the eviction of a tenant from state land granted to the Japanese Association Specifically there was an agreement to lease bet the govt and the JA The applicant was served with a notice to quit possession [being a former tenant to the former occupiers of the land the land having being acquired by the govt subsequently] Applicant argued that the land was not lsquostatersquo land by virtue of the agreement to lease and that the govt had no power to evict him
- Discovery s34(1) GPA and O73 r 10 No disclosure of existence of document if existence of document is in opinion of Minister injurious to public interest
ndash Discovery only under order of court- Order 73 rule 11 Powers of the court to take evidence from subjects are equally
exercisable in proceedings by or against the Govt- Enforcement Orders 45 to 52 do not apply O 73 r 12(1)- No execution or attachment for enforcing payments by the government Order 73 rule
131- No garnishee order against government but court may make order restraining the
payee from receiving money and directing payment to be made on the judgment creditor receiver Order 73 rule 132
- No proceedings in rem against govt s35 GPA
3 Parties s19 GPA- 1048612 Civil proceedings by the government may be commenced by the authorised
government department or by AGndash In practice usu the AG does so
- 1048612 Civil proceedings against the government shall be commenced against the appropriate government department or against the AG s 19 (see Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR 582)
ndash But none of departments gazetted so shld just commence against AG
ndash O15 ndash can use AG to subtitutendash But case struck out because no merits anyway
- 1048612 Where instituted against the department department may apply to substitute AG or vice versa
- 1048633 Change in person holding office as AG or in persons constituting the department does not abate the action s 19(5) GPA
Representation s24 GPA- 1048612 A legal officer may appear as advocate on behalf of government s 24(1) GPA- 1048612 A legal officer may appear as advocate on behalf of a public officer who is a party
by virtue of office or in personal capacity if the AG certifies representation to be in the public interest s 24(2) GPA
- 1048612 AG may retain advocate and solicitor to act s 24(3) GPAndash Eg big cases can retain senior counsel
Service Order 73 rule 3- 1048612 Service on solicitor or person acting as solicitor for department if no solicitor or
AG is a party serve on the AG- 1048612 Order 73 r 3 personal service not required- Can leave document or send by prepaid post to person to be served under the GPA or
any agent nominated for service
JUDICIAL REVIEW
Jurisdiction High Court- Cannot be brought in sub courts ndash only the HC has juris
ndash 1048612 Section 18(2) read with para 1 First Schedule Supreme Court of Judicature Act
- Powers to grant orders of mandamus prohibition and certiorari for the enforcement of rights
Mandamus ndash a command by the High Court Judge requiring a inferior tribunal company or person requiring him or them to do some particular thing which pertains to his or their office and is in the nature of a public duty
Prohibition ndash it operates as a preventive measure Its effect is to restrain an inferior court tribunal or public authority from exceeding its jurisdiction or from conducting or continuing proceedings in contravention of the law
Certiorari ndash to bring proceedings of an inferior tribunal before the High Court for review so that the court can determine whether to quash such proceedings The order will issue to quash a determination for excess or lack of jurisdiction error of law or breach of rules of nature justice
- 1048612 Cf lsquoprivate law remediesrsquo declaration injunction damages
- The process of judicial review can be defined as that by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior
courts tribunals and other bodies or persons who carry out quasi-functions or who charged with the performance of public acts and duties
- Colin Chan v PP [1994] 3 SLR 642ndash On the scope of the Courtrsquos power under s 18(2) SCJA ndash Effect ldquoIt is one thing to say that the court has a specific power to review but
another to infer that the court can exercise that power in every proceeding brought before itrdquo
ndash (1) A courtrsquos powers when sitting as an appellate court are necessarily limited to that of the subordinate court from which the appeal emanated
ndash (2) A criminal court has jurisdiction to consider a defence alleging that a subsidiary legislation is substantially invalid but cannot consider whether it is procedurally invalid Subsidiary legislation can therefore only be challenged if it is ultra vires its enabling Act or is invalid on the face of it
ndash (3) It is clearly not proper to raise ultra vires issues which extend beyond substantive validity in the sense of being clearly wrong on the face of it in subordinate court proceedings Nevertheless the court had to still take into account the fact that both parties were ad idem with each other as to the courtrsquos competence in determining all the issues raised This was therefore an appropriate case for the application of Lord Diplockrsquos second exception in OrsquoReilly v Mackman The facts of this case being undoubtedly exceptional in the interests of justice and in consideration
- Chin Hong Onn Ronny v Tanah Merah Country Club [2001] SGHC 101ndash can just file OS under ord civil proced ndash for such action can bring either in sub court or high court Jurisdiction
Subordinate Courts and High Courtndash in above case ronie chin a member of golfing club and while palying on
green ball ran out captain of bluc issued suspension order on Ronnie chin for 3 mths he filed OS one prelim pt raised by them was that need to go for judicial review
ndash court held tt many precedents wher such parties have used normal OS proced and court dimised the prelim objection of tanah merah country club
Whose decisions may be reviewed- 1048612 Judicial functions quasi-judicial functions exercise of lsquoprerogative powersrsquo See
Ridge v Baldwin [1964] AC 40- 1048612 Clubs domestic tribunals ndash jurisdiction different Role of court to ensure fairness of
proceedings not to assess evidence and result Court should see that natural justice applied
ndash Note ndash must be inferior tribunal cf court military appeal ndash is not an INFERIOR tribunal must follow appeal proced on tt Cannot be judicially reviewed
- Chin Hong Onn Ronny v Tanah Merah Country Club (unrepted HC)ndash The litigant sought judicial review of the Clubrsquos decision on his golfing
rights Court held in favour of the club- Re Singh Kalpanath Disciplinary Committee
ndash An application for the remedy of certiorari to quash the findings of a disciplinary committee on the basis of bias
Principles of natural justice- 1048612 Right to be heard by unbiased tribunal- 1048612 Right to have notice of charges of misconduct- 1048612 Right to be heard in answer to the charges
Examples- 1048612 Harun Mundir v SAAA Singapore Amateur Athletics Assoc- 1048612 Re Singh Kalpanath Disciplinary Committee- 1048612 A Kanesananthan v Singapore Ceylon Tamilsrsquo Association unincorporated
association- 1048612 Mohammed Aziz bin Ibrahim v PKMS political party- 1048612 Shorvon v SMC Singapore Medical Council- 1048612 Rehearing some precedence accorded to tribunal of first instance
ndash Ling Uk Choon v Public Accountants Board [2004] 3 SLR 517 Accountants Act ndash in isues of proff misconduct tribunal has best knowledge to deal with such issues
- 1048612 Where statute provides for appeal in relation to professional bodyrsquos findingsndash 1048612 Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151
Singapore Medical Councilndash this statute may itself prov for parties to apply to court when unhappy with
what SMC has decided
Ling Uk Choon and Another v Public Accountants Board [2004] 3 SLR 517- Facts- The appellants were certified public accountants Ryoma Steel Enterprise (S) Pte Ltd
(ldquoRyomardquo) their client complained to the Public Accountants Board (ldquothe Boardrdquo) that the appellantsrsquo had refused to return certain documents belongingto Ryoma An Inquiry Committee (ldquoICrdquo) was constituted which subsequently concluded that the appellants were guilty of improper conduct under s 34(1)(c) of the Accountants Act (Cap 2 2001 Rev Ed) (ldquothe Actrdquo) The IC also concluded that the appellants had refused to return the documents because they were under a mistaken belief that they were under a duty to disclose irregularities in those documents The Board accepted the findings of the IC censured both appellants and ordered each of them to pay to the Board a sum of $6281 being the costs and expenses incidental to the hearing held by the IC The appellants appealed against the decision of the Board to the High Court pursuant to s 36 of the Act
- Held allowing the appeal- Section 36 of the Act provided the appellants with a right of appeal to the High Court
The appeal against the decision of the Board to the High Court was by way of rehearing pursuant to O 55 rr 1 and 2 of the Rules of Court (Cap 322 R 5 2004 Rev Ed) Therefore the High Court was not confined to considering whether the rules of natural justice had been observed and whether the decision of the Board had been honestly reached at [27] [30] and [32]
- The courtrsquos role in the appeal- The Boardrsquos counsel Mr Devinder Rai initially argued that the courtrsquos role in the
appeal was limited to considering whether the rules of natural justice had been observed and whether the decision of the Board had been honestly reached A few cases were cited for this proposition However as the appellantsrsquo counsel Mr Quek Mong Hua rightly pointed out those cases involved applications seeking judicial review where there was no statutory right of appeal Here s 36 of the Act provides the appellants with a right to appeal to the High Court Order 55 r 1 of the Rules of Court (Cap 322 R 5 2004 Rev Ed) provides that the Order shall apply to every appeal which under any written law lies to the High Court from any court tribunal or person Order 55 r 2 provides that such an appeal ldquoshall be by way of rehearingrdquo
- Mr Quek relied on L P Thean Jrsquos judgment in Chew Kia Ngee v Singapore Society of Accountants [1988] SLR 999 where Thean J said at 1003 [8]
- Against that decision this appeal is now brought Under s 34(2) of the Act the procedure governing such an appeal is the same as that for appeals to the High Court from the decisions of District Courts in civil matters Like an appeal from the District Courts this appeal is in the nature of a re-hearing and the same principles apply as are applicable to an appeal to the High Court against the decision of the District Court
- Using the analogy of appeals from the district courts Mr Quek then further cited a passage from Singapore Civil Procedure 2003 (Sweet amp Maxwell Asia 2003) in respect of O 55D r 2 on the question of rehearing The passage cited was inaccurately set out in his further submissions and I set it out below
- 55D31 ldquoBy way of rehearingrdquo mdash This provision does not mean that the High Court hears the witnesses afresh The High Court reviews the whole of the evidence (so far as is relevant to the appeal) in the court below and the course of the trial The general practice is essentially a ldquorehearing on documentsrdquo in that the court sits to review the official transcript of the evidence the judgersquos notes and the grounds of his decision The court rehears counsel on the issues of fact or law or both which form the substance of the appeal The court is not confined to the issues raised by the parties on appeal and is not limited to making an order which should have been made by the court below but may consider any relevant facts which have occurred since the trial and may make such further or other orders as it deems fit according to the state of things at the time of the hearing of the appeal hellip
- It should be noted that the statute being considered in Chew Kia Ngee was the Accountants Act (Cap 2 1985 Rev Ed) and s 34(2) thereof states that the procedure governing appeals to the High Court ldquoshall be the same as for appeals to the High Court from decisions of District Courts in civil mattersrdquo On the other hand s 36(1) of the Act does not mention appeals from the district courts Accordingly one must be careful when citing Thean Jrsquos judgment on this point Fortunately the end result is the same because although s 36(1) of the Act does not mention appeals from the district courts O 55 rr 1 and 2 do provide that an appeal under any written law to the High Court shall be by way of rehearing as I have mentioned
- However one should also be careful about citing the above passage from the Singapore Civil Procedure 2003 in respect of O 55D r 2 because O 55D pertains to appeals from the subordinate courts and not appeals under any written law There is a separate order for the latter ie O 55 Order 55 r 5(3) states that ldquoExcept with the
leave of the Court hearing any such appeal no grounds other than those stated in the notice of motion hellip may be relied upon by the appellant helliprdquo So for the purpose of O 55 it would be inaccurate to say that the court is not confined to the issues raised by the parties on appeal
- Nevertheless I accept that because the appeal before me is by way of rehearing I am not confined to considering whether the rules of natural justice have been observed and whether the decision of the Board had been honestly reached
- Indeed in further submissions Mr Rai no longer submitted that the courtrsquos role in a statutory appeal was as limited as originally suggested He pointed out that in Fox v General Medical Council [1960] 1 WLR 1017 Lord Radcliffe said at 1022
- Their Lordships think therefore that it would be an undue limitation of their duty and powers in dealing with the statutory appeal to require no more for the upholding of a determination than observance of what are known as the rules of natural justice
- However Mr Rai submitted that the decision of the tribunal below should be given some measure of precedence For this proposition he cited the following from Lord Radcliffersquos judgment in Fox at 1020
- The appeal in this case lies as of right and by statute ndash see section 36 of the Medical Act 1956 The terms of the statute that confers the right do not limit or qualify the appeal in any way so that an appellant is entitled to claim that it is in a general sense nothing less than a re-hearing of his case and a review of the decision Nevertheless an appellate court works under certain limitations which are inherent in any appeal that does not take the form as this does not of starting the case all over again and hearing the witnesses afresh In the High Court where appeals to the Court of Appeal are by function by way of re-hearing there are well-recognised principles which give some measure of precedence to the decisions of the tribunal that has seen and heard the witnesses over what might otherwise be the view of the facts preferred by the appellate court which has only the record of the evidence to study
- I do not disagree that the decision below should be given some precedence provided that the courtrsquos wider role in an appeal is borne in mind
Mohammad Aziz bin Ibrahim v PKMS [2003] SGHC 28- The plaintiffs were members of the defendants a political party The defendants
wrote to the plaintiffs informing them of a decision of the defendantsrsquo Executive Council to terminate their membership The plaintiffs replied that they had not been given an opportunity to defend themselves The defendants did not reply and instead summoned the plaintiffs to appear in two days before the Disciplinary Committee to answer charges against them The plaintiffs protested the lack of time to prepare their defence and reiterated that they would not be able to attend the hearing given their prior commitments The defendantsrsquo Disciplinary Committee met in the plaintiffsrsquo absence and decided to terminate the membership of the plaintiffs The plaintiffs were then summoned to appear before the defendantsrsquo Supreme Council The plaintiffs protested that the summons contained no details as to the allegations against them The defendants did not respond and proceeded to meet in the plaintiffsrsquo absence They decided to expel the plaintiffs and informed the plaintiffs of their decision in
writing The plaintiffs applied to court to have their expulsion declared null and void and to obtain a declaration that they are still members of the defendants as there was a breach of the rules of natural justice
- Heldo (1) Before a member could be expelled from an association he must have
had notice of the charges of misconduct which justified the termination of his membership and must have been given an opportunity to be heard by an unbiased committee
o (2) As a general rule before a person goes before a Disciplinary Committee he must have been given sufficient time to effectively prepare his defence The plaintiffs were not given sufficient time to prepare their defence There was a breach of the rules of natural justice The defendantsrsquo Supreme Council should not have taken into account the recommendations of the Disciplinary Committee
o (3) A person must be given sufficient particulars of the charge against him The notice to appear before the defendantsrsquo Supreme Council did not contain sufficient particulars of the charges against the plaintiffs The defendantsrsquo Supreme Council breached the rules of natural justice when the plaintiffs were expelled in their absence
o (4) As a matter of construction the defendantsrsquo constitution did not require the plaintiffs to exhaust their internal remedies before instituting legal proceedings The plaintiffs would have had difficulties framing an appeal given that they did not have adequate notice of the charges against them The defendants had wrongly given them six days to appeal when the defendantsrsquo constitution did not restrict the right of appeal
o (5) As the expulsion of the plaintiffs was in breach of the rules of natural justice their expulsion was declared null and void
Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151- Facts- The appellant Dr Chia Yang Pong (ldquoDr Chiardquo) a medical doctor pleaded guilty to
80 charges of professional misconduct before a hearing of the Disciplinary Committee of the Singapore Medical Council (ldquoSMCrdquo) The Disciplinary Committee convicted him of all the charges under s 45(1)(d) of the Medical Registration Act (Cap 174 1998 Rev Ed) (ldquoMRArdquo) and ordered that his name be removed from the Register of Medical Practitioners and that he be fined $1000 per charge on 65 of the 80 charges amounting to a total fine of $65000 Dr Chia appealed against these orders contending that the sentence was manifestly excessive and that his name should not be removed from the Register of Medical Practitioners Dr Chia also asserted that if his name was to be removed from the Register of Medical Practitioners then the fine should not have been imposed on him as well Dr Chia further submitted that the fine of $65000 exceeded the limit permitted by s 45(2)(d) of the MRA which provides that the powers of a Disciplinary Committee include the imposition of a fine not exceeding $10000 Dr Chia submitted that the $10000 limit applied to the entire proceedings before a Disciplinary Committee regardless of the number of charges levelled against the medical practitioner The SMC contended that
where a medical practitioner faced multiple charges the Disciplinary Committee had the power to impose an unlimited fine so long as the Disciplinary Committee did not impose a fine of more than $1000 per charge
- Held allowing the appeal in part- The court would accept as final and conclusive the finding of a Disciplinary
Committee on any issue of medical ethics or standards of professional conduct unless it was unsafe unreasonable or contrary to evidence The Disciplinary Committeersquos findings that Dr Chia was guilty of professional misconduct could not be said to be unsafe unreasonable or contrary to evidence Neither was the court able to say that Dr Chiarsquos professional misconduct did not warrant the removal of his name from the Register of Medical Practitioners at [7] to [9]
- - comment it depends on what the relevant statute provides for Judicial rview is confined to reviewing whether the relevant auth have exceeded their auth under the sttute
Tan Eng Chye v The Director of Prisons [2004] 2 SLR 640- Facts- The applicant pleaded guilty to a charge of robbery under s 392 of the Penal Code
(Cap 224 1985 Rev Ed) (ldquoPCrdquo) The punishment included caning The trial judge was concerned whether caning should be ordered as he had been informed that the applicant suffered from Marfan Syndrome a congenital condition affecting the heart eyes and other parts of the body The district judge postponed sentencing and asked for a medical report to be produced The medical report submitted merely stated that the applicant was fit for caning There was no indication that the doctor had even addressed his mind to the applicantrsquos condition or referred to the applicantrsquos previous medical records The district judge sentenced the applicant to imprisonment for four years and six months and 12 strokes of the cane The present application for leave to apply for an order of certiorari was brought on the basis that the medical assessment conducted was not sufficiently thorough
- The respondent objected to the application on the grounds that- the application was premature because the applicant would be examined again on the
day scheduled for caning- the application could have no useful outcome- the application was improper and that- there were no grounds to justify a review- Held granting the application- The application was not premature as it would be too late to seek redress when the
plaintiff was examined on the date of caning at [21] to [22]- The application could have a useful outcome from a ruling on the proper form of
medical examination and assessment to be done at [25]- There was no procedural deficiency in the application and no failure of disclosure by
the applicant at [28] and [32]- The proper medical assessment to be made under s 232(1) CPC was a matter suitable
for judicial review at [38] and [49]- Review and conclusion
- Under the law an offender is to be caned for the offence he committed But the law is not without compassion and it provides that before anyone is caned he is to undergo medical examination to ensure that he will not suffer serious unintended injuries Only those found to be fit to undergo caning will be caned For those who are found not suitable the sentence of caning is not to be carried out
- The applicant has been sentenced to be caned He has a medical condition Caning may have serious effects on him The district judge who convicted him was concerned and called for a medical report One was produced to him but it was clearly unsatisfactory There is no indication that the medical officer had called for or considered the applicantrsquos medical records There is no indication that the medical officer made an assessment of the severity of the applicantrsquos condition Indeed there is no indication whether any thought has been given to the effects that caning can have on the applicant who has Marfan Syndrome
- The applicant wants his condition to be given proper consideration He produced medical reports of the effects that caning may have on him to show that there is substance in his concern
- The respondentrsquos response is that the applicant does not have any recourse because there is to be another examination done before caning is administered but it gives no assurance that the examination will be more thorough than the one done on 16 October 2003
- In these circumstances there is a clear issue to be determined ndash whether the protection offered in s 232 of the Criminal Procedure Code is satisfied by that type of minimal certification or whether it requires more to be done
- The respondent says that the applicant should be shut out and not allowed to proceed further on the ground that it is a groundless or hopeless case or a misguided or trivial complaint and a waste of the courtrsquos time
- In Lai Swee Lin Lindarsquos case the Court of Appeal adopted Lord Diplockrsquos statement in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409 that
- For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself ie that part of the common law that is given by lawyers the label of ldquothe prerogativerdquo
- By this test the medical assessment to be made in compliance with s 232(1) of the Criminal Procedure Code to ensure that an offender is sufficiently fit to be caned is susceptible to judicial review The application is not groundless hopeless misguided trivial or a waste of time
- I therefore gave the applicant leave to proceed The respondent still maintains that he should not be allowed to proceed and has appealed against my order
Tan Eng Chye v The Director of Prisons (No 2) [2004] 4 SLR 521 - Held dismissing the application- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law to make decisions that would lead to administrative action by an authority endowed with executive powers which would have consequences affecting some person In the instant case Dr Ooirsquos decision was not amenable to judicial review as the district court judge was duty bound to impose the sentence of caning irrespective of Dr Ooirsquos report The remedy in the event of any dissatisfaction with the district court judgersquos order lay in the appeal process at [7] and [8]
- Since this was not a judicial review case at all it would be a pointless and unwarranted exercise to ask whether Dr Ooi had acted reasonably in the Wednesbury sense Tan could not be allowed to attack Dr Ooirsquos report Otherwise any party who was unhappy with a trial judgersquos decision but who had no valid grounds of appeal would be tempted to attack the evidence of witnesses such as the psychiatric expert or prison doctor at [10] and [11]
- Against the background of these statutory provisions it is apparent that the applicantrsquos case that Dr Ooi Poh Hinrsquos certification ought to be quashed because he did not take into account matters in the Wednesbury sense (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) was misconceived The making of this application indicated that the applicant had laboured under the mistaken belief that every act or conduct of a public servant is justiciable by way of a judicial review In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Diplock held at 408 that
- The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ldquodecision-makerrdquo or else a refusal by him to make a decision
- To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker although it may affect him too It must affect such other person either
- by altering rights or obligations of that person which are enforceable by or against him in private law or
- by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do so until there has been communicated to him some rational grounds for withdrawing it on which he had been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn hellip
- Lord Diplock further amplified what he said above by holding that- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph
- The report by Dr Ooi was obviously a ldquodecisionrdquo but that alone did not make Dr Ooi a ldquodecision makerrdquo in the sense explained in the Lord Diplock judgment above The district court judge as I had said was duty bound to impose the sentence of caning irrespective of what Dr Ooi might have said in his report Dr Ooi was a public servant discharging what I might call a ldquonon-decision makingrdquo duty in the Diplock sense Further examples of non-decision making conduct include acts of police officers such as in the arrest of a person suspected of committing an offence Such decisions of an arresting officer are not amenable to judicial review The rights of the arrested person lie in the criminal as well as civil law ndash not in an administrative action A public officer performing such duties cannot be made accountable by way of judicial review because the law would have provided avenues for redress in the case of any error or wrongdoing on the part of the public officer Sometimes the redress might not be adequate or obtained in time but that does not detract from the schematic structure of the complainantrsquos legal remedies An arrested person might be freed or charged If he is charged he may defend himself at trial If he is found guilty he has his right of appeal The arresting officer cannot be made to account for his action as to whether he had exercised Wednesbury reasonableness in deciding to arrest a suspect Every public officer will have made numerous decisions on a daily basis They cannot all be accountable for each and every one of those decisions in an administrative action even if they affect another person or body of persons otherwise the entire apparatus of public service might cease to function Similarly a medical officer performing his duty in determining whether a prisoner is fit for caning is not a ldquodecision makerrdquo in the Diplock sense The substantive administrative action would have been the decision of the judge who ordered the caning The remedy in the case of any dissatisfaction with that order lies in the appeal process In the case of the medical officer reporting under a s 232 (1) situation the substantive administrative action or the Diplock ldquodecision makingrdquo function lies with the prison authority which may stop the caning If it does not exercise that function the remedy lies in an action against the prison authority for failing to discharge its statutory duty For these reasons the applicant had no merit in applying for leave to issue an application for an order of certiorari Accordingly this application before me must be dismissed
When may decisions not be reviewed- Cannot just file for JR must look to nature of decision
ndash Contractualndash Or sth tt SHLD be judicially reviewedndash Eg contract with PWD merely matter of contract
- 1048612 Look to the source of the power that is being challenged- 1048612 Instances where judicial review will NOT lie
ndash Person carrying out only a private duty Re Fong Thin Choondash Re Fong Thin Choo [1992] 1 SLR 120
- This was a case involving an application for an order of prohibition against the Director-General of Customs and Excise
- Held
- (1) DG was carrying out Public Duty - (2) S 27 GPA did not prevent a court from granting an order of
prohibition against public acts [State Counsel had argued that no prohibition was possible since it would be tantamount to granting an injunction against the govt which is prevented by s 27 GPA ndash argument rejected]
- (3) Scope of Review -- whether the DG in reaching his decision had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the statute he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider On the facts the DG had failed to consider the Applicantrsquos evidence Order of Prohibition granted [ie Wednesbury Unreasonableness]
- Even if it is a public authority may still be an issue of private and not public law such as contract
- If the applicant asserts rights which lie in private law rather than public law judicial review is not available
ndash Chan Mun Poy v DG of Telecommunications [installation of telephone line]
- Court held tt merely matter of contract - case involving installation of telephone line the applicant sought
an order of mandamus against the respondent to reinstall a telephone line Held that the rights and liabilities in this case arose out of the contract between the applicant and respondent and dismissed the application
ndash Exp Lavelle [employment at BBC]- BBC owned by state in past query was contract of emplyt ndash
cannot be judicially reviewed- ndash a case concerning employment at the BBC - Held that it concerned a contractual matter even though the BBC
was a public bodyndash Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
[employment by PSC]- CA held that this was a contractual relationship between PSC and
Linda Lai This was a case on employment by the PSC The Court rejected the arguments raised to bring it into ldquopublic lawrdquo arena (ie PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation)
- Linda loy in employ of PSC public servant instruction manual governing behaviour and discipline of public offiers throughout public service
- She argd tt this was matter for public law and tt JR shld be possible
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
- High Court held grant of interim declaration preventing PWD from calling upon a letter of guarantee by arbitrator to be incorrect Interim declarations could not exist in law as final legal rights were not being declared It does not make logical sense to have interim declaration
- Court held that no interim declaration to be granted in order to get around the interim injunction prohibition High Court held grant of interim declaration preventing PWD from calling upon a letter of guarantee by arbitrator to be incorrect Interim declarations could not exist in law as final legal rights were not being declared
ndash Koh Ah Kow v PP [1995] 2 SLR 342- NO order of Specific Performance can be issued against the Govt
in civil proceedings in which it is a party [s 27(1)(a) GPA] - Equityrsquos maxim of lsquoequity looks on that as done which ought to be
donersquo not applicable here as it could not be exercised against a third party ndash ie the govt
- Case involved the eviction of a tenant from state land granted to the Japanese Association Specifically there was an agreement to lease bet the govt and the JA The applicant was served with a notice to quit possession [being a former tenant to the former occupiers of the land the land having being acquired by the govt subsequently] Applicant argued that the land was not lsquostatersquo land by virtue of the agreement to lease and that the govt had no power to evict him
- Discovery s34(1) GPA and O73 r 10 No disclosure of existence of document if existence of document is in opinion of Minister injurious to public interest
ndash Discovery only under order of court- Order 73 rule 11 Powers of the court to take evidence from subjects are equally
exercisable in proceedings by or against the Govt- Enforcement Orders 45 to 52 do not apply O 73 r 12(1)- No execution or attachment for enforcing payments by the government Order 73 rule
131- No garnishee order against government but court may make order restraining the
payee from receiving money and directing payment to be made on the judgment creditor receiver Order 73 rule 132
- No proceedings in rem against govt s35 GPA
3 Parties s19 GPA- 1048612 Civil proceedings by the government may be commenced by the authorised
government department or by AGndash In practice usu the AG does so
- 1048612 Civil proceedings against the government shall be commenced against the appropriate government department or against the AG s 19 (see Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR 582)
ndash But none of departments gazetted so shld just commence against AG
ndash O15 ndash can use AG to subtitutendash But case struck out because no merits anyway
- 1048612 Where instituted against the department department may apply to substitute AG or vice versa
- 1048633 Change in person holding office as AG or in persons constituting the department does not abate the action s 19(5) GPA
Representation s24 GPA- 1048612 A legal officer may appear as advocate on behalf of government s 24(1) GPA- 1048612 A legal officer may appear as advocate on behalf of a public officer who is a party
by virtue of office or in personal capacity if the AG certifies representation to be in the public interest s 24(2) GPA
- 1048612 AG may retain advocate and solicitor to act s 24(3) GPAndash Eg big cases can retain senior counsel
Service Order 73 rule 3- 1048612 Service on solicitor or person acting as solicitor for department if no solicitor or
AG is a party serve on the AG- 1048612 Order 73 r 3 personal service not required- Can leave document or send by prepaid post to person to be served under the GPA or
any agent nominated for service
JUDICIAL REVIEW
Jurisdiction High Court- Cannot be brought in sub courts ndash only the HC has juris
ndash 1048612 Section 18(2) read with para 1 First Schedule Supreme Court of Judicature Act
- Powers to grant orders of mandamus prohibition and certiorari for the enforcement of rights
Mandamus ndash a command by the High Court Judge requiring a inferior tribunal company or person requiring him or them to do some particular thing which pertains to his or their office and is in the nature of a public duty
Prohibition ndash it operates as a preventive measure Its effect is to restrain an inferior court tribunal or public authority from exceeding its jurisdiction or from conducting or continuing proceedings in contravention of the law
Certiorari ndash to bring proceedings of an inferior tribunal before the High Court for review so that the court can determine whether to quash such proceedings The order will issue to quash a determination for excess or lack of jurisdiction error of law or breach of rules of nature justice
- 1048612 Cf lsquoprivate law remediesrsquo declaration injunction damages
- The process of judicial review can be defined as that by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior
courts tribunals and other bodies or persons who carry out quasi-functions or who charged with the performance of public acts and duties
- Colin Chan v PP [1994] 3 SLR 642ndash On the scope of the Courtrsquos power under s 18(2) SCJA ndash Effect ldquoIt is one thing to say that the court has a specific power to review but
another to infer that the court can exercise that power in every proceeding brought before itrdquo
ndash (1) A courtrsquos powers when sitting as an appellate court are necessarily limited to that of the subordinate court from which the appeal emanated
ndash (2) A criminal court has jurisdiction to consider a defence alleging that a subsidiary legislation is substantially invalid but cannot consider whether it is procedurally invalid Subsidiary legislation can therefore only be challenged if it is ultra vires its enabling Act or is invalid on the face of it
ndash (3) It is clearly not proper to raise ultra vires issues which extend beyond substantive validity in the sense of being clearly wrong on the face of it in subordinate court proceedings Nevertheless the court had to still take into account the fact that both parties were ad idem with each other as to the courtrsquos competence in determining all the issues raised This was therefore an appropriate case for the application of Lord Diplockrsquos second exception in OrsquoReilly v Mackman The facts of this case being undoubtedly exceptional in the interests of justice and in consideration
- Chin Hong Onn Ronny v Tanah Merah Country Club [2001] SGHC 101ndash can just file OS under ord civil proced ndash for such action can bring either in sub court or high court Jurisdiction
Subordinate Courts and High Courtndash in above case ronie chin a member of golfing club and while palying on
green ball ran out captain of bluc issued suspension order on Ronnie chin for 3 mths he filed OS one prelim pt raised by them was that need to go for judicial review
ndash court held tt many precedents wher such parties have used normal OS proced and court dimised the prelim objection of tanah merah country club
Whose decisions may be reviewed- 1048612 Judicial functions quasi-judicial functions exercise of lsquoprerogative powersrsquo See
Ridge v Baldwin [1964] AC 40- 1048612 Clubs domestic tribunals ndash jurisdiction different Role of court to ensure fairness of
proceedings not to assess evidence and result Court should see that natural justice applied
ndash Note ndash must be inferior tribunal cf court military appeal ndash is not an INFERIOR tribunal must follow appeal proced on tt Cannot be judicially reviewed
- Chin Hong Onn Ronny v Tanah Merah Country Club (unrepted HC)ndash The litigant sought judicial review of the Clubrsquos decision on his golfing
rights Court held in favour of the club- Re Singh Kalpanath Disciplinary Committee
ndash An application for the remedy of certiorari to quash the findings of a disciplinary committee on the basis of bias
Principles of natural justice- 1048612 Right to be heard by unbiased tribunal- 1048612 Right to have notice of charges of misconduct- 1048612 Right to be heard in answer to the charges
Examples- 1048612 Harun Mundir v SAAA Singapore Amateur Athletics Assoc- 1048612 Re Singh Kalpanath Disciplinary Committee- 1048612 A Kanesananthan v Singapore Ceylon Tamilsrsquo Association unincorporated
association- 1048612 Mohammed Aziz bin Ibrahim v PKMS political party- 1048612 Shorvon v SMC Singapore Medical Council- 1048612 Rehearing some precedence accorded to tribunal of first instance
ndash Ling Uk Choon v Public Accountants Board [2004] 3 SLR 517 Accountants Act ndash in isues of proff misconduct tribunal has best knowledge to deal with such issues
- 1048612 Where statute provides for appeal in relation to professional bodyrsquos findingsndash 1048612 Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151
Singapore Medical Councilndash this statute may itself prov for parties to apply to court when unhappy with
what SMC has decided
Ling Uk Choon and Another v Public Accountants Board [2004] 3 SLR 517- Facts- The appellants were certified public accountants Ryoma Steel Enterprise (S) Pte Ltd
(ldquoRyomardquo) their client complained to the Public Accountants Board (ldquothe Boardrdquo) that the appellantsrsquo had refused to return certain documents belongingto Ryoma An Inquiry Committee (ldquoICrdquo) was constituted which subsequently concluded that the appellants were guilty of improper conduct under s 34(1)(c) of the Accountants Act (Cap 2 2001 Rev Ed) (ldquothe Actrdquo) The IC also concluded that the appellants had refused to return the documents because they were under a mistaken belief that they were under a duty to disclose irregularities in those documents The Board accepted the findings of the IC censured both appellants and ordered each of them to pay to the Board a sum of $6281 being the costs and expenses incidental to the hearing held by the IC The appellants appealed against the decision of the Board to the High Court pursuant to s 36 of the Act
- Held allowing the appeal- Section 36 of the Act provided the appellants with a right of appeal to the High Court
The appeal against the decision of the Board to the High Court was by way of rehearing pursuant to O 55 rr 1 and 2 of the Rules of Court (Cap 322 R 5 2004 Rev Ed) Therefore the High Court was not confined to considering whether the rules of natural justice had been observed and whether the decision of the Board had been honestly reached at [27] [30] and [32]
- The courtrsquos role in the appeal- The Boardrsquos counsel Mr Devinder Rai initially argued that the courtrsquos role in the
appeal was limited to considering whether the rules of natural justice had been observed and whether the decision of the Board had been honestly reached A few cases were cited for this proposition However as the appellantsrsquo counsel Mr Quek Mong Hua rightly pointed out those cases involved applications seeking judicial review where there was no statutory right of appeal Here s 36 of the Act provides the appellants with a right to appeal to the High Court Order 55 r 1 of the Rules of Court (Cap 322 R 5 2004 Rev Ed) provides that the Order shall apply to every appeal which under any written law lies to the High Court from any court tribunal or person Order 55 r 2 provides that such an appeal ldquoshall be by way of rehearingrdquo
- Mr Quek relied on L P Thean Jrsquos judgment in Chew Kia Ngee v Singapore Society of Accountants [1988] SLR 999 where Thean J said at 1003 [8]
- Against that decision this appeal is now brought Under s 34(2) of the Act the procedure governing such an appeal is the same as that for appeals to the High Court from the decisions of District Courts in civil matters Like an appeal from the District Courts this appeal is in the nature of a re-hearing and the same principles apply as are applicable to an appeal to the High Court against the decision of the District Court
- Using the analogy of appeals from the district courts Mr Quek then further cited a passage from Singapore Civil Procedure 2003 (Sweet amp Maxwell Asia 2003) in respect of O 55D r 2 on the question of rehearing The passage cited was inaccurately set out in his further submissions and I set it out below
- 55D31 ldquoBy way of rehearingrdquo mdash This provision does not mean that the High Court hears the witnesses afresh The High Court reviews the whole of the evidence (so far as is relevant to the appeal) in the court below and the course of the trial The general practice is essentially a ldquorehearing on documentsrdquo in that the court sits to review the official transcript of the evidence the judgersquos notes and the grounds of his decision The court rehears counsel on the issues of fact or law or both which form the substance of the appeal The court is not confined to the issues raised by the parties on appeal and is not limited to making an order which should have been made by the court below but may consider any relevant facts which have occurred since the trial and may make such further or other orders as it deems fit according to the state of things at the time of the hearing of the appeal hellip
- It should be noted that the statute being considered in Chew Kia Ngee was the Accountants Act (Cap 2 1985 Rev Ed) and s 34(2) thereof states that the procedure governing appeals to the High Court ldquoshall be the same as for appeals to the High Court from decisions of District Courts in civil mattersrdquo On the other hand s 36(1) of the Act does not mention appeals from the district courts Accordingly one must be careful when citing Thean Jrsquos judgment on this point Fortunately the end result is the same because although s 36(1) of the Act does not mention appeals from the district courts O 55 rr 1 and 2 do provide that an appeal under any written law to the High Court shall be by way of rehearing as I have mentioned
- However one should also be careful about citing the above passage from the Singapore Civil Procedure 2003 in respect of O 55D r 2 because O 55D pertains to appeals from the subordinate courts and not appeals under any written law There is a separate order for the latter ie O 55 Order 55 r 5(3) states that ldquoExcept with the
leave of the Court hearing any such appeal no grounds other than those stated in the notice of motion hellip may be relied upon by the appellant helliprdquo So for the purpose of O 55 it would be inaccurate to say that the court is not confined to the issues raised by the parties on appeal
- Nevertheless I accept that because the appeal before me is by way of rehearing I am not confined to considering whether the rules of natural justice have been observed and whether the decision of the Board had been honestly reached
- Indeed in further submissions Mr Rai no longer submitted that the courtrsquos role in a statutory appeal was as limited as originally suggested He pointed out that in Fox v General Medical Council [1960] 1 WLR 1017 Lord Radcliffe said at 1022
- Their Lordships think therefore that it would be an undue limitation of their duty and powers in dealing with the statutory appeal to require no more for the upholding of a determination than observance of what are known as the rules of natural justice
- However Mr Rai submitted that the decision of the tribunal below should be given some measure of precedence For this proposition he cited the following from Lord Radcliffersquos judgment in Fox at 1020
- The appeal in this case lies as of right and by statute ndash see section 36 of the Medical Act 1956 The terms of the statute that confers the right do not limit or qualify the appeal in any way so that an appellant is entitled to claim that it is in a general sense nothing less than a re-hearing of his case and a review of the decision Nevertheless an appellate court works under certain limitations which are inherent in any appeal that does not take the form as this does not of starting the case all over again and hearing the witnesses afresh In the High Court where appeals to the Court of Appeal are by function by way of re-hearing there are well-recognised principles which give some measure of precedence to the decisions of the tribunal that has seen and heard the witnesses over what might otherwise be the view of the facts preferred by the appellate court which has only the record of the evidence to study
- I do not disagree that the decision below should be given some precedence provided that the courtrsquos wider role in an appeal is borne in mind
Mohammad Aziz bin Ibrahim v PKMS [2003] SGHC 28- The plaintiffs were members of the defendants a political party The defendants
wrote to the plaintiffs informing them of a decision of the defendantsrsquo Executive Council to terminate their membership The plaintiffs replied that they had not been given an opportunity to defend themselves The defendants did not reply and instead summoned the plaintiffs to appear in two days before the Disciplinary Committee to answer charges against them The plaintiffs protested the lack of time to prepare their defence and reiterated that they would not be able to attend the hearing given their prior commitments The defendantsrsquo Disciplinary Committee met in the plaintiffsrsquo absence and decided to terminate the membership of the plaintiffs The plaintiffs were then summoned to appear before the defendantsrsquo Supreme Council The plaintiffs protested that the summons contained no details as to the allegations against them The defendants did not respond and proceeded to meet in the plaintiffsrsquo absence They decided to expel the plaintiffs and informed the plaintiffs of their decision in
writing The plaintiffs applied to court to have their expulsion declared null and void and to obtain a declaration that they are still members of the defendants as there was a breach of the rules of natural justice
- Heldo (1) Before a member could be expelled from an association he must have
had notice of the charges of misconduct which justified the termination of his membership and must have been given an opportunity to be heard by an unbiased committee
o (2) As a general rule before a person goes before a Disciplinary Committee he must have been given sufficient time to effectively prepare his defence The plaintiffs were not given sufficient time to prepare their defence There was a breach of the rules of natural justice The defendantsrsquo Supreme Council should not have taken into account the recommendations of the Disciplinary Committee
o (3) A person must be given sufficient particulars of the charge against him The notice to appear before the defendantsrsquo Supreme Council did not contain sufficient particulars of the charges against the plaintiffs The defendantsrsquo Supreme Council breached the rules of natural justice when the plaintiffs were expelled in their absence
o (4) As a matter of construction the defendantsrsquo constitution did not require the plaintiffs to exhaust their internal remedies before instituting legal proceedings The plaintiffs would have had difficulties framing an appeal given that they did not have adequate notice of the charges against them The defendants had wrongly given them six days to appeal when the defendantsrsquo constitution did not restrict the right of appeal
o (5) As the expulsion of the plaintiffs was in breach of the rules of natural justice their expulsion was declared null and void
Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151- Facts- The appellant Dr Chia Yang Pong (ldquoDr Chiardquo) a medical doctor pleaded guilty to
80 charges of professional misconduct before a hearing of the Disciplinary Committee of the Singapore Medical Council (ldquoSMCrdquo) The Disciplinary Committee convicted him of all the charges under s 45(1)(d) of the Medical Registration Act (Cap 174 1998 Rev Ed) (ldquoMRArdquo) and ordered that his name be removed from the Register of Medical Practitioners and that he be fined $1000 per charge on 65 of the 80 charges amounting to a total fine of $65000 Dr Chia appealed against these orders contending that the sentence was manifestly excessive and that his name should not be removed from the Register of Medical Practitioners Dr Chia also asserted that if his name was to be removed from the Register of Medical Practitioners then the fine should not have been imposed on him as well Dr Chia further submitted that the fine of $65000 exceeded the limit permitted by s 45(2)(d) of the MRA which provides that the powers of a Disciplinary Committee include the imposition of a fine not exceeding $10000 Dr Chia submitted that the $10000 limit applied to the entire proceedings before a Disciplinary Committee regardless of the number of charges levelled against the medical practitioner The SMC contended that
where a medical practitioner faced multiple charges the Disciplinary Committee had the power to impose an unlimited fine so long as the Disciplinary Committee did not impose a fine of more than $1000 per charge
- Held allowing the appeal in part- The court would accept as final and conclusive the finding of a Disciplinary
Committee on any issue of medical ethics or standards of professional conduct unless it was unsafe unreasonable or contrary to evidence The Disciplinary Committeersquos findings that Dr Chia was guilty of professional misconduct could not be said to be unsafe unreasonable or contrary to evidence Neither was the court able to say that Dr Chiarsquos professional misconduct did not warrant the removal of his name from the Register of Medical Practitioners at [7] to [9]
- - comment it depends on what the relevant statute provides for Judicial rview is confined to reviewing whether the relevant auth have exceeded their auth under the sttute
Tan Eng Chye v The Director of Prisons [2004] 2 SLR 640- Facts- The applicant pleaded guilty to a charge of robbery under s 392 of the Penal Code
(Cap 224 1985 Rev Ed) (ldquoPCrdquo) The punishment included caning The trial judge was concerned whether caning should be ordered as he had been informed that the applicant suffered from Marfan Syndrome a congenital condition affecting the heart eyes and other parts of the body The district judge postponed sentencing and asked for a medical report to be produced The medical report submitted merely stated that the applicant was fit for caning There was no indication that the doctor had even addressed his mind to the applicantrsquos condition or referred to the applicantrsquos previous medical records The district judge sentenced the applicant to imprisonment for four years and six months and 12 strokes of the cane The present application for leave to apply for an order of certiorari was brought on the basis that the medical assessment conducted was not sufficiently thorough
- The respondent objected to the application on the grounds that- the application was premature because the applicant would be examined again on the
day scheduled for caning- the application could have no useful outcome- the application was improper and that- there were no grounds to justify a review- Held granting the application- The application was not premature as it would be too late to seek redress when the
plaintiff was examined on the date of caning at [21] to [22]- The application could have a useful outcome from a ruling on the proper form of
medical examination and assessment to be done at [25]- There was no procedural deficiency in the application and no failure of disclosure by
the applicant at [28] and [32]- The proper medical assessment to be made under s 232(1) CPC was a matter suitable
for judicial review at [38] and [49]- Review and conclusion
- Under the law an offender is to be caned for the offence he committed But the law is not without compassion and it provides that before anyone is caned he is to undergo medical examination to ensure that he will not suffer serious unintended injuries Only those found to be fit to undergo caning will be caned For those who are found not suitable the sentence of caning is not to be carried out
- The applicant has been sentenced to be caned He has a medical condition Caning may have serious effects on him The district judge who convicted him was concerned and called for a medical report One was produced to him but it was clearly unsatisfactory There is no indication that the medical officer had called for or considered the applicantrsquos medical records There is no indication that the medical officer made an assessment of the severity of the applicantrsquos condition Indeed there is no indication whether any thought has been given to the effects that caning can have on the applicant who has Marfan Syndrome
- The applicant wants his condition to be given proper consideration He produced medical reports of the effects that caning may have on him to show that there is substance in his concern
- The respondentrsquos response is that the applicant does not have any recourse because there is to be another examination done before caning is administered but it gives no assurance that the examination will be more thorough than the one done on 16 October 2003
- In these circumstances there is a clear issue to be determined ndash whether the protection offered in s 232 of the Criminal Procedure Code is satisfied by that type of minimal certification or whether it requires more to be done
- The respondent says that the applicant should be shut out and not allowed to proceed further on the ground that it is a groundless or hopeless case or a misguided or trivial complaint and a waste of the courtrsquos time
- In Lai Swee Lin Lindarsquos case the Court of Appeal adopted Lord Diplockrsquos statement in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409 that
- For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself ie that part of the common law that is given by lawyers the label of ldquothe prerogativerdquo
- By this test the medical assessment to be made in compliance with s 232(1) of the Criminal Procedure Code to ensure that an offender is sufficiently fit to be caned is susceptible to judicial review The application is not groundless hopeless misguided trivial or a waste of time
- I therefore gave the applicant leave to proceed The respondent still maintains that he should not be allowed to proceed and has appealed against my order
Tan Eng Chye v The Director of Prisons (No 2) [2004] 4 SLR 521 - Held dismissing the application- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law to make decisions that would lead to administrative action by an authority endowed with executive powers which would have consequences affecting some person In the instant case Dr Ooirsquos decision was not amenable to judicial review as the district court judge was duty bound to impose the sentence of caning irrespective of Dr Ooirsquos report The remedy in the event of any dissatisfaction with the district court judgersquos order lay in the appeal process at [7] and [8]
- Since this was not a judicial review case at all it would be a pointless and unwarranted exercise to ask whether Dr Ooi had acted reasonably in the Wednesbury sense Tan could not be allowed to attack Dr Ooirsquos report Otherwise any party who was unhappy with a trial judgersquos decision but who had no valid grounds of appeal would be tempted to attack the evidence of witnesses such as the psychiatric expert or prison doctor at [10] and [11]
- Against the background of these statutory provisions it is apparent that the applicantrsquos case that Dr Ooi Poh Hinrsquos certification ought to be quashed because he did not take into account matters in the Wednesbury sense (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) was misconceived The making of this application indicated that the applicant had laboured under the mistaken belief that every act or conduct of a public servant is justiciable by way of a judicial review In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Diplock held at 408 that
- The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ldquodecision-makerrdquo or else a refusal by him to make a decision
- To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker although it may affect him too It must affect such other person either
- by altering rights or obligations of that person which are enforceable by or against him in private law or
- by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do so until there has been communicated to him some rational grounds for withdrawing it on which he had been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn hellip
- Lord Diplock further amplified what he said above by holding that- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph
- The report by Dr Ooi was obviously a ldquodecisionrdquo but that alone did not make Dr Ooi a ldquodecision makerrdquo in the sense explained in the Lord Diplock judgment above The district court judge as I had said was duty bound to impose the sentence of caning irrespective of what Dr Ooi might have said in his report Dr Ooi was a public servant discharging what I might call a ldquonon-decision makingrdquo duty in the Diplock sense Further examples of non-decision making conduct include acts of police officers such as in the arrest of a person suspected of committing an offence Such decisions of an arresting officer are not amenable to judicial review The rights of the arrested person lie in the criminal as well as civil law ndash not in an administrative action A public officer performing such duties cannot be made accountable by way of judicial review because the law would have provided avenues for redress in the case of any error or wrongdoing on the part of the public officer Sometimes the redress might not be adequate or obtained in time but that does not detract from the schematic structure of the complainantrsquos legal remedies An arrested person might be freed or charged If he is charged he may defend himself at trial If he is found guilty he has his right of appeal The arresting officer cannot be made to account for his action as to whether he had exercised Wednesbury reasonableness in deciding to arrest a suspect Every public officer will have made numerous decisions on a daily basis They cannot all be accountable for each and every one of those decisions in an administrative action even if they affect another person or body of persons otherwise the entire apparatus of public service might cease to function Similarly a medical officer performing his duty in determining whether a prisoner is fit for caning is not a ldquodecision makerrdquo in the Diplock sense The substantive administrative action would have been the decision of the judge who ordered the caning The remedy in the case of any dissatisfaction with that order lies in the appeal process In the case of the medical officer reporting under a s 232 (1) situation the substantive administrative action or the Diplock ldquodecision makingrdquo function lies with the prison authority which may stop the caning If it does not exercise that function the remedy lies in an action against the prison authority for failing to discharge its statutory duty For these reasons the applicant had no merit in applying for leave to issue an application for an order of certiorari Accordingly this application before me must be dismissed
When may decisions not be reviewed- Cannot just file for JR must look to nature of decision
ndash Contractualndash Or sth tt SHLD be judicially reviewedndash Eg contract with PWD merely matter of contract
- 1048612 Look to the source of the power that is being challenged- 1048612 Instances where judicial review will NOT lie
ndash Person carrying out only a private duty Re Fong Thin Choondash Re Fong Thin Choo [1992] 1 SLR 120
- This was a case involving an application for an order of prohibition against the Director-General of Customs and Excise
- Held
- (1) DG was carrying out Public Duty - (2) S 27 GPA did not prevent a court from granting an order of
prohibition against public acts [State Counsel had argued that no prohibition was possible since it would be tantamount to granting an injunction against the govt which is prevented by s 27 GPA ndash argument rejected]
- (3) Scope of Review -- whether the DG in reaching his decision had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the statute he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider On the facts the DG had failed to consider the Applicantrsquos evidence Order of Prohibition granted [ie Wednesbury Unreasonableness]
- Even if it is a public authority may still be an issue of private and not public law such as contract
- If the applicant asserts rights which lie in private law rather than public law judicial review is not available
ndash Chan Mun Poy v DG of Telecommunications [installation of telephone line]
- Court held tt merely matter of contract - case involving installation of telephone line the applicant sought
an order of mandamus against the respondent to reinstall a telephone line Held that the rights and liabilities in this case arose out of the contract between the applicant and respondent and dismissed the application
ndash Exp Lavelle [employment at BBC]- BBC owned by state in past query was contract of emplyt ndash
cannot be judicially reviewed- ndash a case concerning employment at the BBC - Held that it concerned a contractual matter even though the BBC
was a public bodyndash Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
[employment by PSC]- CA held that this was a contractual relationship between PSC and
Linda Lai This was a case on employment by the PSC The Court rejected the arguments raised to bring it into ldquopublic lawrdquo arena (ie PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation)
- Linda loy in employ of PSC public servant instruction manual governing behaviour and discipline of public offiers throughout public service
- She argd tt this was matter for public law and tt JR shld be possible
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
ndash O15 ndash can use AG to subtitutendash But case struck out because no merits anyway
- 1048612 Where instituted against the department department may apply to substitute AG or vice versa
- 1048633 Change in person holding office as AG or in persons constituting the department does not abate the action s 19(5) GPA
Representation s24 GPA- 1048612 A legal officer may appear as advocate on behalf of government s 24(1) GPA- 1048612 A legal officer may appear as advocate on behalf of a public officer who is a party
by virtue of office or in personal capacity if the AG certifies representation to be in the public interest s 24(2) GPA
- 1048612 AG may retain advocate and solicitor to act s 24(3) GPAndash Eg big cases can retain senior counsel
Service Order 73 rule 3- 1048612 Service on solicitor or person acting as solicitor for department if no solicitor or
AG is a party serve on the AG- 1048612 Order 73 r 3 personal service not required- Can leave document or send by prepaid post to person to be served under the GPA or
any agent nominated for service
JUDICIAL REVIEW
Jurisdiction High Court- Cannot be brought in sub courts ndash only the HC has juris
ndash 1048612 Section 18(2) read with para 1 First Schedule Supreme Court of Judicature Act
- Powers to grant orders of mandamus prohibition and certiorari for the enforcement of rights
Mandamus ndash a command by the High Court Judge requiring a inferior tribunal company or person requiring him or them to do some particular thing which pertains to his or their office and is in the nature of a public duty
Prohibition ndash it operates as a preventive measure Its effect is to restrain an inferior court tribunal or public authority from exceeding its jurisdiction or from conducting or continuing proceedings in contravention of the law
Certiorari ndash to bring proceedings of an inferior tribunal before the High Court for review so that the court can determine whether to quash such proceedings The order will issue to quash a determination for excess or lack of jurisdiction error of law or breach of rules of nature justice
- 1048612 Cf lsquoprivate law remediesrsquo declaration injunction damages
- The process of judicial review can be defined as that by which the High Court exercises its supervisory jurisdiction over the proceedings and decisions of inferior
courts tribunals and other bodies or persons who carry out quasi-functions or who charged with the performance of public acts and duties
- Colin Chan v PP [1994] 3 SLR 642ndash On the scope of the Courtrsquos power under s 18(2) SCJA ndash Effect ldquoIt is one thing to say that the court has a specific power to review but
another to infer that the court can exercise that power in every proceeding brought before itrdquo
ndash (1) A courtrsquos powers when sitting as an appellate court are necessarily limited to that of the subordinate court from which the appeal emanated
ndash (2) A criminal court has jurisdiction to consider a defence alleging that a subsidiary legislation is substantially invalid but cannot consider whether it is procedurally invalid Subsidiary legislation can therefore only be challenged if it is ultra vires its enabling Act or is invalid on the face of it
ndash (3) It is clearly not proper to raise ultra vires issues which extend beyond substantive validity in the sense of being clearly wrong on the face of it in subordinate court proceedings Nevertheless the court had to still take into account the fact that both parties were ad idem with each other as to the courtrsquos competence in determining all the issues raised This was therefore an appropriate case for the application of Lord Diplockrsquos second exception in OrsquoReilly v Mackman The facts of this case being undoubtedly exceptional in the interests of justice and in consideration
- Chin Hong Onn Ronny v Tanah Merah Country Club [2001] SGHC 101ndash can just file OS under ord civil proced ndash for such action can bring either in sub court or high court Jurisdiction
Subordinate Courts and High Courtndash in above case ronie chin a member of golfing club and while palying on
green ball ran out captain of bluc issued suspension order on Ronnie chin for 3 mths he filed OS one prelim pt raised by them was that need to go for judicial review
ndash court held tt many precedents wher such parties have used normal OS proced and court dimised the prelim objection of tanah merah country club
Whose decisions may be reviewed- 1048612 Judicial functions quasi-judicial functions exercise of lsquoprerogative powersrsquo See
Ridge v Baldwin [1964] AC 40- 1048612 Clubs domestic tribunals ndash jurisdiction different Role of court to ensure fairness of
proceedings not to assess evidence and result Court should see that natural justice applied
ndash Note ndash must be inferior tribunal cf court military appeal ndash is not an INFERIOR tribunal must follow appeal proced on tt Cannot be judicially reviewed
- Chin Hong Onn Ronny v Tanah Merah Country Club (unrepted HC)ndash The litigant sought judicial review of the Clubrsquos decision on his golfing
rights Court held in favour of the club- Re Singh Kalpanath Disciplinary Committee
ndash An application for the remedy of certiorari to quash the findings of a disciplinary committee on the basis of bias
Principles of natural justice- 1048612 Right to be heard by unbiased tribunal- 1048612 Right to have notice of charges of misconduct- 1048612 Right to be heard in answer to the charges
Examples- 1048612 Harun Mundir v SAAA Singapore Amateur Athletics Assoc- 1048612 Re Singh Kalpanath Disciplinary Committee- 1048612 A Kanesananthan v Singapore Ceylon Tamilsrsquo Association unincorporated
association- 1048612 Mohammed Aziz bin Ibrahim v PKMS political party- 1048612 Shorvon v SMC Singapore Medical Council- 1048612 Rehearing some precedence accorded to tribunal of first instance
ndash Ling Uk Choon v Public Accountants Board [2004] 3 SLR 517 Accountants Act ndash in isues of proff misconduct tribunal has best knowledge to deal with such issues
- 1048612 Where statute provides for appeal in relation to professional bodyrsquos findingsndash 1048612 Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151
Singapore Medical Councilndash this statute may itself prov for parties to apply to court when unhappy with
what SMC has decided
Ling Uk Choon and Another v Public Accountants Board [2004] 3 SLR 517- Facts- The appellants were certified public accountants Ryoma Steel Enterprise (S) Pte Ltd
(ldquoRyomardquo) their client complained to the Public Accountants Board (ldquothe Boardrdquo) that the appellantsrsquo had refused to return certain documents belongingto Ryoma An Inquiry Committee (ldquoICrdquo) was constituted which subsequently concluded that the appellants were guilty of improper conduct under s 34(1)(c) of the Accountants Act (Cap 2 2001 Rev Ed) (ldquothe Actrdquo) The IC also concluded that the appellants had refused to return the documents because they were under a mistaken belief that they were under a duty to disclose irregularities in those documents The Board accepted the findings of the IC censured both appellants and ordered each of them to pay to the Board a sum of $6281 being the costs and expenses incidental to the hearing held by the IC The appellants appealed against the decision of the Board to the High Court pursuant to s 36 of the Act
- Held allowing the appeal- Section 36 of the Act provided the appellants with a right of appeal to the High Court
The appeal against the decision of the Board to the High Court was by way of rehearing pursuant to O 55 rr 1 and 2 of the Rules of Court (Cap 322 R 5 2004 Rev Ed) Therefore the High Court was not confined to considering whether the rules of natural justice had been observed and whether the decision of the Board had been honestly reached at [27] [30] and [32]
- The courtrsquos role in the appeal- The Boardrsquos counsel Mr Devinder Rai initially argued that the courtrsquos role in the
appeal was limited to considering whether the rules of natural justice had been observed and whether the decision of the Board had been honestly reached A few cases were cited for this proposition However as the appellantsrsquo counsel Mr Quek Mong Hua rightly pointed out those cases involved applications seeking judicial review where there was no statutory right of appeal Here s 36 of the Act provides the appellants with a right to appeal to the High Court Order 55 r 1 of the Rules of Court (Cap 322 R 5 2004 Rev Ed) provides that the Order shall apply to every appeal which under any written law lies to the High Court from any court tribunal or person Order 55 r 2 provides that such an appeal ldquoshall be by way of rehearingrdquo
- Mr Quek relied on L P Thean Jrsquos judgment in Chew Kia Ngee v Singapore Society of Accountants [1988] SLR 999 where Thean J said at 1003 [8]
- Against that decision this appeal is now brought Under s 34(2) of the Act the procedure governing such an appeal is the same as that for appeals to the High Court from the decisions of District Courts in civil matters Like an appeal from the District Courts this appeal is in the nature of a re-hearing and the same principles apply as are applicable to an appeal to the High Court against the decision of the District Court
- Using the analogy of appeals from the district courts Mr Quek then further cited a passage from Singapore Civil Procedure 2003 (Sweet amp Maxwell Asia 2003) in respect of O 55D r 2 on the question of rehearing The passage cited was inaccurately set out in his further submissions and I set it out below
- 55D31 ldquoBy way of rehearingrdquo mdash This provision does not mean that the High Court hears the witnesses afresh The High Court reviews the whole of the evidence (so far as is relevant to the appeal) in the court below and the course of the trial The general practice is essentially a ldquorehearing on documentsrdquo in that the court sits to review the official transcript of the evidence the judgersquos notes and the grounds of his decision The court rehears counsel on the issues of fact or law or both which form the substance of the appeal The court is not confined to the issues raised by the parties on appeal and is not limited to making an order which should have been made by the court below but may consider any relevant facts which have occurred since the trial and may make such further or other orders as it deems fit according to the state of things at the time of the hearing of the appeal hellip
- It should be noted that the statute being considered in Chew Kia Ngee was the Accountants Act (Cap 2 1985 Rev Ed) and s 34(2) thereof states that the procedure governing appeals to the High Court ldquoshall be the same as for appeals to the High Court from decisions of District Courts in civil mattersrdquo On the other hand s 36(1) of the Act does not mention appeals from the district courts Accordingly one must be careful when citing Thean Jrsquos judgment on this point Fortunately the end result is the same because although s 36(1) of the Act does not mention appeals from the district courts O 55 rr 1 and 2 do provide that an appeal under any written law to the High Court shall be by way of rehearing as I have mentioned
- However one should also be careful about citing the above passage from the Singapore Civil Procedure 2003 in respect of O 55D r 2 because O 55D pertains to appeals from the subordinate courts and not appeals under any written law There is a separate order for the latter ie O 55 Order 55 r 5(3) states that ldquoExcept with the
leave of the Court hearing any such appeal no grounds other than those stated in the notice of motion hellip may be relied upon by the appellant helliprdquo So for the purpose of O 55 it would be inaccurate to say that the court is not confined to the issues raised by the parties on appeal
- Nevertheless I accept that because the appeal before me is by way of rehearing I am not confined to considering whether the rules of natural justice have been observed and whether the decision of the Board had been honestly reached
- Indeed in further submissions Mr Rai no longer submitted that the courtrsquos role in a statutory appeal was as limited as originally suggested He pointed out that in Fox v General Medical Council [1960] 1 WLR 1017 Lord Radcliffe said at 1022
- Their Lordships think therefore that it would be an undue limitation of their duty and powers in dealing with the statutory appeal to require no more for the upholding of a determination than observance of what are known as the rules of natural justice
- However Mr Rai submitted that the decision of the tribunal below should be given some measure of precedence For this proposition he cited the following from Lord Radcliffersquos judgment in Fox at 1020
- The appeal in this case lies as of right and by statute ndash see section 36 of the Medical Act 1956 The terms of the statute that confers the right do not limit or qualify the appeal in any way so that an appellant is entitled to claim that it is in a general sense nothing less than a re-hearing of his case and a review of the decision Nevertheless an appellate court works under certain limitations which are inherent in any appeal that does not take the form as this does not of starting the case all over again and hearing the witnesses afresh In the High Court where appeals to the Court of Appeal are by function by way of re-hearing there are well-recognised principles which give some measure of precedence to the decisions of the tribunal that has seen and heard the witnesses over what might otherwise be the view of the facts preferred by the appellate court which has only the record of the evidence to study
- I do not disagree that the decision below should be given some precedence provided that the courtrsquos wider role in an appeal is borne in mind
Mohammad Aziz bin Ibrahim v PKMS [2003] SGHC 28- The plaintiffs were members of the defendants a political party The defendants
wrote to the plaintiffs informing them of a decision of the defendantsrsquo Executive Council to terminate their membership The plaintiffs replied that they had not been given an opportunity to defend themselves The defendants did not reply and instead summoned the plaintiffs to appear in two days before the Disciplinary Committee to answer charges against them The plaintiffs protested the lack of time to prepare their defence and reiterated that they would not be able to attend the hearing given their prior commitments The defendantsrsquo Disciplinary Committee met in the plaintiffsrsquo absence and decided to terminate the membership of the plaintiffs The plaintiffs were then summoned to appear before the defendantsrsquo Supreme Council The plaintiffs protested that the summons contained no details as to the allegations against them The defendants did not respond and proceeded to meet in the plaintiffsrsquo absence They decided to expel the plaintiffs and informed the plaintiffs of their decision in
writing The plaintiffs applied to court to have their expulsion declared null and void and to obtain a declaration that they are still members of the defendants as there was a breach of the rules of natural justice
- Heldo (1) Before a member could be expelled from an association he must have
had notice of the charges of misconduct which justified the termination of his membership and must have been given an opportunity to be heard by an unbiased committee
o (2) As a general rule before a person goes before a Disciplinary Committee he must have been given sufficient time to effectively prepare his defence The plaintiffs were not given sufficient time to prepare their defence There was a breach of the rules of natural justice The defendantsrsquo Supreme Council should not have taken into account the recommendations of the Disciplinary Committee
o (3) A person must be given sufficient particulars of the charge against him The notice to appear before the defendantsrsquo Supreme Council did not contain sufficient particulars of the charges against the plaintiffs The defendantsrsquo Supreme Council breached the rules of natural justice when the plaintiffs were expelled in their absence
o (4) As a matter of construction the defendantsrsquo constitution did not require the plaintiffs to exhaust their internal remedies before instituting legal proceedings The plaintiffs would have had difficulties framing an appeal given that they did not have adequate notice of the charges against them The defendants had wrongly given them six days to appeal when the defendantsrsquo constitution did not restrict the right of appeal
o (5) As the expulsion of the plaintiffs was in breach of the rules of natural justice their expulsion was declared null and void
Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151- Facts- The appellant Dr Chia Yang Pong (ldquoDr Chiardquo) a medical doctor pleaded guilty to
80 charges of professional misconduct before a hearing of the Disciplinary Committee of the Singapore Medical Council (ldquoSMCrdquo) The Disciplinary Committee convicted him of all the charges under s 45(1)(d) of the Medical Registration Act (Cap 174 1998 Rev Ed) (ldquoMRArdquo) and ordered that his name be removed from the Register of Medical Practitioners and that he be fined $1000 per charge on 65 of the 80 charges amounting to a total fine of $65000 Dr Chia appealed against these orders contending that the sentence was manifestly excessive and that his name should not be removed from the Register of Medical Practitioners Dr Chia also asserted that if his name was to be removed from the Register of Medical Practitioners then the fine should not have been imposed on him as well Dr Chia further submitted that the fine of $65000 exceeded the limit permitted by s 45(2)(d) of the MRA which provides that the powers of a Disciplinary Committee include the imposition of a fine not exceeding $10000 Dr Chia submitted that the $10000 limit applied to the entire proceedings before a Disciplinary Committee regardless of the number of charges levelled against the medical practitioner The SMC contended that
where a medical practitioner faced multiple charges the Disciplinary Committee had the power to impose an unlimited fine so long as the Disciplinary Committee did not impose a fine of more than $1000 per charge
- Held allowing the appeal in part- The court would accept as final and conclusive the finding of a Disciplinary
Committee on any issue of medical ethics or standards of professional conduct unless it was unsafe unreasonable or contrary to evidence The Disciplinary Committeersquos findings that Dr Chia was guilty of professional misconduct could not be said to be unsafe unreasonable or contrary to evidence Neither was the court able to say that Dr Chiarsquos professional misconduct did not warrant the removal of his name from the Register of Medical Practitioners at [7] to [9]
- - comment it depends on what the relevant statute provides for Judicial rview is confined to reviewing whether the relevant auth have exceeded their auth under the sttute
Tan Eng Chye v The Director of Prisons [2004] 2 SLR 640- Facts- The applicant pleaded guilty to a charge of robbery under s 392 of the Penal Code
(Cap 224 1985 Rev Ed) (ldquoPCrdquo) The punishment included caning The trial judge was concerned whether caning should be ordered as he had been informed that the applicant suffered from Marfan Syndrome a congenital condition affecting the heart eyes and other parts of the body The district judge postponed sentencing and asked for a medical report to be produced The medical report submitted merely stated that the applicant was fit for caning There was no indication that the doctor had even addressed his mind to the applicantrsquos condition or referred to the applicantrsquos previous medical records The district judge sentenced the applicant to imprisonment for four years and six months and 12 strokes of the cane The present application for leave to apply for an order of certiorari was brought on the basis that the medical assessment conducted was not sufficiently thorough
- The respondent objected to the application on the grounds that- the application was premature because the applicant would be examined again on the
day scheduled for caning- the application could have no useful outcome- the application was improper and that- there were no grounds to justify a review- Held granting the application- The application was not premature as it would be too late to seek redress when the
plaintiff was examined on the date of caning at [21] to [22]- The application could have a useful outcome from a ruling on the proper form of
medical examination and assessment to be done at [25]- There was no procedural deficiency in the application and no failure of disclosure by
the applicant at [28] and [32]- The proper medical assessment to be made under s 232(1) CPC was a matter suitable
for judicial review at [38] and [49]- Review and conclusion
- Under the law an offender is to be caned for the offence he committed But the law is not without compassion and it provides that before anyone is caned he is to undergo medical examination to ensure that he will not suffer serious unintended injuries Only those found to be fit to undergo caning will be caned For those who are found not suitable the sentence of caning is not to be carried out
- The applicant has been sentenced to be caned He has a medical condition Caning may have serious effects on him The district judge who convicted him was concerned and called for a medical report One was produced to him but it was clearly unsatisfactory There is no indication that the medical officer had called for or considered the applicantrsquos medical records There is no indication that the medical officer made an assessment of the severity of the applicantrsquos condition Indeed there is no indication whether any thought has been given to the effects that caning can have on the applicant who has Marfan Syndrome
- The applicant wants his condition to be given proper consideration He produced medical reports of the effects that caning may have on him to show that there is substance in his concern
- The respondentrsquos response is that the applicant does not have any recourse because there is to be another examination done before caning is administered but it gives no assurance that the examination will be more thorough than the one done on 16 October 2003
- In these circumstances there is a clear issue to be determined ndash whether the protection offered in s 232 of the Criminal Procedure Code is satisfied by that type of minimal certification or whether it requires more to be done
- The respondent says that the applicant should be shut out and not allowed to proceed further on the ground that it is a groundless or hopeless case or a misguided or trivial complaint and a waste of the courtrsquos time
- In Lai Swee Lin Lindarsquos case the Court of Appeal adopted Lord Diplockrsquos statement in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409 that
- For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself ie that part of the common law that is given by lawyers the label of ldquothe prerogativerdquo
- By this test the medical assessment to be made in compliance with s 232(1) of the Criminal Procedure Code to ensure that an offender is sufficiently fit to be caned is susceptible to judicial review The application is not groundless hopeless misguided trivial or a waste of time
- I therefore gave the applicant leave to proceed The respondent still maintains that he should not be allowed to proceed and has appealed against my order
Tan Eng Chye v The Director of Prisons (No 2) [2004] 4 SLR 521 - Held dismissing the application- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law to make decisions that would lead to administrative action by an authority endowed with executive powers which would have consequences affecting some person In the instant case Dr Ooirsquos decision was not amenable to judicial review as the district court judge was duty bound to impose the sentence of caning irrespective of Dr Ooirsquos report The remedy in the event of any dissatisfaction with the district court judgersquos order lay in the appeal process at [7] and [8]
- Since this was not a judicial review case at all it would be a pointless and unwarranted exercise to ask whether Dr Ooi had acted reasonably in the Wednesbury sense Tan could not be allowed to attack Dr Ooirsquos report Otherwise any party who was unhappy with a trial judgersquos decision but who had no valid grounds of appeal would be tempted to attack the evidence of witnesses such as the psychiatric expert or prison doctor at [10] and [11]
- Against the background of these statutory provisions it is apparent that the applicantrsquos case that Dr Ooi Poh Hinrsquos certification ought to be quashed because he did not take into account matters in the Wednesbury sense (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) was misconceived The making of this application indicated that the applicant had laboured under the mistaken belief that every act or conduct of a public servant is justiciable by way of a judicial review In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Diplock held at 408 that
- The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ldquodecision-makerrdquo or else a refusal by him to make a decision
- To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker although it may affect him too It must affect such other person either
- by altering rights or obligations of that person which are enforceable by or against him in private law or
- by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do so until there has been communicated to him some rational grounds for withdrawing it on which he had been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn hellip
- Lord Diplock further amplified what he said above by holding that- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph
- The report by Dr Ooi was obviously a ldquodecisionrdquo but that alone did not make Dr Ooi a ldquodecision makerrdquo in the sense explained in the Lord Diplock judgment above The district court judge as I had said was duty bound to impose the sentence of caning irrespective of what Dr Ooi might have said in his report Dr Ooi was a public servant discharging what I might call a ldquonon-decision makingrdquo duty in the Diplock sense Further examples of non-decision making conduct include acts of police officers such as in the arrest of a person suspected of committing an offence Such decisions of an arresting officer are not amenable to judicial review The rights of the arrested person lie in the criminal as well as civil law ndash not in an administrative action A public officer performing such duties cannot be made accountable by way of judicial review because the law would have provided avenues for redress in the case of any error or wrongdoing on the part of the public officer Sometimes the redress might not be adequate or obtained in time but that does not detract from the schematic structure of the complainantrsquos legal remedies An arrested person might be freed or charged If he is charged he may defend himself at trial If he is found guilty he has his right of appeal The arresting officer cannot be made to account for his action as to whether he had exercised Wednesbury reasonableness in deciding to arrest a suspect Every public officer will have made numerous decisions on a daily basis They cannot all be accountable for each and every one of those decisions in an administrative action even if they affect another person or body of persons otherwise the entire apparatus of public service might cease to function Similarly a medical officer performing his duty in determining whether a prisoner is fit for caning is not a ldquodecision makerrdquo in the Diplock sense The substantive administrative action would have been the decision of the judge who ordered the caning The remedy in the case of any dissatisfaction with that order lies in the appeal process In the case of the medical officer reporting under a s 232 (1) situation the substantive administrative action or the Diplock ldquodecision makingrdquo function lies with the prison authority which may stop the caning If it does not exercise that function the remedy lies in an action against the prison authority for failing to discharge its statutory duty For these reasons the applicant had no merit in applying for leave to issue an application for an order of certiorari Accordingly this application before me must be dismissed
When may decisions not be reviewed- Cannot just file for JR must look to nature of decision
ndash Contractualndash Or sth tt SHLD be judicially reviewedndash Eg contract with PWD merely matter of contract
- 1048612 Look to the source of the power that is being challenged- 1048612 Instances where judicial review will NOT lie
ndash Person carrying out only a private duty Re Fong Thin Choondash Re Fong Thin Choo [1992] 1 SLR 120
- This was a case involving an application for an order of prohibition against the Director-General of Customs and Excise
- Held
- (1) DG was carrying out Public Duty - (2) S 27 GPA did not prevent a court from granting an order of
prohibition against public acts [State Counsel had argued that no prohibition was possible since it would be tantamount to granting an injunction against the govt which is prevented by s 27 GPA ndash argument rejected]
- (3) Scope of Review -- whether the DG in reaching his decision had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the statute he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider On the facts the DG had failed to consider the Applicantrsquos evidence Order of Prohibition granted [ie Wednesbury Unreasonableness]
- Even if it is a public authority may still be an issue of private and not public law such as contract
- If the applicant asserts rights which lie in private law rather than public law judicial review is not available
ndash Chan Mun Poy v DG of Telecommunications [installation of telephone line]
- Court held tt merely matter of contract - case involving installation of telephone line the applicant sought
an order of mandamus against the respondent to reinstall a telephone line Held that the rights and liabilities in this case arose out of the contract between the applicant and respondent and dismissed the application
ndash Exp Lavelle [employment at BBC]- BBC owned by state in past query was contract of emplyt ndash
cannot be judicially reviewed- ndash a case concerning employment at the BBC - Held that it concerned a contractual matter even though the BBC
was a public bodyndash Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
[employment by PSC]- CA held that this was a contractual relationship between PSC and
Linda Lai This was a case on employment by the PSC The Court rejected the arguments raised to bring it into ldquopublic lawrdquo arena (ie PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation)
- Linda loy in employ of PSC public servant instruction manual governing behaviour and discipline of public offiers throughout public service
- She argd tt this was matter for public law and tt JR shld be possible
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
courts tribunals and other bodies or persons who carry out quasi-functions or who charged with the performance of public acts and duties
- Colin Chan v PP [1994] 3 SLR 642ndash On the scope of the Courtrsquos power under s 18(2) SCJA ndash Effect ldquoIt is one thing to say that the court has a specific power to review but
another to infer that the court can exercise that power in every proceeding brought before itrdquo
ndash (1) A courtrsquos powers when sitting as an appellate court are necessarily limited to that of the subordinate court from which the appeal emanated
ndash (2) A criminal court has jurisdiction to consider a defence alleging that a subsidiary legislation is substantially invalid but cannot consider whether it is procedurally invalid Subsidiary legislation can therefore only be challenged if it is ultra vires its enabling Act or is invalid on the face of it
ndash (3) It is clearly not proper to raise ultra vires issues which extend beyond substantive validity in the sense of being clearly wrong on the face of it in subordinate court proceedings Nevertheless the court had to still take into account the fact that both parties were ad idem with each other as to the courtrsquos competence in determining all the issues raised This was therefore an appropriate case for the application of Lord Diplockrsquos second exception in OrsquoReilly v Mackman The facts of this case being undoubtedly exceptional in the interests of justice and in consideration
- Chin Hong Onn Ronny v Tanah Merah Country Club [2001] SGHC 101ndash can just file OS under ord civil proced ndash for such action can bring either in sub court or high court Jurisdiction
Subordinate Courts and High Courtndash in above case ronie chin a member of golfing club and while palying on
green ball ran out captain of bluc issued suspension order on Ronnie chin for 3 mths he filed OS one prelim pt raised by them was that need to go for judicial review
ndash court held tt many precedents wher such parties have used normal OS proced and court dimised the prelim objection of tanah merah country club
Whose decisions may be reviewed- 1048612 Judicial functions quasi-judicial functions exercise of lsquoprerogative powersrsquo See
Ridge v Baldwin [1964] AC 40- 1048612 Clubs domestic tribunals ndash jurisdiction different Role of court to ensure fairness of
proceedings not to assess evidence and result Court should see that natural justice applied
ndash Note ndash must be inferior tribunal cf court military appeal ndash is not an INFERIOR tribunal must follow appeal proced on tt Cannot be judicially reviewed
- Chin Hong Onn Ronny v Tanah Merah Country Club (unrepted HC)ndash The litigant sought judicial review of the Clubrsquos decision on his golfing
rights Court held in favour of the club- Re Singh Kalpanath Disciplinary Committee
ndash An application for the remedy of certiorari to quash the findings of a disciplinary committee on the basis of bias
Principles of natural justice- 1048612 Right to be heard by unbiased tribunal- 1048612 Right to have notice of charges of misconduct- 1048612 Right to be heard in answer to the charges
Examples- 1048612 Harun Mundir v SAAA Singapore Amateur Athletics Assoc- 1048612 Re Singh Kalpanath Disciplinary Committee- 1048612 A Kanesananthan v Singapore Ceylon Tamilsrsquo Association unincorporated
association- 1048612 Mohammed Aziz bin Ibrahim v PKMS political party- 1048612 Shorvon v SMC Singapore Medical Council- 1048612 Rehearing some precedence accorded to tribunal of first instance
ndash Ling Uk Choon v Public Accountants Board [2004] 3 SLR 517 Accountants Act ndash in isues of proff misconduct tribunal has best knowledge to deal with such issues
- 1048612 Where statute provides for appeal in relation to professional bodyrsquos findingsndash 1048612 Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151
Singapore Medical Councilndash this statute may itself prov for parties to apply to court when unhappy with
what SMC has decided
Ling Uk Choon and Another v Public Accountants Board [2004] 3 SLR 517- Facts- The appellants were certified public accountants Ryoma Steel Enterprise (S) Pte Ltd
(ldquoRyomardquo) their client complained to the Public Accountants Board (ldquothe Boardrdquo) that the appellantsrsquo had refused to return certain documents belongingto Ryoma An Inquiry Committee (ldquoICrdquo) was constituted which subsequently concluded that the appellants were guilty of improper conduct under s 34(1)(c) of the Accountants Act (Cap 2 2001 Rev Ed) (ldquothe Actrdquo) The IC also concluded that the appellants had refused to return the documents because they were under a mistaken belief that they were under a duty to disclose irregularities in those documents The Board accepted the findings of the IC censured both appellants and ordered each of them to pay to the Board a sum of $6281 being the costs and expenses incidental to the hearing held by the IC The appellants appealed against the decision of the Board to the High Court pursuant to s 36 of the Act
- Held allowing the appeal- Section 36 of the Act provided the appellants with a right of appeal to the High Court
The appeal against the decision of the Board to the High Court was by way of rehearing pursuant to O 55 rr 1 and 2 of the Rules of Court (Cap 322 R 5 2004 Rev Ed) Therefore the High Court was not confined to considering whether the rules of natural justice had been observed and whether the decision of the Board had been honestly reached at [27] [30] and [32]
- The courtrsquos role in the appeal- The Boardrsquos counsel Mr Devinder Rai initially argued that the courtrsquos role in the
appeal was limited to considering whether the rules of natural justice had been observed and whether the decision of the Board had been honestly reached A few cases were cited for this proposition However as the appellantsrsquo counsel Mr Quek Mong Hua rightly pointed out those cases involved applications seeking judicial review where there was no statutory right of appeal Here s 36 of the Act provides the appellants with a right to appeal to the High Court Order 55 r 1 of the Rules of Court (Cap 322 R 5 2004 Rev Ed) provides that the Order shall apply to every appeal which under any written law lies to the High Court from any court tribunal or person Order 55 r 2 provides that such an appeal ldquoshall be by way of rehearingrdquo
- Mr Quek relied on L P Thean Jrsquos judgment in Chew Kia Ngee v Singapore Society of Accountants [1988] SLR 999 where Thean J said at 1003 [8]
- Against that decision this appeal is now brought Under s 34(2) of the Act the procedure governing such an appeal is the same as that for appeals to the High Court from the decisions of District Courts in civil matters Like an appeal from the District Courts this appeal is in the nature of a re-hearing and the same principles apply as are applicable to an appeal to the High Court against the decision of the District Court
- Using the analogy of appeals from the district courts Mr Quek then further cited a passage from Singapore Civil Procedure 2003 (Sweet amp Maxwell Asia 2003) in respect of O 55D r 2 on the question of rehearing The passage cited was inaccurately set out in his further submissions and I set it out below
- 55D31 ldquoBy way of rehearingrdquo mdash This provision does not mean that the High Court hears the witnesses afresh The High Court reviews the whole of the evidence (so far as is relevant to the appeal) in the court below and the course of the trial The general practice is essentially a ldquorehearing on documentsrdquo in that the court sits to review the official transcript of the evidence the judgersquos notes and the grounds of his decision The court rehears counsel on the issues of fact or law or both which form the substance of the appeal The court is not confined to the issues raised by the parties on appeal and is not limited to making an order which should have been made by the court below but may consider any relevant facts which have occurred since the trial and may make such further or other orders as it deems fit according to the state of things at the time of the hearing of the appeal hellip
- It should be noted that the statute being considered in Chew Kia Ngee was the Accountants Act (Cap 2 1985 Rev Ed) and s 34(2) thereof states that the procedure governing appeals to the High Court ldquoshall be the same as for appeals to the High Court from decisions of District Courts in civil mattersrdquo On the other hand s 36(1) of the Act does not mention appeals from the district courts Accordingly one must be careful when citing Thean Jrsquos judgment on this point Fortunately the end result is the same because although s 36(1) of the Act does not mention appeals from the district courts O 55 rr 1 and 2 do provide that an appeal under any written law to the High Court shall be by way of rehearing as I have mentioned
- However one should also be careful about citing the above passage from the Singapore Civil Procedure 2003 in respect of O 55D r 2 because O 55D pertains to appeals from the subordinate courts and not appeals under any written law There is a separate order for the latter ie O 55 Order 55 r 5(3) states that ldquoExcept with the
leave of the Court hearing any such appeal no grounds other than those stated in the notice of motion hellip may be relied upon by the appellant helliprdquo So for the purpose of O 55 it would be inaccurate to say that the court is not confined to the issues raised by the parties on appeal
- Nevertheless I accept that because the appeal before me is by way of rehearing I am not confined to considering whether the rules of natural justice have been observed and whether the decision of the Board had been honestly reached
- Indeed in further submissions Mr Rai no longer submitted that the courtrsquos role in a statutory appeal was as limited as originally suggested He pointed out that in Fox v General Medical Council [1960] 1 WLR 1017 Lord Radcliffe said at 1022
- Their Lordships think therefore that it would be an undue limitation of their duty and powers in dealing with the statutory appeal to require no more for the upholding of a determination than observance of what are known as the rules of natural justice
- However Mr Rai submitted that the decision of the tribunal below should be given some measure of precedence For this proposition he cited the following from Lord Radcliffersquos judgment in Fox at 1020
- The appeal in this case lies as of right and by statute ndash see section 36 of the Medical Act 1956 The terms of the statute that confers the right do not limit or qualify the appeal in any way so that an appellant is entitled to claim that it is in a general sense nothing less than a re-hearing of his case and a review of the decision Nevertheless an appellate court works under certain limitations which are inherent in any appeal that does not take the form as this does not of starting the case all over again and hearing the witnesses afresh In the High Court where appeals to the Court of Appeal are by function by way of re-hearing there are well-recognised principles which give some measure of precedence to the decisions of the tribunal that has seen and heard the witnesses over what might otherwise be the view of the facts preferred by the appellate court which has only the record of the evidence to study
- I do not disagree that the decision below should be given some precedence provided that the courtrsquos wider role in an appeal is borne in mind
Mohammad Aziz bin Ibrahim v PKMS [2003] SGHC 28- The plaintiffs were members of the defendants a political party The defendants
wrote to the plaintiffs informing them of a decision of the defendantsrsquo Executive Council to terminate their membership The plaintiffs replied that they had not been given an opportunity to defend themselves The defendants did not reply and instead summoned the plaintiffs to appear in two days before the Disciplinary Committee to answer charges against them The plaintiffs protested the lack of time to prepare their defence and reiterated that they would not be able to attend the hearing given their prior commitments The defendantsrsquo Disciplinary Committee met in the plaintiffsrsquo absence and decided to terminate the membership of the plaintiffs The plaintiffs were then summoned to appear before the defendantsrsquo Supreme Council The plaintiffs protested that the summons contained no details as to the allegations against them The defendants did not respond and proceeded to meet in the plaintiffsrsquo absence They decided to expel the plaintiffs and informed the plaintiffs of their decision in
writing The plaintiffs applied to court to have their expulsion declared null and void and to obtain a declaration that they are still members of the defendants as there was a breach of the rules of natural justice
- Heldo (1) Before a member could be expelled from an association he must have
had notice of the charges of misconduct which justified the termination of his membership and must have been given an opportunity to be heard by an unbiased committee
o (2) As a general rule before a person goes before a Disciplinary Committee he must have been given sufficient time to effectively prepare his defence The plaintiffs were not given sufficient time to prepare their defence There was a breach of the rules of natural justice The defendantsrsquo Supreme Council should not have taken into account the recommendations of the Disciplinary Committee
o (3) A person must be given sufficient particulars of the charge against him The notice to appear before the defendantsrsquo Supreme Council did not contain sufficient particulars of the charges against the plaintiffs The defendantsrsquo Supreme Council breached the rules of natural justice when the plaintiffs were expelled in their absence
o (4) As a matter of construction the defendantsrsquo constitution did not require the plaintiffs to exhaust their internal remedies before instituting legal proceedings The plaintiffs would have had difficulties framing an appeal given that they did not have adequate notice of the charges against them The defendants had wrongly given them six days to appeal when the defendantsrsquo constitution did not restrict the right of appeal
o (5) As the expulsion of the plaintiffs was in breach of the rules of natural justice their expulsion was declared null and void
Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151- Facts- The appellant Dr Chia Yang Pong (ldquoDr Chiardquo) a medical doctor pleaded guilty to
80 charges of professional misconduct before a hearing of the Disciplinary Committee of the Singapore Medical Council (ldquoSMCrdquo) The Disciplinary Committee convicted him of all the charges under s 45(1)(d) of the Medical Registration Act (Cap 174 1998 Rev Ed) (ldquoMRArdquo) and ordered that his name be removed from the Register of Medical Practitioners and that he be fined $1000 per charge on 65 of the 80 charges amounting to a total fine of $65000 Dr Chia appealed against these orders contending that the sentence was manifestly excessive and that his name should not be removed from the Register of Medical Practitioners Dr Chia also asserted that if his name was to be removed from the Register of Medical Practitioners then the fine should not have been imposed on him as well Dr Chia further submitted that the fine of $65000 exceeded the limit permitted by s 45(2)(d) of the MRA which provides that the powers of a Disciplinary Committee include the imposition of a fine not exceeding $10000 Dr Chia submitted that the $10000 limit applied to the entire proceedings before a Disciplinary Committee regardless of the number of charges levelled against the medical practitioner The SMC contended that
where a medical practitioner faced multiple charges the Disciplinary Committee had the power to impose an unlimited fine so long as the Disciplinary Committee did not impose a fine of more than $1000 per charge
- Held allowing the appeal in part- The court would accept as final and conclusive the finding of a Disciplinary
Committee on any issue of medical ethics or standards of professional conduct unless it was unsafe unreasonable or contrary to evidence The Disciplinary Committeersquos findings that Dr Chia was guilty of professional misconduct could not be said to be unsafe unreasonable or contrary to evidence Neither was the court able to say that Dr Chiarsquos professional misconduct did not warrant the removal of his name from the Register of Medical Practitioners at [7] to [9]
- - comment it depends on what the relevant statute provides for Judicial rview is confined to reviewing whether the relevant auth have exceeded their auth under the sttute
Tan Eng Chye v The Director of Prisons [2004] 2 SLR 640- Facts- The applicant pleaded guilty to a charge of robbery under s 392 of the Penal Code
(Cap 224 1985 Rev Ed) (ldquoPCrdquo) The punishment included caning The trial judge was concerned whether caning should be ordered as he had been informed that the applicant suffered from Marfan Syndrome a congenital condition affecting the heart eyes and other parts of the body The district judge postponed sentencing and asked for a medical report to be produced The medical report submitted merely stated that the applicant was fit for caning There was no indication that the doctor had even addressed his mind to the applicantrsquos condition or referred to the applicantrsquos previous medical records The district judge sentenced the applicant to imprisonment for four years and six months and 12 strokes of the cane The present application for leave to apply for an order of certiorari was brought on the basis that the medical assessment conducted was not sufficiently thorough
- The respondent objected to the application on the grounds that- the application was premature because the applicant would be examined again on the
day scheduled for caning- the application could have no useful outcome- the application was improper and that- there were no grounds to justify a review- Held granting the application- The application was not premature as it would be too late to seek redress when the
plaintiff was examined on the date of caning at [21] to [22]- The application could have a useful outcome from a ruling on the proper form of
medical examination and assessment to be done at [25]- There was no procedural deficiency in the application and no failure of disclosure by
the applicant at [28] and [32]- The proper medical assessment to be made under s 232(1) CPC was a matter suitable
for judicial review at [38] and [49]- Review and conclusion
- Under the law an offender is to be caned for the offence he committed But the law is not without compassion and it provides that before anyone is caned he is to undergo medical examination to ensure that he will not suffer serious unintended injuries Only those found to be fit to undergo caning will be caned For those who are found not suitable the sentence of caning is not to be carried out
- The applicant has been sentenced to be caned He has a medical condition Caning may have serious effects on him The district judge who convicted him was concerned and called for a medical report One was produced to him but it was clearly unsatisfactory There is no indication that the medical officer had called for or considered the applicantrsquos medical records There is no indication that the medical officer made an assessment of the severity of the applicantrsquos condition Indeed there is no indication whether any thought has been given to the effects that caning can have on the applicant who has Marfan Syndrome
- The applicant wants his condition to be given proper consideration He produced medical reports of the effects that caning may have on him to show that there is substance in his concern
- The respondentrsquos response is that the applicant does not have any recourse because there is to be another examination done before caning is administered but it gives no assurance that the examination will be more thorough than the one done on 16 October 2003
- In these circumstances there is a clear issue to be determined ndash whether the protection offered in s 232 of the Criminal Procedure Code is satisfied by that type of minimal certification or whether it requires more to be done
- The respondent says that the applicant should be shut out and not allowed to proceed further on the ground that it is a groundless or hopeless case or a misguided or trivial complaint and a waste of the courtrsquos time
- In Lai Swee Lin Lindarsquos case the Court of Appeal adopted Lord Diplockrsquos statement in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409 that
- For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself ie that part of the common law that is given by lawyers the label of ldquothe prerogativerdquo
- By this test the medical assessment to be made in compliance with s 232(1) of the Criminal Procedure Code to ensure that an offender is sufficiently fit to be caned is susceptible to judicial review The application is not groundless hopeless misguided trivial or a waste of time
- I therefore gave the applicant leave to proceed The respondent still maintains that he should not be allowed to proceed and has appealed against my order
Tan Eng Chye v The Director of Prisons (No 2) [2004] 4 SLR 521 - Held dismissing the application- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law to make decisions that would lead to administrative action by an authority endowed with executive powers which would have consequences affecting some person In the instant case Dr Ooirsquos decision was not amenable to judicial review as the district court judge was duty bound to impose the sentence of caning irrespective of Dr Ooirsquos report The remedy in the event of any dissatisfaction with the district court judgersquos order lay in the appeal process at [7] and [8]
- Since this was not a judicial review case at all it would be a pointless and unwarranted exercise to ask whether Dr Ooi had acted reasonably in the Wednesbury sense Tan could not be allowed to attack Dr Ooirsquos report Otherwise any party who was unhappy with a trial judgersquos decision but who had no valid grounds of appeal would be tempted to attack the evidence of witnesses such as the psychiatric expert or prison doctor at [10] and [11]
- Against the background of these statutory provisions it is apparent that the applicantrsquos case that Dr Ooi Poh Hinrsquos certification ought to be quashed because he did not take into account matters in the Wednesbury sense (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) was misconceived The making of this application indicated that the applicant had laboured under the mistaken belief that every act or conduct of a public servant is justiciable by way of a judicial review In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Diplock held at 408 that
- The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ldquodecision-makerrdquo or else a refusal by him to make a decision
- To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker although it may affect him too It must affect such other person either
- by altering rights or obligations of that person which are enforceable by or against him in private law or
- by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do so until there has been communicated to him some rational grounds for withdrawing it on which he had been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn hellip
- Lord Diplock further amplified what he said above by holding that- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph
- The report by Dr Ooi was obviously a ldquodecisionrdquo but that alone did not make Dr Ooi a ldquodecision makerrdquo in the sense explained in the Lord Diplock judgment above The district court judge as I had said was duty bound to impose the sentence of caning irrespective of what Dr Ooi might have said in his report Dr Ooi was a public servant discharging what I might call a ldquonon-decision makingrdquo duty in the Diplock sense Further examples of non-decision making conduct include acts of police officers such as in the arrest of a person suspected of committing an offence Such decisions of an arresting officer are not amenable to judicial review The rights of the arrested person lie in the criminal as well as civil law ndash not in an administrative action A public officer performing such duties cannot be made accountable by way of judicial review because the law would have provided avenues for redress in the case of any error or wrongdoing on the part of the public officer Sometimes the redress might not be adequate or obtained in time but that does not detract from the schematic structure of the complainantrsquos legal remedies An arrested person might be freed or charged If he is charged he may defend himself at trial If he is found guilty he has his right of appeal The arresting officer cannot be made to account for his action as to whether he had exercised Wednesbury reasonableness in deciding to arrest a suspect Every public officer will have made numerous decisions on a daily basis They cannot all be accountable for each and every one of those decisions in an administrative action even if they affect another person or body of persons otherwise the entire apparatus of public service might cease to function Similarly a medical officer performing his duty in determining whether a prisoner is fit for caning is not a ldquodecision makerrdquo in the Diplock sense The substantive administrative action would have been the decision of the judge who ordered the caning The remedy in the case of any dissatisfaction with that order lies in the appeal process In the case of the medical officer reporting under a s 232 (1) situation the substantive administrative action or the Diplock ldquodecision makingrdquo function lies with the prison authority which may stop the caning If it does not exercise that function the remedy lies in an action against the prison authority for failing to discharge its statutory duty For these reasons the applicant had no merit in applying for leave to issue an application for an order of certiorari Accordingly this application before me must be dismissed
When may decisions not be reviewed- Cannot just file for JR must look to nature of decision
ndash Contractualndash Or sth tt SHLD be judicially reviewedndash Eg contract with PWD merely matter of contract
- 1048612 Look to the source of the power that is being challenged- 1048612 Instances where judicial review will NOT lie
ndash Person carrying out only a private duty Re Fong Thin Choondash Re Fong Thin Choo [1992] 1 SLR 120
- This was a case involving an application for an order of prohibition against the Director-General of Customs and Excise
- Held
- (1) DG was carrying out Public Duty - (2) S 27 GPA did not prevent a court from granting an order of
prohibition against public acts [State Counsel had argued that no prohibition was possible since it would be tantamount to granting an injunction against the govt which is prevented by s 27 GPA ndash argument rejected]
- (3) Scope of Review -- whether the DG in reaching his decision had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the statute he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider On the facts the DG had failed to consider the Applicantrsquos evidence Order of Prohibition granted [ie Wednesbury Unreasonableness]
- Even if it is a public authority may still be an issue of private and not public law such as contract
- If the applicant asserts rights which lie in private law rather than public law judicial review is not available
ndash Chan Mun Poy v DG of Telecommunications [installation of telephone line]
- Court held tt merely matter of contract - case involving installation of telephone line the applicant sought
an order of mandamus against the respondent to reinstall a telephone line Held that the rights and liabilities in this case arose out of the contract between the applicant and respondent and dismissed the application
ndash Exp Lavelle [employment at BBC]- BBC owned by state in past query was contract of emplyt ndash
cannot be judicially reviewed- ndash a case concerning employment at the BBC - Held that it concerned a contractual matter even though the BBC
was a public bodyndash Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
[employment by PSC]- CA held that this was a contractual relationship between PSC and
Linda Lai This was a case on employment by the PSC The Court rejected the arguments raised to bring it into ldquopublic lawrdquo arena (ie PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation)
- Linda loy in employ of PSC public servant instruction manual governing behaviour and discipline of public offiers throughout public service
- She argd tt this was matter for public law and tt JR shld be possible
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
ndash An application for the remedy of certiorari to quash the findings of a disciplinary committee on the basis of bias
Principles of natural justice- 1048612 Right to be heard by unbiased tribunal- 1048612 Right to have notice of charges of misconduct- 1048612 Right to be heard in answer to the charges
Examples- 1048612 Harun Mundir v SAAA Singapore Amateur Athletics Assoc- 1048612 Re Singh Kalpanath Disciplinary Committee- 1048612 A Kanesananthan v Singapore Ceylon Tamilsrsquo Association unincorporated
association- 1048612 Mohammed Aziz bin Ibrahim v PKMS political party- 1048612 Shorvon v SMC Singapore Medical Council- 1048612 Rehearing some precedence accorded to tribunal of first instance
ndash Ling Uk Choon v Public Accountants Board [2004] 3 SLR 517 Accountants Act ndash in isues of proff misconduct tribunal has best knowledge to deal with such issues
- 1048612 Where statute provides for appeal in relation to professional bodyrsquos findingsndash 1048612 Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151
Singapore Medical Councilndash this statute may itself prov for parties to apply to court when unhappy with
what SMC has decided
Ling Uk Choon and Another v Public Accountants Board [2004] 3 SLR 517- Facts- The appellants were certified public accountants Ryoma Steel Enterprise (S) Pte Ltd
(ldquoRyomardquo) their client complained to the Public Accountants Board (ldquothe Boardrdquo) that the appellantsrsquo had refused to return certain documents belongingto Ryoma An Inquiry Committee (ldquoICrdquo) was constituted which subsequently concluded that the appellants were guilty of improper conduct under s 34(1)(c) of the Accountants Act (Cap 2 2001 Rev Ed) (ldquothe Actrdquo) The IC also concluded that the appellants had refused to return the documents because they were under a mistaken belief that they were under a duty to disclose irregularities in those documents The Board accepted the findings of the IC censured both appellants and ordered each of them to pay to the Board a sum of $6281 being the costs and expenses incidental to the hearing held by the IC The appellants appealed against the decision of the Board to the High Court pursuant to s 36 of the Act
- Held allowing the appeal- Section 36 of the Act provided the appellants with a right of appeal to the High Court
The appeal against the decision of the Board to the High Court was by way of rehearing pursuant to O 55 rr 1 and 2 of the Rules of Court (Cap 322 R 5 2004 Rev Ed) Therefore the High Court was not confined to considering whether the rules of natural justice had been observed and whether the decision of the Board had been honestly reached at [27] [30] and [32]
- The courtrsquos role in the appeal- The Boardrsquos counsel Mr Devinder Rai initially argued that the courtrsquos role in the
appeal was limited to considering whether the rules of natural justice had been observed and whether the decision of the Board had been honestly reached A few cases were cited for this proposition However as the appellantsrsquo counsel Mr Quek Mong Hua rightly pointed out those cases involved applications seeking judicial review where there was no statutory right of appeal Here s 36 of the Act provides the appellants with a right to appeal to the High Court Order 55 r 1 of the Rules of Court (Cap 322 R 5 2004 Rev Ed) provides that the Order shall apply to every appeal which under any written law lies to the High Court from any court tribunal or person Order 55 r 2 provides that such an appeal ldquoshall be by way of rehearingrdquo
- Mr Quek relied on L P Thean Jrsquos judgment in Chew Kia Ngee v Singapore Society of Accountants [1988] SLR 999 where Thean J said at 1003 [8]
- Against that decision this appeal is now brought Under s 34(2) of the Act the procedure governing such an appeal is the same as that for appeals to the High Court from the decisions of District Courts in civil matters Like an appeal from the District Courts this appeal is in the nature of a re-hearing and the same principles apply as are applicable to an appeal to the High Court against the decision of the District Court
- Using the analogy of appeals from the district courts Mr Quek then further cited a passage from Singapore Civil Procedure 2003 (Sweet amp Maxwell Asia 2003) in respect of O 55D r 2 on the question of rehearing The passage cited was inaccurately set out in his further submissions and I set it out below
- 55D31 ldquoBy way of rehearingrdquo mdash This provision does not mean that the High Court hears the witnesses afresh The High Court reviews the whole of the evidence (so far as is relevant to the appeal) in the court below and the course of the trial The general practice is essentially a ldquorehearing on documentsrdquo in that the court sits to review the official transcript of the evidence the judgersquos notes and the grounds of his decision The court rehears counsel on the issues of fact or law or both which form the substance of the appeal The court is not confined to the issues raised by the parties on appeal and is not limited to making an order which should have been made by the court below but may consider any relevant facts which have occurred since the trial and may make such further or other orders as it deems fit according to the state of things at the time of the hearing of the appeal hellip
- It should be noted that the statute being considered in Chew Kia Ngee was the Accountants Act (Cap 2 1985 Rev Ed) and s 34(2) thereof states that the procedure governing appeals to the High Court ldquoshall be the same as for appeals to the High Court from decisions of District Courts in civil mattersrdquo On the other hand s 36(1) of the Act does not mention appeals from the district courts Accordingly one must be careful when citing Thean Jrsquos judgment on this point Fortunately the end result is the same because although s 36(1) of the Act does not mention appeals from the district courts O 55 rr 1 and 2 do provide that an appeal under any written law to the High Court shall be by way of rehearing as I have mentioned
- However one should also be careful about citing the above passage from the Singapore Civil Procedure 2003 in respect of O 55D r 2 because O 55D pertains to appeals from the subordinate courts and not appeals under any written law There is a separate order for the latter ie O 55 Order 55 r 5(3) states that ldquoExcept with the
leave of the Court hearing any such appeal no grounds other than those stated in the notice of motion hellip may be relied upon by the appellant helliprdquo So for the purpose of O 55 it would be inaccurate to say that the court is not confined to the issues raised by the parties on appeal
- Nevertheless I accept that because the appeal before me is by way of rehearing I am not confined to considering whether the rules of natural justice have been observed and whether the decision of the Board had been honestly reached
- Indeed in further submissions Mr Rai no longer submitted that the courtrsquos role in a statutory appeal was as limited as originally suggested He pointed out that in Fox v General Medical Council [1960] 1 WLR 1017 Lord Radcliffe said at 1022
- Their Lordships think therefore that it would be an undue limitation of their duty and powers in dealing with the statutory appeal to require no more for the upholding of a determination than observance of what are known as the rules of natural justice
- However Mr Rai submitted that the decision of the tribunal below should be given some measure of precedence For this proposition he cited the following from Lord Radcliffersquos judgment in Fox at 1020
- The appeal in this case lies as of right and by statute ndash see section 36 of the Medical Act 1956 The terms of the statute that confers the right do not limit or qualify the appeal in any way so that an appellant is entitled to claim that it is in a general sense nothing less than a re-hearing of his case and a review of the decision Nevertheless an appellate court works under certain limitations which are inherent in any appeal that does not take the form as this does not of starting the case all over again and hearing the witnesses afresh In the High Court where appeals to the Court of Appeal are by function by way of re-hearing there are well-recognised principles which give some measure of precedence to the decisions of the tribunal that has seen and heard the witnesses over what might otherwise be the view of the facts preferred by the appellate court which has only the record of the evidence to study
- I do not disagree that the decision below should be given some precedence provided that the courtrsquos wider role in an appeal is borne in mind
Mohammad Aziz bin Ibrahim v PKMS [2003] SGHC 28- The plaintiffs were members of the defendants a political party The defendants
wrote to the plaintiffs informing them of a decision of the defendantsrsquo Executive Council to terminate their membership The plaintiffs replied that they had not been given an opportunity to defend themselves The defendants did not reply and instead summoned the plaintiffs to appear in two days before the Disciplinary Committee to answer charges against them The plaintiffs protested the lack of time to prepare their defence and reiterated that they would not be able to attend the hearing given their prior commitments The defendantsrsquo Disciplinary Committee met in the plaintiffsrsquo absence and decided to terminate the membership of the plaintiffs The plaintiffs were then summoned to appear before the defendantsrsquo Supreme Council The plaintiffs protested that the summons contained no details as to the allegations against them The defendants did not respond and proceeded to meet in the plaintiffsrsquo absence They decided to expel the plaintiffs and informed the plaintiffs of their decision in
writing The plaintiffs applied to court to have their expulsion declared null and void and to obtain a declaration that they are still members of the defendants as there was a breach of the rules of natural justice
- Heldo (1) Before a member could be expelled from an association he must have
had notice of the charges of misconduct which justified the termination of his membership and must have been given an opportunity to be heard by an unbiased committee
o (2) As a general rule before a person goes before a Disciplinary Committee he must have been given sufficient time to effectively prepare his defence The plaintiffs were not given sufficient time to prepare their defence There was a breach of the rules of natural justice The defendantsrsquo Supreme Council should not have taken into account the recommendations of the Disciplinary Committee
o (3) A person must be given sufficient particulars of the charge against him The notice to appear before the defendantsrsquo Supreme Council did not contain sufficient particulars of the charges against the plaintiffs The defendantsrsquo Supreme Council breached the rules of natural justice when the plaintiffs were expelled in their absence
o (4) As a matter of construction the defendantsrsquo constitution did not require the plaintiffs to exhaust their internal remedies before instituting legal proceedings The plaintiffs would have had difficulties framing an appeal given that they did not have adequate notice of the charges against them The defendants had wrongly given them six days to appeal when the defendantsrsquo constitution did not restrict the right of appeal
o (5) As the expulsion of the plaintiffs was in breach of the rules of natural justice their expulsion was declared null and void
Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151- Facts- The appellant Dr Chia Yang Pong (ldquoDr Chiardquo) a medical doctor pleaded guilty to
80 charges of professional misconduct before a hearing of the Disciplinary Committee of the Singapore Medical Council (ldquoSMCrdquo) The Disciplinary Committee convicted him of all the charges under s 45(1)(d) of the Medical Registration Act (Cap 174 1998 Rev Ed) (ldquoMRArdquo) and ordered that his name be removed from the Register of Medical Practitioners and that he be fined $1000 per charge on 65 of the 80 charges amounting to a total fine of $65000 Dr Chia appealed against these orders contending that the sentence was manifestly excessive and that his name should not be removed from the Register of Medical Practitioners Dr Chia also asserted that if his name was to be removed from the Register of Medical Practitioners then the fine should not have been imposed on him as well Dr Chia further submitted that the fine of $65000 exceeded the limit permitted by s 45(2)(d) of the MRA which provides that the powers of a Disciplinary Committee include the imposition of a fine not exceeding $10000 Dr Chia submitted that the $10000 limit applied to the entire proceedings before a Disciplinary Committee regardless of the number of charges levelled against the medical practitioner The SMC contended that
where a medical practitioner faced multiple charges the Disciplinary Committee had the power to impose an unlimited fine so long as the Disciplinary Committee did not impose a fine of more than $1000 per charge
- Held allowing the appeal in part- The court would accept as final and conclusive the finding of a Disciplinary
Committee on any issue of medical ethics or standards of professional conduct unless it was unsafe unreasonable or contrary to evidence The Disciplinary Committeersquos findings that Dr Chia was guilty of professional misconduct could not be said to be unsafe unreasonable or contrary to evidence Neither was the court able to say that Dr Chiarsquos professional misconduct did not warrant the removal of his name from the Register of Medical Practitioners at [7] to [9]
- - comment it depends on what the relevant statute provides for Judicial rview is confined to reviewing whether the relevant auth have exceeded their auth under the sttute
Tan Eng Chye v The Director of Prisons [2004] 2 SLR 640- Facts- The applicant pleaded guilty to a charge of robbery under s 392 of the Penal Code
(Cap 224 1985 Rev Ed) (ldquoPCrdquo) The punishment included caning The trial judge was concerned whether caning should be ordered as he had been informed that the applicant suffered from Marfan Syndrome a congenital condition affecting the heart eyes and other parts of the body The district judge postponed sentencing and asked for a medical report to be produced The medical report submitted merely stated that the applicant was fit for caning There was no indication that the doctor had even addressed his mind to the applicantrsquos condition or referred to the applicantrsquos previous medical records The district judge sentenced the applicant to imprisonment for four years and six months and 12 strokes of the cane The present application for leave to apply for an order of certiorari was brought on the basis that the medical assessment conducted was not sufficiently thorough
- The respondent objected to the application on the grounds that- the application was premature because the applicant would be examined again on the
day scheduled for caning- the application could have no useful outcome- the application was improper and that- there were no grounds to justify a review- Held granting the application- The application was not premature as it would be too late to seek redress when the
plaintiff was examined on the date of caning at [21] to [22]- The application could have a useful outcome from a ruling on the proper form of
medical examination and assessment to be done at [25]- There was no procedural deficiency in the application and no failure of disclosure by
the applicant at [28] and [32]- The proper medical assessment to be made under s 232(1) CPC was a matter suitable
for judicial review at [38] and [49]- Review and conclusion
- Under the law an offender is to be caned for the offence he committed But the law is not without compassion and it provides that before anyone is caned he is to undergo medical examination to ensure that he will not suffer serious unintended injuries Only those found to be fit to undergo caning will be caned For those who are found not suitable the sentence of caning is not to be carried out
- The applicant has been sentenced to be caned He has a medical condition Caning may have serious effects on him The district judge who convicted him was concerned and called for a medical report One was produced to him but it was clearly unsatisfactory There is no indication that the medical officer had called for or considered the applicantrsquos medical records There is no indication that the medical officer made an assessment of the severity of the applicantrsquos condition Indeed there is no indication whether any thought has been given to the effects that caning can have on the applicant who has Marfan Syndrome
- The applicant wants his condition to be given proper consideration He produced medical reports of the effects that caning may have on him to show that there is substance in his concern
- The respondentrsquos response is that the applicant does not have any recourse because there is to be another examination done before caning is administered but it gives no assurance that the examination will be more thorough than the one done on 16 October 2003
- In these circumstances there is a clear issue to be determined ndash whether the protection offered in s 232 of the Criminal Procedure Code is satisfied by that type of minimal certification or whether it requires more to be done
- The respondent says that the applicant should be shut out and not allowed to proceed further on the ground that it is a groundless or hopeless case or a misguided or trivial complaint and a waste of the courtrsquos time
- In Lai Swee Lin Lindarsquos case the Court of Appeal adopted Lord Diplockrsquos statement in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409 that
- For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself ie that part of the common law that is given by lawyers the label of ldquothe prerogativerdquo
- By this test the medical assessment to be made in compliance with s 232(1) of the Criminal Procedure Code to ensure that an offender is sufficiently fit to be caned is susceptible to judicial review The application is not groundless hopeless misguided trivial or a waste of time
- I therefore gave the applicant leave to proceed The respondent still maintains that he should not be allowed to proceed and has appealed against my order
Tan Eng Chye v The Director of Prisons (No 2) [2004] 4 SLR 521 - Held dismissing the application- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law to make decisions that would lead to administrative action by an authority endowed with executive powers which would have consequences affecting some person In the instant case Dr Ooirsquos decision was not amenable to judicial review as the district court judge was duty bound to impose the sentence of caning irrespective of Dr Ooirsquos report The remedy in the event of any dissatisfaction with the district court judgersquos order lay in the appeal process at [7] and [8]
- Since this was not a judicial review case at all it would be a pointless and unwarranted exercise to ask whether Dr Ooi had acted reasonably in the Wednesbury sense Tan could not be allowed to attack Dr Ooirsquos report Otherwise any party who was unhappy with a trial judgersquos decision but who had no valid grounds of appeal would be tempted to attack the evidence of witnesses such as the psychiatric expert or prison doctor at [10] and [11]
- Against the background of these statutory provisions it is apparent that the applicantrsquos case that Dr Ooi Poh Hinrsquos certification ought to be quashed because he did not take into account matters in the Wednesbury sense (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) was misconceived The making of this application indicated that the applicant had laboured under the mistaken belief that every act or conduct of a public servant is justiciable by way of a judicial review In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Diplock held at 408 that
- The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ldquodecision-makerrdquo or else a refusal by him to make a decision
- To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker although it may affect him too It must affect such other person either
- by altering rights or obligations of that person which are enforceable by or against him in private law or
- by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do so until there has been communicated to him some rational grounds for withdrawing it on which he had been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn hellip
- Lord Diplock further amplified what he said above by holding that- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph
- The report by Dr Ooi was obviously a ldquodecisionrdquo but that alone did not make Dr Ooi a ldquodecision makerrdquo in the sense explained in the Lord Diplock judgment above The district court judge as I had said was duty bound to impose the sentence of caning irrespective of what Dr Ooi might have said in his report Dr Ooi was a public servant discharging what I might call a ldquonon-decision makingrdquo duty in the Diplock sense Further examples of non-decision making conduct include acts of police officers such as in the arrest of a person suspected of committing an offence Such decisions of an arresting officer are not amenable to judicial review The rights of the arrested person lie in the criminal as well as civil law ndash not in an administrative action A public officer performing such duties cannot be made accountable by way of judicial review because the law would have provided avenues for redress in the case of any error or wrongdoing on the part of the public officer Sometimes the redress might not be adequate or obtained in time but that does not detract from the schematic structure of the complainantrsquos legal remedies An arrested person might be freed or charged If he is charged he may defend himself at trial If he is found guilty he has his right of appeal The arresting officer cannot be made to account for his action as to whether he had exercised Wednesbury reasonableness in deciding to arrest a suspect Every public officer will have made numerous decisions on a daily basis They cannot all be accountable for each and every one of those decisions in an administrative action even if they affect another person or body of persons otherwise the entire apparatus of public service might cease to function Similarly a medical officer performing his duty in determining whether a prisoner is fit for caning is not a ldquodecision makerrdquo in the Diplock sense The substantive administrative action would have been the decision of the judge who ordered the caning The remedy in the case of any dissatisfaction with that order lies in the appeal process In the case of the medical officer reporting under a s 232 (1) situation the substantive administrative action or the Diplock ldquodecision makingrdquo function lies with the prison authority which may stop the caning If it does not exercise that function the remedy lies in an action against the prison authority for failing to discharge its statutory duty For these reasons the applicant had no merit in applying for leave to issue an application for an order of certiorari Accordingly this application before me must be dismissed
When may decisions not be reviewed- Cannot just file for JR must look to nature of decision
ndash Contractualndash Or sth tt SHLD be judicially reviewedndash Eg contract with PWD merely matter of contract
- 1048612 Look to the source of the power that is being challenged- 1048612 Instances where judicial review will NOT lie
ndash Person carrying out only a private duty Re Fong Thin Choondash Re Fong Thin Choo [1992] 1 SLR 120
- This was a case involving an application for an order of prohibition against the Director-General of Customs and Excise
- Held
- (1) DG was carrying out Public Duty - (2) S 27 GPA did not prevent a court from granting an order of
prohibition against public acts [State Counsel had argued that no prohibition was possible since it would be tantamount to granting an injunction against the govt which is prevented by s 27 GPA ndash argument rejected]
- (3) Scope of Review -- whether the DG in reaching his decision had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the statute he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider On the facts the DG had failed to consider the Applicantrsquos evidence Order of Prohibition granted [ie Wednesbury Unreasonableness]
- Even if it is a public authority may still be an issue of private and not public law such as contract
- If the applicant asserts rights which lie in private law rather than public law judicial review is not available
ndash Chan Mun Poy v DG of Telecommunications [installation of telephone line]
- Court held tt merely matter of contract - case involving installation of telephone line the applicant sought
an order of mandamus against the respondent to reinstall a telephone line Held that the rights and liabilities in this case arose out of the contract between the applicant and respondent and dismissed the application
ndash Exp Lavelle [employment at BBC]- BBC owned by state in past query was contract of emplyt ndash
cannot be judicially reviewed- ndash a case concerning employment at the BBC - Held that it concerned a contractual matter even though the BBC
was a public bodyndash Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
[employment by PSC]- CA held that this was a contractual relationship between PSC and
Linda Lai This was a case on employment by the PSC The Court rejected the arguments raised to bring it into ldquopublic lawrdquo arena (ie PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation)
- Linda loy in employ of PSC public servant instruction manual governing behaviour and discipline of public offiers throughout public service
- She argd tt this was matter for public law and tt JR shld be possible
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
- The courtrsquos role in the appeal- The Boardrsquos counsel Mr Devinder Rai initially argued that the courtrsquos role in the
appeal was limited to considering whether the rules of natural justice had been observed and whether the decision of the Board had been honestly reached A few cases were cited for this proposition However as the appellantsrsquo counsel Mr Quek Mong Hua rightly pointed out those cases involved applications seeking judicial review where there was no statutory right of appeal Here s 36 of the Act provides the appellants with a right to appeal to the High Court Order 55 r 1 of the Rules of Court (Cap 322 R 5 2004 Rev Ed) provides that the Order shall apply to every appeal which under any written law lies to the High Court from any court tribunal or person Order 55 r 2 provides that such an appeal ldquoshall be by way of rehearingrdquo
- Mr Quek relied on L P Thean Jrsquos judgment in Chew Kia Ngee v Singapore Society of Accountants [1988] SLR 999 where Thean J said at 1003 [8]
- Against that decision this appeal is now brought Under s 34(2) of the Act the procedure governing such an appeal is the same as that for appeals to the High Court from the decisions of District Courts in civil matters Like an appeal from the District Courts this appeal is in the nature of a re-hearing and the same principles apply as are applicable to an appeal to the High Court against the decision of the District Court
- Using the analogy of appeals from the district courts Mr Quek then further cited a passage from Singapore Civil Procedure 2003 (Sweet amp Maxwell Asia 2003) in respect of O 55D r 2 on the question of rehearing The passage cited was inaccurately set out in his further submissions and I set it out below
- 55D31 ldquoBy way of rehearingrdquo mdash This provision does not mean that the High Court hears the witnesses afresh The High Court reviews the whole of the evidence (so far as is relevant to the appeal) in the court below and the course of the trial The general practice is essentially a ldquorehearing on documentsrdquo in that the court sits to review the official transcript of the evidence the judgersquos notes and the grounds of his decision The court rehears counsel on the issues of fact or law or both which form the substance of the appeal The court is not confined to the issues raised by the parties on appeal and is not limited to making an order which should have been made by the court below but may consider any relevant facts which have occurred since the trial and may make such further or other orders as it deems fit according to the state of things at the time of the hearing of the appeal hellip
- It should be noted that the statute being considered in Chew Kia Ngee was the Accountants Act (Cap 2 1985 Rev Ed) and s 34(2) thereof states that the procedure governing appeals to the High Court ldquoshall be the same as for appeals to the High Court from decisions of District Courts in civil mattersrdquo On the other hand s 36(1) of the Act does not mention appeals from the district courts Accordingly one must be careful when citing Thean Jrsquos judgment on this point Fortunately the end result is the same because although s 36(1) of the Act does not mention appeals from the district courts O 55 rr 1 and 2 do provide that an appeal under any written law to the High Court shall be by way of rehearing as I have mentioned
- However one should also be careful about citing the above passage from the Singapore Civil Procedure 2003 in respect of O 55D r 2 because O 55D pertains to appeals from the subordinate courts and not appeals under any written law There is a separate order for the latter ie O 55 Order 55 r 5(3) states that ldquoExcept with the
leave of the Court hearing any such appeal no grounds other than those stated in the notice of motion hellip may be relied upon by the appellant helliprdquo So for the purpose of O 55 it would be inaccurate to say that the court is not confined to the issues raised by the parties on appeal
- Nevertheless I accept that because the appeal before me is by way of rehearing I am not confined to considering whether the rules of natural justice have been observed and whether the decision of the Board had been honestly reached
- Indeed in further submissions Mr Rai no longer submitted that the courtrsquos role in a statutory appeal was as limited as originally suggested He pointed out that in Fox v General Medical Council [1960] 1 WLR 1017 Lord Radcliffe said at 1022
- Their Lordships think therefore that it would be an undue limitation of their duty and powers in dealing with the statutory appeal to require no more for the upholding of a determination than observance of what are known as the rules of natural justice
- However Mr Rai submitted that the decision of the tribunal below should be given some measure of precedence For this proposition he cited the following from Lord Radcliffersquos judgment in Fox at 1020
- The appeal in this case lies as of right and by statute ndash see section 36 of the Medical Act 1956 The terms of the statute that confers the right do not limit or qualify the appeal in any way so that an appellant is entitled to claim that it is in a general sense nothing less than a re-hearing of his case and a review of the decision Nevertheless an appellate court works under certain limitations which are inherent in any appeal that does not take the form as this does not of starting the case all over again and hearing the witnesses afresh In the High Court where appeals to the Court of Appeal are by function by way of re-hearing there are well-recognised principles which give some measure of precedence to the decisions of the tribunal that has seen and heard the witnesses over what might otherwise be the view of the facts preferred by the appellate court which has only the record of the evidence to study
- I do not disagree that the decision below should be given some precedence provided that the courtrsquos wider role in an appeal is borne in mind
Mohammad Aziz bin Ibrahim v PKMS [2003] SGHC 28- The plaintiffs were members of the defendants a political party The defendants
wrote to the plaintiffs informing them of a decision of the defendantsrsquo Executive Council to terminate their membership The plaintiffs replied that they had not been given an opportunity to defend themselves The defendants did not reply and instead summoned the plaintiffs to appear in two days before the Disciplinary Committee to answer charges against them The plaintiffs protested the lack of time to prepare their defence and reiterated that they would not be able to attend the hearing given their prior commitments The defendantsrsquo Disciplinary Committee met in the plaintiffsrsquo absence and decided to terminate the membership of the plaintiffs The plaintiffs were then summoned to appear before the defendantsrsquo Supreme Council The plaintiffs protested that the summons contained no details as to the allegations against them The defendants did not respond and proceeded to meet in the plaintiffsrsquo absence They decided to expel the plaintiffs and informed the plaintiffs of their decision in
writing The plaintiffs applied to court to have their expulsion declared null and void and to obtain a declaration that they are still members of the defendants as there was a breach of the rules of natural justice
- Heldo (1) Before a member could be expelled from an association he must have
had notice of the charges of misconduct which justified the termination of his membership and must have been given an opportunity to be heard by an unbiased committee
o (2) As a general rule before a person goes before a Disciplinary Committee he must have been given sufficient time to effectively prepare his defence The plaintiffs were not given sufficient time to prepare their defence There was a breach of the rules of natural justice The defendantsrsquo Supreme Council should not have taken into account the recommendations of the Disciplinary Committee
o (3) A person must be given sufficient particulars of the charge against him The notice to appear before the defendantsrsquo Supreme Council did not contain sufficient particulars of the charges against the plaintiffs The defendantsrsquo Supreme Council breached the rules of natural justice when the plaintiffs were expelled in their absence
o (4) As a matter of construction the defendantsrsquo constitution did not require the plaintiffs to exhaust their internal remedies before instituting legal proceedings The plaintiffs would have had difficulties framing an appeal given that they did not have adequate notice of the charges against them The defendants had wrongly given them six days to appeal when the defendantsrsquo constitution did not restrict the right of appeal
o (5) As the expulsion of the plaintiffs was in breach of the rules of natural justice their expulsion was declared null and void
Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151- Facts- The appellant Dr Chia Yang Pong (ldquoDr Chiardquo) a medical doctor pleaded guilty to
80 charges of professional misconduct before a hearing of the Disciplinary Committee of the Singapore Medical Council (ldquoSMCrdquo) The Disciplinary Committee convicted him of all the charges under s 45(1)(d) of the Medical Registration Act (Cap 174 1998 Rev Ed) (ldquoMRArdquo) and ordered that his name be removed from the Register of Medical Practitioners and that he be fined $1000 per charge on 65 of the 80 charges amounting to a total fine of $65000 Dr Chia appealed against these orders contending that the sentence was manifestly excessive and that his name should not be removed from the Register of Medical Practitioners Dr Chia also asserted that if his name was to be removed from the Register of Medical Practitioners then the fine should not have been imposed on him as well Dr Chia further submitted that the fine of $65000 exceeded the limit permitted by s 45(2)(d) of the MRA which provides that the powers of a Disciplinary Committee include the imposition of a fine not exceeding $10000 Dr Chia submitted that the $10000 limit applied to the entire proceedings before a Disciplinary Committee regardless of the number of charges levelled against the medical practitioner The SMC contended that
where a medical practitioner faced multiple charges the Disciplinary Committee had the power to impose an unlimited fine so long as the Disciplinary Committee did not impose a fine of more than $1000 per charge
- Held allowing the appeal in part- The court would accept as final and conclusive the finding of a Disciplinary
Committee on any issue of medical ethics or standards of professional conduct unless it was unsafe unreasonable or contrary to evidence The Disciplinary Committeersquos findings that Dr Chia was guilty of professional misconduct could not be said to be unsafe unreasonable or contrary to evidence Neither was the court able to say that Dr Chiarsquos professional misconduct did not warrant the removal of his name from the Register of Medical Practitioners at [7] to [9]
- - comment it depends on what the relevant statute provides for Judicial rview is confined to reviewing whether the relevant auth have exceeded their auth under the sttute
Tan Eng Chye v The Director of Prisons [2004] 2 SLR 640- Facts- The applicant pleaded guilty to a charge of robbery under s 392 of the Penal Code
(Cap 224 1985 Rev Ed) (ldquoPCrdquo) The punishment included caning The trial judge was concerned whether caning should be ordered as he had been informed that the applicant suffered from Marfan Syndrome a congenital condition affecting the heart eyes and other parts of the body The district judge postponed sentencing and asked for a medical report to be produced The medical report submitted merely stated that the applicant was fit for caning There was no indication that the doctor had even addressed his mind to the applicantrsquos condition or referred to the applicantrsquos previous medical records The district judge sentenced the applicant to imprisonment for four years and six months and 12 strokes of the cane The present application for leave to apply for an order of certiorari was brought on the basis that the medical assessment conducted was not sufficiently thorough
- The respondent objected to the application on the grounds that- the application was premature because the applicant would be examined again on the
day scheduled for caning- the application could have no useful outcome- the application was improper and that- there were no grounds to justify a review- Held granting the application- The application was not premature as it would be too late to seek redress when the
plaintiff was examined on the date of caning at [21] to [22]- The application could have a useful outcome from a ruling on the proper form of
medical examination and assessment to be done at [25]- There was no procedural deficiency in the application and no failure of disclosure by
the applicant at [28] and [32]- The proper medical assessment to be made under s 232(1) CPC was a matter suitable
for judicial review at [38] and [49]- Review and conclusion
- Under the law an offender is to be caned for the offence he committed But the law is not without compassion and it provides that before anyone is caned he is to undergo medical examination to ensure that he will not suffer serious unintended injuries Only those found to be fit to undergo caning will be caned For those who are found not suitable the sentence of caning is not to be carried out
- The applicant has been sentenced to be caned He has a medical condition Caning may have serious effects on him The district judge who convicted him was concerned and called for a medical report One was produced to him but it was clearly unsatisfactory There is no indication that the medical officer had called for or considered the applicantrsquos medical records There is no indication that the medical officer made an assessment of the severity of the applicantrsquos condition Indeed there is no indication whether any thought has been given to the effects that caning can have on the applicant who has Marfan Syndrome
- The applicant wants his condition to be given proper consideration He produced medical reports of the effects that caning may have on him to show that there is substance in his concern
- The respondentrsquos response is that the applicant does not have any recourse because there is to be another examination done before caning is administered but it gives no assurance that the examination will be more thorough than the one done on 16 October 2003
- In these circumstances there is a clear issue to be determined ndash whether the protection offered in s 232 of the Criminal Procedure Code is satisfied by that type of minimal certification or whether it requires more to be done
- The respondent says that the applicant should be shut out and not allowed to proceed further on the ground that it is a groundless or hopeless case or a misguided or trivial complaint and a waste of the courtrsquos time
- In Lai Swee Lin Lindarsquos case the Court of Appeal adopted Lord Diplockrsquos statement in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409 that
- For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself ie that part of the common law that is given by lawyers the label of ldquothe prerogativerdquo
- By this test the medical assessment to be made in compliance with s 232(1) of the Criminal Procedure Code to ensure that an offender is sufficiently fit to be caned is susceptible to judicial review The application is not groundless hopeless misguided trivial or a waste of time
- I therefore gave the applicant leave to proceed The respondent still maintains that he should not be allowed to proceed and has appealed against my order
Tan Eng Chye v The Director of Prisons (No 2) [2004] 4 SLR 521 - Held dismissing the application- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law to make decisions that would lead to administrative action by an authority endowed with executive powers which would have consequences affecting some person In the instant case Dr Ooirsquos decision was not amenable to judicial review as the district court judge was duty bound to impose the sentence of caning irrespective of Dr Ooirsquos report The remedy in the event of any dissatisfaction with the district court judgersquos order lay in the appeal process at [7] and [8]
- Since this was not a judicial review case at all it would be a pointless and unwarranted exercise to ask whether Dr Ooi had acted reasonably in the Wednesbury sense Tan could not be allowed to attack Dr Ooirsquos report Otherwise any party who was unhappy with a trial judgersquos decision but who had no valid grounds of appeal would be tempted to attack the evidence of witnesses such as the psychiatric expert or prison doctor at [10] and [11]
- Against the background of these statutory provisions it is apparent that the applicantrsquos case that Dr Ooi Poh Hinrsquos certification ought to be quashed because he did not take into account matters in the Wednesbury sense (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) was misconceived The making of this application indicated that the applicant had laboured under the mistaken belief that every act or conduct of a public servant is justiciable by way of a judicial review In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Diplock held at 408 that
- The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ldquodecision-makerrdquo or else a refusal by him to make a decision
- To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker although it may affect him too It must affect such other person either
- by altering rights or obligations of that person which are enforceable by or against him in private law or
- by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do so until there has been communicated to him some rational grounds for withdrawing it on which he had been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn hellip
- Lord Diplock further amplified what he said above by holding that- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph
- The report by Dr Ooi was obviously a ldquodecisionrdquo but that alone did not make Dr Ooi a ldquodecision makerrdquo in the sense explained in the Lord Diplock judgment above The district court judge as I had said was duty bound to impose the sentence of caning irrespective of what Dr Ooi might have said in his report Dr Ooi was a public servant discharging what I might call a ldquonon-decision makingrdquo duty in the Diplock sense Further examples of non-decision making conduct include acts of police officers such as in the arrest of a person suspected of committing an offence Such decisions of an arresting officer are not amenable to judicial review The rights of the arrested person lie in the criminal as well as civil law ndash not in an administrative action A public officer performing such duties cannot be made accountable by way of judicial review because the law would have provided avenues for redress in the case of any error or wrongdoing on the part of the public officer Sometimes the redress might not be adequate or obtained in time but that does not detract from the schematic structure of the complainantrsquos legal remedies An arrested person might be freed or charged If he is charged he may defend himself at trial If he is found guilty he has his right of appeal The arresting officer cannot be made to account for his action as to whether he had exercised Wednesbury reasonableness in deciding to arrest a suspect Every public officer will have made numerous decisions on a daily basis They cannot all be accountable for each and every one of those decisions in an administrative action even if they affect another person or body of persons otherwise the entire apparatus of public service might cease to function Similarly a medical officer performing his duty in determining whether a prisoner is fit for caning is not a ldquodecision makerrdquo in the Diplock sense The substantive administrative action would have been the decision of the judge who ordered the caning The remedy in the case of any dissatisfaction with that order lies in the appeal process In the case of the medical officer reporting under a s 232 (1) situation the substantive administrative action or the Diplock ldquodecision makingrdquo function lies with the prison authority which may stop the caning If it does not exercise that function the remedy lies in an action against the prison authority for failing to discharge its statutory duty For these reasons the applicant had no merit in applying for leave to issue an application for an order of certiorari Accordingly this application before me must be dismissed
When may decisions not be reviewed- Cannot just file for JR must look to nature of decision
ndash Contractualndash Or sth tt SHLD be judicially reviewedndash Eg contract with PWD merely matter of contract
- 1048612 Look to the source of the power that is being challenged- 1048612 Instances where judicial review will NOT lie
ndash Person carrying out only a private duty Re Fong Thin Choondash Re Fong Thin Choo [1992] 1 SLR 120
- This was a case involving an application for an order of prohibition against the Director-General of Customs and Excise
- Held
- (1) DG was carrying out Public Duty - (2) S 27 GPA did not prevent a court from granting an order of
prohibition against public acts [State Counsel had argued that no prohibition was possible since it would be tantamount to granting an injunction against the govt which is prevented by s 27 GPA ndash argument rejected]
- (3) Scope of Review -- whether the DG in reaching his decision had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the statute he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider On the facts the DG had failed to consider the Applicantrsquos evidence Order of Prohibition granted [ie Wednesbury Unreasonableness]
- Even if it is a public authority may still be an issue of private and not public law such as contract
- If the applicant asserts rights which lie in private law rather than public law judicial review is not available
ndash Chan Mun Poy v DG of Telecommunications [installation of telephone line]
- Court held tt merely matter of contract - case involving installation of telephone line the applicant sought
an order of mandamus against the respondent to reinstall a telephone line Held that the rights and liabilities in this case arose out of the contract between the applicant and respondent and dismissed the application
ndash Exp Lavelle [employment at BBC]- BBC owned by state in past query was contract of emplyt ndash
cannot be judicially reviewed- ndash a case concerning employment at the BBC - Held that it concerned a contractual matter even though the BBC
was a public bodyndash Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
[employment by PSC]- CA held that this was a contractual relationship between PSC and
Linda Lai This was a case on employment by the PSC The Court rejected the arguments raised to bring it into ldquopublic lawrdquo arena (ie PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation)
- Linda loy in employ of PSC public servant instruction manual governing behaviour and discipline of public offiers throughout public service
- She argd tt this was matter for public law and tt JR shld be possible
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
leave of the Court hearing any such appeal no grounds other than those stated in the notice of motion hellip may be relied upon by the appellant helliprdquo So for the purpose of O 55 it would be inaccurate to say that the court is not confined to the issues raised by the parties on appeal
- Nevertheless I accept that because the appeal before me is by way of rehearing I am not confined to considering whether the rules of natural justice have been observed and whether the decision of the Board had been honestly reached
- Indeed in further submissions Mr Rai no longer submitted that the courtrsquos role in a statutory appeal was as limited as originally suggested He pointed out that in Fox v General Medical Council [1960] 1 WLR 1017 Lord Radcliffe said at 1022
- Their Lordships think therefore that it would be an undue limitation of their duty and powers in dealing with the statutory appeal to require no more for the upholding of a determination than observance of what are known as the rules of natural justice
- However Mr Rai submitted that the decision of the tribunal below should be given some measure of precedence For this proposition he cited the following from Lord Radcliffersquos judgment in Fox at 1020
- The appeal in this case lies as of right and by statute ndash see section 36 of the Medical Act 1956 The terms of the statute that confers the right do not limit or qualify the appeal in any way so that an appellant is entitled to claim that it is in a general sense nothing less than a re-hearing of his case and a review of the decision Nevertheless an appellate court works under certain limitations which are inherent in any appeal that does not take the form as this does not of starting the case all over again and hearing the witnesses afresh In the High Court where appeals to the Court of Appeal are by function by way of re-hearing there are well-recognised principles which give some measure of precedence to the decisions of the tribunal that has seen and heard the witnesses over what might otherwise be the view of the facts preferred by the appellate court which has only the record of the evidence to study
- I do not disagree that the decision below should be given some precedence provided that the courtrsquos wider role in an appeal is borne in mind
Mohammad Aziz bin Ibrahim v PKMS [2003] SGHC 28- The plaintiffs were members of the defendants a political party The defendants
wrote to the plaintiffs informing them of a decision of the defendantsrsquo Executive Council to terminate their membership The plaintiffs replied that they had not been given an opportunity to defend themselves The defendants did not reply and instead summoned the plaintiffs to appear in two days before the Disciplinary Committee to answer charges against them The plaintiffs protested the lack of time to prepare their defence and reiterated that they would not be able to attend the hearing given their prior commitments The defendantsrsquo Disciplinary Committee met in the plaintiffsrsquo absence and decided to terminate the membership of the plaintiffs The plaintiffs were then summoned to appear before the defendantsrsquo Supreme Council The plaintiffs protested that the summons contained no details as to the allegations against them The defendants did not respond and proceeded to meet in the plaintiffsrsquo absence They decided to expel the plaintiffs and informed the plaintiffs of their decision in
writing The plaintiffs applied to court to have their expulsion declared null and void and to obtain a declaration that they are still members of the defendants as there was a breach of the rules of natural justice
- Heldo (1) Before a member could be expelled from an association he must have
had notice of the charges of misconduct which justified the termination of his membership and must have been given an opportunity to be heard by an unbiased committee
o (2) As a general rule before a person goes before a Disciplinary Committee he must have been given sufficient time to effectively prepare his defence The plaintiffs were not given sufficient time to prepare their defence There was a breach of the rules of natural justice The defendantsrsquo Supreme Council should not have taken into account the recommendations of the Disciplinary Committee
o (3) A person must be given sufficient particulars of the charge against him The notice to appear before the defendantsrsquo Supreme Council did not contain sufficient particulars of the charges against the plaintiffs The defendantsrsquo Supreme Council breached the rules of natural justice when the plaintiffs were expelled in their absence
o (4) As a matter of construction the defendantsrsquo constitution did not require the plaintiffs to exhaust their internal remedies before instituting legal proceedings The plaintiffs would have had difficulties framing an appeal given that they did not have adequate notice of the charges against them The defendants had wrongly given them six days to appeal when the defendantsrsquo constitution did not restrict the right of appeal
o (5) As the expulsion of the plaintiffs was in breach of the rules of natural justice their expulsion was declared null and void
Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151- Facts- The appellant Dr Chia Yang Pong (ldquoDr Chiardquo) a medical doctor pleaded guilty to
80 charges of professional misconduct before a hearing of the Disciplinary Committee of the Singapore Medical Council (ldquoSMCrdquo) The Disciplinary Committee convicted him of all the charges under s 45(1)(d) of the Medical Registration Act (Cap 174 1998 Rev Ed) (ldquoMRArdquo) and ordered that his name be removed from the Register of Medical Practitioners and that he be fined $1000 per charge on 65 of the 80 charges amounting to a total fine of $65000 Dr Chia appealed against these orders contending that the sentence was manifestly excessive and that his name should not be removed from the Register of Medical Practitioners Dr Chia also asserted that if his name was to be removed from the Register of Medical Practitioners then the fine should not have been imposed on him as well Dr Chia further submitted that the fine of $65000 exceeded the limit permitted by s 45(2)(d) of the MRA which provides that the powers of a Disciplinary Committee include the imposition of a fine not exceeding $10000 Dr Chia submitted that the $10000 limit applied to the entire proceedings before a Disciplinary Committee regardless of the number of charges levelled against the medical practitioner The SMC contended that
where a medical practitioner faced multiple charges the Disciplinary Committee had the power to impose an unlimited fine so long as the Disciplinary Committee did not impose a fine of more than $1000 per charge
- Held allowing the appeal in part- The court would accept as final and conclusive the finding of a Disciplinary
Committee on any issue of medical ethics or standards of professional conduct unless it was unsafe unreasonable or contrary to evidence The Disciplinary Committeersquos findings that Dr Chia was guilty of professional misconduct could not be said to be unsafe unreasonable or contrary to evidence Neither was the court able to say that Dr Chiarsquos professional misconduct did not warrant the removal of his name from the Register of Medical Practitioners at [7] to [9]
- - comment it depends on what the relevant statute provides for Judicial rview is confined to reviewing whether the relevant auth have exceeded their auth under the sttute
Tan Eng Chye v The Director of Prisons [2004] 2 SLR 640- Facts- The applicant pleaded guilty to a charge of robbery under s 392 of the Penal Code
(Cap 224 1985 Rev Ed) (ldquoPCrdquo) The punishment included caning The trial judge was concerned whether caning should be ordered as he had been informed that the applicant suffered from Marfan Syndrome a congenital condition affecting the heart eyes and other parts of the body The district judge postponed sentencing and asked for a medical report to be produced The medical report submitted merely stated that the applicant was fit for caning There was no indication that the doctor had even addressed his mind to the applicantrsquos condition or referred to the applicantrsquos previous medical records The district judge sentenced the applicant to imprisonment for four years and six months and 12 strokes of the cane The present application for leave to apply for an order of certiorari was brought on the basis that the medical assessment conducted was not sufficiently thorough
- The respondent objected to the application on the grounds that- the application was premature because the applicant would be examined again on the
day scheduled for caning- the application could have no useful outcome- the application was improper and that- there were no grounds to justify a review- Held granting the application- The application was not premature as it would be too late to seek redress when the
plaintiff was examined on the date of caning at [21] to [22]- The application could have a useful outcome from a ruling on the proper form of
medical examination and assessment to be done at [25]- There was no procedural deficiency in the application and no failure of disclosure by
the applicant at [28] and [32]- The proper medical assessment to be made under s 232(1) CPC was a matter suitable
for judicial review at [38] and [49]- Review and conclusion
- Under the law an offender is to be caned for the offence he committed But the law is not without compassion and it provides that before anyone is caned he is to undergo medical examination to ensure that he will not suffer serious unintended injuries Only those found to be fit to undergo caning will be caned For those who are found not suitable the sentence of caning is not to be carried out
- The applicant has been sentenced to be caned He has a medical condition Caning may have serious effects on him The district judge who convicted him was concerned and called for a medical report One was produced to him but it was clearly unsatisfactory There is no indication that the medical officer had called for or considered the applicantrsquos medical records There is no indication that the medical officer made an assessment of the severity of the applicantrsquos condition Indeed there is no indication whether any thought has been given to the effects that caning can have on the applicant who has Marfan Syndrome
- The applicant wants his condition to be given proper consideration He produced medical reports of the effects that caning may have on him to show that there is substance in his concern
- The respondentrsquos response is that the applicant does not have any recourse because there is to be another examination done before caning is administered but it gives no assurance that the examination will be more thorough than the one done on 16 October 2003
- In these circumstances there is a clear issue to be determined ndash whether the protection offered in s 232 of the Criminal Procedure Code is satisfied by that type of minimal certification or whether it requires more to be done
- The respondent says that the applicant should be shut out and not allowed to proceed further on the ground that it is a groundless or hopeless case or a misguided or trivial complaint and a waste of the courtrsquos time
- In Lai Swee Lin Lindarsquos case the Court of Appeal adopted Lord Diplockrsquos statement in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409 that
- For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself ie that part of the common law that is given by lawyers the label of ldquothe prerogativerdquo
- By this test the medical assessment to be made in compliance with s 232(1) of the Criminal Procedure Code to ensure that an offender is sufficiently fit to be caned is susceptible to judicial review The application is not groundless hopeless misguided trivial or a waste of time
- I therefore gave the applicant leave to proceed The respondent still maintains that he should not be allowed to proceed and has appealed against my order
Tan Eng Chye v The Director of Prisons (No 2) [2004] 4 SLR 521 - Held dismissing the application- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law to make decisions that would lead to administrative action by an authority endowed with executive powers which would have consequences affecting some person In the instant case Dr Ooirsquos decision was not amenable to judicial review as the district court judge was duty bound to impose the sentence of caning irrespective of Dr Ooirsquos report The remedy in the event of any dissatisfaction with the district court judgersquos order lay in the appeal process at [7] and [8]
- Since this was not a judicial review case at all it would be a pointless and unwarranted exercise to ask whether Dr Ooi had acted reasonably in the Wednesbury sense Tan could not be allowed to attack Dr Ooirsquos report Otherwise any party who was unhappy with a trial judgersquos decision but who had no valid grounds of appeal would be tempted to attack the evidence of witnesses such as the psychiatric expert or prison doctor at [10] and [11]
- Against the background of these statutory provisions it is apparent that the applicantrsquos case that Dr Ooi Poh Hinrsquos certification ought to be quashed because he did not take into account matters in the Wednesbury sense (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) was misconceived The making of this application indicated that the applicant had laboured under the mistaken belief that every act or conduct of a public servant is justiciable by way of a judicial review In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Diplock held at 408 that
- The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ldquodecision-makerrdquo or else a refusal by him to make a decision
- To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker although it may affect him too It must affect such other person either
- by altering rights or obligations of that person which are enforceable by or against him in private law or
- by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do so until there has been communicated to him some rational grounds for withdrawing it on which he had been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn hellip
- Lord Diplock further amplified what he said above by holding that- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph
- The report by Dr Ooi was obviously a ldquodecisionrdquo but that alone did not make Dr Ooi a ldquodecision makerrdquo in the sense explained in the Lord Diplock judgment above The district court judge as I had said was duty bound to impose the sentence of caning irrespective of what Dr Ooi might have said in his report Dr Ooi was a public servant discharging what I might call a ldquonon-decision makingrdquo duty in the Diplock sense Further examples of non-decision making conduct include acts of police officers such as in the arrest of a person suspected of committing an offence Such decisions of an arresting officer are not amenable to judicial review The rights of the arrested person lie in the criminal as well as civil law ndash not in an administrative action A public officer performing such duties cannot be made accountable by way of judicial review because the law would have provided avenues for redress in the case of any error or wrongdoing on the part of the public officer Sometimes the redress might not be adequate or obtained in time but that does not detract from the schematic structure of the complainantrsquos legal remedies An arrested person might be freed or charged If he is charged he may defend himself at trial If he is found guilty he has his right of appeal The arresting officer cannot be made to account for his action as to whether he had exercised Wednesbury reasonableness in deciding to arrest a suspect Every public officer will have made numerous decisions on a daily basis They cannot all be accountable for each and every one of those decisions in an administrative action even if they affect another person or body of persons otherwise the entire apparatus of public service might cease to function Similarly a medical officer performing his duty in determining whether a prisoner is fit for caning is not a ldquodecision makerrdquo in the Diplock sense The substantive administrative action would have been the decision of the judge who ordered the caning The remedy in the case of any dissatisfaction with that order lies in the appeal process In the case of the medical officer reporting under a s 232 (1) situation the substantive administrative action or the Diplock ldquodecision makingrdquo function lies with the prison authority which may stop the caning If it does not exercise that function the remedy lies in an action against the prison authority for failing to discharge its statutory duty For these reasons the applicant had no merit in applying for leave to issue an application for an order of certiorari Accordingly this application before me must be dismissed
When may decisions not be reviewed- Cannot just file for JR must look to nature of decision
ndash Contractualndash Or sth tt SHLD be judicially reviewedndash Eg contract with PWD merely matter of contract
- 1048612 Look to the source of the power that is being challenged- 1048612 Instances where judicial review will NOT lie
ndash Person carrying out only a private duty Re Fong Thin Choondash Re Fong Thin Choo [1992] 1 SLR 120
- This was a case involving an application for an order of prohibition against the Director-General of Customs and Excise
- Held
- (1) DG was carrying out Public Duty - (2) S 27 GPA did not prevent a court from granting an order of
prohibition against public acts [State Counsel had argued that no prohibition was possible since it would be tantamount to granting an injunction against the govt which is prevented by s 27 GPA ndash argument rejected]
- (3) Scope of Review -- whether the DG in reaching his decision had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the statute he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider On the facts the DG had failed to consider the Applicantrsquos evidence Order of Prohibition granted [ie Wednesbury Unreasonableness]
- Even if it is a public authority may still be an issue of private and not public law such as contract
- If the applicant asserts rights which lie in private law rather than public law judicial review is not available
ndash Chan Mun Poy v DG of Telecommunications [installation of telephone line]
- Court held tt merely matter of contract - case involving installation of telephone line the applicant sought
an order of mandamus against the respondent to reinstall a telephone line Held that the rights and liabilities in this case arose out of the contract between the applicant and respondent and dismissed the application
ndash Exp Lavelle [employment at BBC]- BBC owned by state in past query was contract of emplyt ndash
cannot be judicially reviewed- ndash a case concerning employment at the BBC - Held that it concerned a contractual matter even though the BBC
was a public bodyndash Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
[employment by PSC]- CA held that this was a contractual relationship between PSC and
Linda Lai This was a case on employment by the PSC The Court rejected the arguments raised to bring it into ldquopublic lawrdquo arena (ie PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation)
- Linda loy in employ of PSC public servant instruction manual governing behaviour and discipline of public offiers throughout public service
- She argd tt this was matter for public law and tt JR shld be possible
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
writing The plaintiffs applied to court to have their expulsion declared null and void and to obtain a declaration that they are still members of the defendants as there was a breach of the rules of natural justice
- Heldo (1) Before a member could be expelled from an association he must have
had notice of the charges of misconduct which justified the termination of his membership and must have been given an opportunity to be heard by an unbiased committee
o (2) As a general rule before a person goes before a Disciplinary Committee he must have been given sufficient time to effectively prepare his defence The plaintiffs were not given sufficient time to prepare their defence There was a breach of the rules of natural justice The defendantsrsquo Supreme Council should not have taken into account the recommendations of the Disciplinary Committee
o (3) A person must be given sufficient particulars of the charge against him The notice to appear before the defendantsrsquo Supreme Council did not contain sufficient particulars of the charges against the plaintiffs The defendantsrsquo Supreme Council breached the rules of natural justice when the plaintiffs were expelled in their absence
o (4) As a matter of construction the defendantsrsquo constitution did not require the plaintiffs to exhaust their internal remedies before instituting legal proceedings The plaintiffs would have had difficulties framing an appeal given that they did not have adequate notice of the charges against them The defendants had wrongly given them six days to appeal when the defendantsrsquo constitution did not restrict the right of appeal
o (5) As the expulsion of the plaintiffs was in breach of the rules of natural justice their expulsion was declared null and void
Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151- Facts- The appellant Dr Chia Yang Pong (ldquoDr Chiardquo) a medical doctor pleaded guilty to
80 charges of professional misconduct before a hearing of the Disciplinary Committee of the Singapore Medical Council (ldquoSMCrdquo) The Disciplinary Committee convicted him of all the charges under s 45(1)(d) of the Medical Registration Act (Cap 174 1998 Rev Ed) (ldquoMRArdquo) and ordered that his name be removed from the Register of Medical Practitioners and that he be fined $1000 per charge on 65 of the 80 charges amounting to a total fine of $65000 Dr Chia appealed against these orders contending that the sentence was manifestly excessive and that his name should not be removed from the Register of Medical Practitioners Dr Chia also asserted that if his name was to be removed from the Register of Medical Practitioners then the fine should not have been imposed on him as well Dr Chia further submitted that the fine of $65000 exceeded the limit permitted by s 45(2)(d) of the MRA which provides that the powers of a Disciplinary Committee include the imposition of a fine not exceeding $10000 Dr Chia submitted that the $10000 limit applied to the entire proceedings before a Disciplinary Committee regardless of the number of charges levelled against the medical practitioner The SMC contended that
where a medical practitioner faced multiple charges the Disciplinary Committee had the power to impose an unlimited fine so long as the Disciplinary Committee did not impose a fine of more than $1000 per charge
- Held allowing the appeal in part- The court would accept as final and conclusive the finding of a Disciplinary
Committee on any issue of medical ethics or standards of professional conduct unless it was unsafe unreasonable or contrary to evidence The Disciplinary Committeersquos findings that Dr Chia was guilty of professional misconduct could not be said to be unsafe unreasonable or contrary to evidence Neither was the court able to say that Dr Chiarsquos professional misconduct did not warrant the removal of his name from the Register of Medical Practitioners at [7] to [9]
- - comment it depends on what the relevant statute provides for Judicial rview is confined to reviewing whether the relevant auth have exceeded their auth under the sttute
Tan Eng Chye v The Director of Prisons [2004] 2 SLR 640- Facts- The applicant pleaded guilty to a charge of robbery under s 392 of the Penal Code
(Cap 224 1985 Rev Ed) (ldquoPCrdquo) The punishment included caning The trial judge was concerned whether caning should be ordered as he had been informed that the applicant suffered from Marfan Syndrome a congenital condition affecting the heart eyes and other parts of the body The district judge postponed sentencing and asked for a medical report to be produced The medical report submitted merely stated that the applicant was fit for caning There was no indication that the doctor had even addressed his mind to the applicantrsquos condition or referred to the applicantrsquos previous medical records The district judge sentenced the applicant to imprisonment for four years and six months and 12 strokes of the cane The present application for leave to apply for an order of certiorari was brought on the basis that the medical assessment conducted was not sufficiently thorough
- The respondent objected to the application on the grounds that- the application was premature because the applicant would be examined again on the
day scheduled for caning- the application could have no useful outcome- the application was improper and that- there were no grounds to justify a review- Held granting the application- The application was not premature as it would be too late to seek redress when the
plaintiff was examined on the date of caning at [21] to [22]- The application could have a useful outcome from a ruling on the proper form of
medical examination and assessment to be done at [25]- There was no procedural deficiency in the application and no failure of disclosure by
the applicant at [28] and [32]- The proper medical assessment to be made under s 232(1) CPC was a matter suitable
for judicial review at [38] and [49]- Review and conclusion
- Under the law an offender is to be caned for the offence he committed But the law is not without compassion and it provides that before anyone is caned he is to undergo medical examination to ensure that he will not suffer serious unintended injuries Only those found to be fit to undergo caning will be caned For those who are found not suitable the sentence of caning is not to be carried out
- The applicant has been sentenced to be caned He has a medical condition Caning may have serious effects on him The district judge who convicted him was concerned and called for a medical report One was produced to him but it was clearly unsatisfactory There is no indication that the medical officer had called for or considered the applicantrsquos medical records There is no indication that the medical officer made an assessment of the severity of the applicantrsquos condition Indeed there is no indication whether any thought has been given to the effects that caning can have on the applicant who has Marfan Syndrome
- The applicant wants his condition to be given proper consideration He produced medical reports of the effects that caning may have on him to show that there is substance in his concern
- The respondentrsquos response is that the applicant does not have any recourse because there is to be another examination done before caning is administered but it gives no assurance that the examination will be more thorough than the one done on 16 October 2003
- In these circumstances there is a clear issue to be determined ndash whether the protection offered in s 232 of the Criminal Procedure Code is satisfied by that type of minimal certification or whether it requires more to be done
- The respondent says that the applicant should be shut out and not allowed to proceed further on the ground that it is a groundless or hopeless case or a misguided or trivial complaint and a waste of the courtrsquos time
- In Lai Swee Lin Lindarsquos case the Court of Appeal adopted Lord Diplockrsquos statement in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409 that
- For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself ie that part of the common law that is given by lawyers the label of ldquothe prerogativerdquo
- By this test the medical assessment to be made in compliance with s 232(1) of the Criminal Procedure Code to ensure that an offender is sufficiently fit to be caned is susceptible to judicial review The application is not groundless hopeless misguided trivial or a waste of time
- I therefore gave the applicant leave to proceed The respondent still maintains that he should not be allowed to proceed and has appealed against my order
Tan Eng Chye v The Director of Prisons (No 2) [2004] 4 SLR 521 - Held dismissing the application- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law to make decisions that would lead to administrative action by an authority endowed with executive powers which would have consequences affecting some person In the instant case Dr Ooirsquos decision was not amenable to judicial review as the district court judge was duty bound to impose the sentence of caning irrespective of Dr Ooirsquos report The remedy in the event of any dissatisfaction with the district court judgersquos order lay in the appeal process at [7] and [8]
- Since this was not a judicial review case at all it would be a pointless and unwarranted exercise to ask whether Dr Ooi had acted reasonably in the Wednesbury sense Tan could not be allowed to attack Dr Ooirsquos report Otherwise any party who was unhappy with a trial judgersquos decision but who had no valid grounds of appeal would be tempted to attack the evidence of witnesses such as the psychiatric expert or prison doctor at [10] and [11]
- Against the background of these statutory provisions it is apparent that the applicantrsquos case that Dr Ooi Poh Hinrsquos certification ought to be quashed because he did not take into account matters in the Wednesbury sense (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) was misconceived The making of this application indicated that the applicant had laboured under the mistaken belief that every act or conduct of a public servant is justiciable by way of a judicial review In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Diplock held at 408 that
- The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ldquodecision-makerrdquo or else a refusal by him to make a decision
- To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker although it may affect him too It must affect such other person either
- by altering rights or obligations of that person which are enforceable by or against him in private law or
- by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do so until there has been communicated to him some rational grounds for withdrawing it on which he had been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn hellip
- Lord Diplock further amplified what he said above by holding that- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph
- The report by Dr Ooi was obviously a ldquodecisionrdquo but that alone did not make Dr Ooi a ldquodecision makerrdquo in the sense explained in the Lord Diplock judgment above The district court judge as I had said was duty bound to impose the sentence of caning irrespective of what Dr Ooi might have said in his report Dr Ooi was a public servant discharging what I might call a ldquonon-decision makingrdquo duty in the Diplock sense Further examples of non-decision making conduct include acts of police officers such as in the arrest of a person suspected of committing an offence Such decisions of an arresting officer are not amenable to judicial review The rights of the arrested person lie in the criminal as well as civil law ndash not in an administrative action A public officer performing such duties cannot be made accountable by way of judicial review because the law would have provided avenues for redress in the case of any error or wrongdoing on the part of the public officer Sometimes the redress might not be adequate or obtained in time but that does not detract from the schematic structure of the complainantrsquos legal remedies An arrested person might be freed or charged If he is charged he may defend himself at trial If he is found guilty he has his right of appeal The arresting officer cannot be made to account for his action as to whether he had exercised Wednesbury reasonableness in deciding to arrest a suspect Every public officer will have made numerous decisions on a daily basis They cannot all be accountable for each and every one of those decisions in an administrative action even if they affect another person or body of persons otherwise the entire apparatus of public service might cease to function Similarly a medical officer performing his duty in determining whether a prisoner is fit for caning is not a ldquodecision makerrdquo in the Diplock sense The substantive administrative action would have been the decision of the judge who ordered the caning The remedy in the case of any dissatisfaction with that order lies in the appeal process In the case of the medical officer reporting under a s 232 (1) situation the substantive administrative action or the Diplock ldquodecision makingrdquo function lies with the prison authority which may stop the caning If it does not exercise that function the remedy lies in an action against the prison authority for failing to discharge its statutory duty For these reasons the applicant had no merit in applying for leave to issue an application for an order of certiorari Accordingly this application before me must be dismissed
When may decisions not be reviewed- Cannot just file for JR must look to nature of decision
ndash Contractualndash Or sth tt SHLD be judicially reviewedndash Eg contract with PWD merely matter of contract
- 1048612 Look to the source of the power that is being challenged- 1048612 Instances where judicial review will NOT lie
ndash Person carrying out only a private duty Re Fong Thin Choondash Re Fong Thin Choo [1992] 1 SLR 120
- This was a case involving an application for an order of prohibition against the Director-General of Customs and Excise
- Held
- (1) DG was carrying out Public Duty - (2) S 27 GPA did not prevent a court from granting an order of
prohibition against public acts [State Counsel had argued that no prohibition was possible since it would be tantamount to granting an injunction against the govt which is prevented by s 27 GPA ndash argument rejected]
- (3) Scope of Review -- whether the DG in reaching his decision had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the statute he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider On the facts the DG had failed to consider the Applicantrsquos evidence Order of Prohibition granted [ie Wednesbury Unreasonableness]
- Even if it is a public authority may still be an issue of private and not public law such as contract
- If the applicant asserts rights which lie in private law rather than public law judicial review is not available
ndash Chan Mun Poy v DG of Telecommunications [installation of telephone line]
- Court held tt merely matter of contract - case involving installation of telephone line the applicant sought
an order of mandamus against the respondent to reinstall a telephone line Held that the rights and liabilities in this case arose out of the contract between the applicant and respondent and dismissed the application
ndash Exp Lavelle [employment at BBC]- BBC owned by state in past query was contract of emplyt ndash
cannot be judicially reviewed- ndash a case concerning employment at the BBC - Held that it concerned a contractual matter even though the BBC
was a public bodyndash Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
[employment by PSC]- CA held that this was a contractual relationship between PSC and
Linda Lai This was a case on employment by the PSC The Court rejected the arguments raised to bring it into ldquopublic lawrdquo arena (ie PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation)
- Linda loy in employ of PSC public servant instruction manual governing behaviour and discipline of public offiers throughout public service
- She argd tt this was matter for public law and tt JR shld be possible
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
where a medical practitioner faced multiple charges the Disciplinary Committee had the power to impose an unlimited fine so long as the Disciplinary Committee did not impose a fine of more than $1000 per charge
- Held allowing the appeal in part- The court would accept as final and conclusive the finding of a Disciplinary
Committee on any issue of medical ethics or standards of professional conduct unless it was unsafe unreasonable or contrary to evidence The Disciplinary Committeersquos findings that Dr Chia was guilty of professional misconduct could not be said to be unsafe unreasonable or contrary to evidence Neither was the court able to say that Dr Chiarsquos professional misconduct did not warrant the removal of his name from the Register of Medical Practitioners at [7] to [9]
- - comment it depends on what the relevant statute provides for Judicial rview is confined to reviewing whether the relevant auth have exceeded their auth under the sttute
Tan Eng Chye v The Director of Prisons [2004] 2 SLR 640- Facts- The applicant pleaded guilty to a charge of robbery under s 392 of the Penal Code
(Cap 224 1985 Rev Ed) (ldquoPCrdquo) The punishment included caning The trial judge was concerned whether caning should be ordered as he had been informed that the applicant suffered from Marfan Syndrome a congenital condition affecting the heart eyes and other parts of the body The district judge postponed sentencing and asked for a medical report to be produced The medical report submitted merely stated that the applicant was fit for caning There was no indication that the doctor had even addressed his mind to the applicantrsquos condition or referred to the applicantrsquos previous medical records The district judge sentenced the applicant to imprisonment for four years and six months and 12 strokes of the cane The present application for leave to apply for an order of certiorari was brought on the basis that the medical assessment conducted was not sufficiently thorough
- The respondent objected to the application on the grounds that- the application was premature because the applicant would be examined again on the
day scheduled for caning- the application could have no useful outcome- the application was improper and that- there were no grounds to justify a review- Held granting the application- The application was not premature as it would be too late to seek redress when the
plaintiff was examined on the date of caning at [21] to [22]- The application could have a useful outcome from a ruling on the proper form of
medical examination and assessment to be done at [25]- There was no procedural deficiency in the application and no failure of disclosure by
the applicant at [28] and [32]- The proper medical assessment to be made under s 232(1) CPC was a matter suitable
for judicial review at [38] and [49]- Review and conclusion
- Under the law an offender is to be caned for the offence he committed But the law is not without compassion and it provides that before anyone is caned he is to undergo medical examination to ensure that he will not suffer serious unintended injuries Only those found to be fit to undergo caning will be caned For those who are found not suitable the sentence of caning is not to be carried out
- The applicant has been sentenced to be caned He has a medical condition Caning may have serious effects on him The district judge who convicted him was concerned and called for a medical report One was produced to him but it was clearly unsatisfactory There is no indication that the medical officer had called for or considered the applicantrsquos medical records There is no indication that the medical officer made an assessment of the severity of the applicantrsquos condition Indeed there is no indication whether any thought has been given to the effects that caning can have on the applicant who has Marfan Syndrome
- The applicant wants his condition to be given proper consideration He produced medical reports of the effects that caning may have on him to show that there is substance in his concern
- The respondentrsquos response is that the applicant does not have any recourse because there is to be another examination done before caning is administered but it gives no assurance that the examination will be more thorough than the one done on 16 October 2003
- In these circumstances there is a clear issue to be determined ndash whether the protection offered in s 232 of the Criminal Procedure Code is satisfied by that type of minimal certification or whether it requires more to be done
- The respondent says that the applicant should be shut out and not allowed to proceed further on the ground that it is a groundless or hopeless case or a misguided or trivial complaint and a waste of the courtrsquos time
- In Lai Swee Lin Lindarsquos case the Court of Appeal adopted Lord Diplockrsquos statement in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409 that
- For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself ie that part of the common law that is given by lawyers the label of ldquothe prerogativerdquo
- By this test the medical assessment to be made in compliance with s 232(1) of the Criminal Procedure Code to ensure that an offender is sufficiently fit to be caned is susceptible to judicial review The application is not groundless hopeless misguided trivial or a waste of time
- I therefore gave the applicant leave to proceed The respondent still maintains that he should not be allowed to proceed and has appealed against my order
Tan Eng Chye v The Director of Prisons (No 2) [2004] 4 SLR 521 - Held dismissing the application- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law to make decisions that would lead to administrative action by an authority endowed with executive powers which would have consequences affecting some person In the instant case Dr Ooirsquos decision was not amenable to judicial review as the district court judge was duty bound to impose the sentence of caning irrespective of Dr Ooirsquos report The remedy in the event of any dissatisfaction with the district court judgersquos order lay in the appeal process at [7] and [8]
- Since this was not a judicial review case at all it would be a pointless and unwarranted exercise to ask whether Dr Ooi had acted reasonably in the Wednesbury sense Tan could not be allowed to attack Dr Ooirsquos report Otherwise any party who was unhappy with a trial judgersquos decision but who had no valid grounds of appeal would be tempted to attack the evidence of witnesses such as the psychiatric expert or prison doctor at [10] and [11]
- Against the background of these statutory provisions it is apparent that the applicantrsquos case that Dr Ooi Poh Hinrsquos certification ought to be quashed because he did not take into account matters in the Wednesbury sense (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) was misconceived The making of this application indicated that the applicant had laboured under the mistaken belief that every act or conduct of a public servant is justiciable by way of a judicial review In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Diplock held at 408 that
- The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ldquodecision-makerrdquo or else a refusal by him to make a decision
- To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker although it may affect him too It must affect such other person either
- by altering rights or obligations of that person which are enforceable by or against him in private law or
- by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do so until there has been communicated to him some rational grounds for withdrawing it on which he had been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn hellip
- Lord Diplock further amplified what he said above by holding that- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph
- The report by Dr Ooi was obviously a ldquodecisionrdquo but that alone did not make Dr Ooi a ldquodecision makerrdquo in the sense explained in the Lord Diplock judgment above The district court judge as I had said was duty bound to impose the sentence of caning irrespective of what Dr Ooi might have said in his report Dr Ooi was a public servant discharging what I might call a ldquonon-decision makingrdquo duty in the Diplock sense Further examples of non-decision making conduct include acts of police officers such as in the arrest of a person suspected of committing an offence Such decisions of an arresting officer are not amenable to judicial review The rights of the arrested person lie in the criminal as well as civil law ndash not in an administrative action A public officer performing such duties cannot be made accountable by way of judicial review because the law would have provided avenues for redress in the case of any error or wrongdoing on the part of the public officer Sometimes the redress might not be adequate or obtained in time but that does not detract from the schematic structure of the complainantrsquos legal remedies An arrested person might be freed or charged If he is charged he may defend himself at trial If he is found guilty he has his right of appeal The arresting officer cannot be made to account for his action as to whether he had exercised Wednesbury reasonableness in deciding to arrest a suspect Every public officer will have made numerous decisions on a daily basis They cannot all be accountable for each and every one of those decisions in an administrative action even if they affect another person or body of persons otherwise the entire apparatus of public service might cease to function Similarly a medical officer performing his duty in determining whether a prisoner is fit for caning is not a ldquodecision makerrdquo in the Diplock sense The substantive administrative action would have been the decision of the judge who ordered the caning The remedy in the case of any dissatisfaction with that order lies in the appeal process In the case of the medical officer reporting under a s 232 (1) situation the substantive administrative action or the Diplock ldquodecision makingrdquo function lies with the prison authority which may stop the caning If it does not exercise that function the remedy lies in an action against the prison authority for failing to discharge its statutory duty For these reasons the applicant had no merit in applying for leave to issue an application for an order of certiorari Accordingly this application before me must be dismissed
When may decisions not be reviewed- Cannot just file for JR must look to nature of decision
ndash Contractualndash Or sth tt SHLD be judicially reviewedndash Eg contract with PWD merely matter of contract
- 1048612 Look to the source of the power that is being challenged- 1048612 Instances where judicial review will NOT lie
ndash Person carrying out only a private duty Re Fong Thin Choondash Re Fong Thin Choo [1992] 1 SLR 120
- This was a case involving an application for an order of prohibition against the Director-General of Customs and Excise
- Held
- (1) DG was carrying out Public Duty - (2) S 27 GPA did not prevent a court from granting an order of
prohibition against public acts [State Counsel had argued that no prohibition was possible since it would be tantamount to granting an injunction against the govt which is prevented by s 27 GPA ndash argument rejected]
- (3) Scope of Review -- whether the DG in reaching his decision had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the statute he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider On the facts the DG had failed to consider the Applicantrsquos evidence Order of Prohibition granted [ie Wednesbury Unreasonableness]
- Even if it is a public authority may still be an issue of private and not public law such as contract
- If the applicant asserts rights which lie in private law rather than public law judicial review is not available
ndash Chan Mun Poy v DG of Telecommunications [installation of telephone line]
- Court held tt merely matter of contract - case involving installation of telephone line the applicant sought
an order of mandamus against the respondent to reinstall a telephone line Held that the rights and liabilities in this case arose out of the contract between the applicant and respondent and dismissed the application
ndash Exp Lavelle [employment at BBC]- BBC owned by state in past query was contract of emplyt ndash
cannot be judicially reviewed- ndash a case concerning employment at the BBC - Held that it concerned a contractual matter even though the BBC
was a public bodyndash Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
[employment by PSC]- CA held that this was a contractual relationship between PSC and
Linda Lai This was a case on employment by the PSC The Court rejected the arguments raised to bring it into ldquopublic lawrdquo arena (ie PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation)
- Linda loy in employ of PSC public servant instruction manual governing behaviour and discipline of public offiers throughout public service
- She argd tt this was matter for public law and tt JR shld be possible
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
- Under the law an offender is to be caned for the offence he committed But the law is not without compassion and it provides that before anyone is caned he is to undergo medical examination to ensure that he will not suffer serious unintended injuries Only those found to be fit to undergo caning will be caned For those who are found not suitable the sentence of caning is not to be carried out
- The applicant has been sentenced to be caned He has a medical condition Caning may have serious effects on him The district judge who convicted him was concerned and called for a medical report One was produced to him but it was clearly unsatisfactory There is no indication that the medical officer had called for or considered the applicantrsquos medical records There is no indication that the medical officer made an assessment of the severity of the applicantrsquos condition Indeed there is no indication whether any thought has been given to the effects that caning can have on the applicant who has Marfan Syndrome
- The applicant wants his condition to be given proper consideration He produced medical reports of the effects that caning may have on him to show that there is substance in his concern
- The respondentrsquos response is that the applicant does not have any recourse because there is to be another examination done before caning is administered but it gives no assurance that the examination will be more thorough than the one done on 16 October 2003
- In these circumstances there is a clear issue to be determined ndash whether the protection offered in s 232 of the Criminal Procedure Code is satisfied by that type of minimal certification or whether it requires more to be done
- The respondent says that the applicant should be shut out and not allowed to proceed further on the ground that it is a groundless or hopeless case or a misguided or trivial complaint and a waste of the courtrsquos time
- In Lai Swee Lin Lindarsquos case the Court of Appeal adopted Lord Diplockrsquos statement in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409 that
- For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph The ultimate source of the decision-making power is nearly always nowadays a statute or subordinate legislation made under the statute but in the absence of any statute regulating the subject matter of the decision the source of the decision-making power may still be the common law itself ie that part of the common law that is given by lawyers the label of ldquothe prerogativerdquo
- By this test the medical assessment to be made in compliance with s 232(1) of the Criminal Procedure Code to ensure that an offender is sufficiently fit to be caned is susceptible to judicial review The application is not groundless hopeless misguided trivial or a waste of time
- I therefore gave the applicant leave to proceed The respondent still maintains that he should not be allowed to proceed and has appealed against my order
Tan Eng Chye v The Director of Prisons (No 2) [2004] 4 SLR 521 - Held dismissing the application- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law to make decisions that would lead to administrative action by an authority endowed with executive powers which would have consequences affecting some person In the instant case Dr Ooirsquos decision was not amenable to judicial review as the district court judge was duty bound to impose the sentence of caning irrespective of Dr Ooirsquos report The remedy in the event of any dissatisfaction with the district court judgersquos order lay in the appeal process at [7] and [8]
- Since this was not a judicial review case at all it would be a pointless and unwarranted exercise to ask whether Dr Ooi had acted reasonably in the Wednesbury sense Tan could not be allowed to attack Dr Ooirsquos report Otherwise any party who was unhappy with a trial judgersquos decision but who had no valid grounds of appeal would be tempted to attack the evidence of witnesses such as the psychiatric expert or prison doctor at [10] and [11]
- Against the background of these statutory provisions it is apparent that the applicantrsquos case that Dr Ooi Poh Hinrsquos certification ought to be quashed because he did not take into account matters in the Wednesbury sense (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) was misconceived The making of this application indicated that the applicant had laboured under the mistaken belief that every act or conduct of a public servant is justiciable by way of a judicial review In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Diplock held at 408 that
- The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ldquodecision-makerrdquo or else a refusal by him to make a decision
- To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker although it may affect him too It must affect such other person either
- by altering rights or obligations of that person which are enforceable by or against him in private law or
- by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do so until there has been communicated to him some rational grounds for withdrawing it on which he had been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn hellip
- Lord Diplock further amplified what he said above by holding that- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph
- The report by Dr Ooi was obviously a ldquodecisionrdquo but that alone did not make Dr Ooi a ldquodecision makerrdquo in the sense explained in the Lord Diplock judgment above The district court judge as I had said was duty bound to impose the sentence of caning irrespective of what Dr Ooi might have said in his report Dr Ooi was a public servant discharging what I might call a ldquonon-decision makingrdquo duty in the Diplock sense Further examples of non-decision making conduct include acts of police officers such as in the arrest of a person suspected of committing an offence Such decisions of an arresting officer are not amenable to judicial review The rights of the arrested person lie in the criminal as well as civil law ndash not in an administrative action A public officer performing such duties cannot be made accountable by way of judicial review because the law would have provided avenues for redress in the case of any error or wrongdoing on the part of the public officer Sometimes the redress might not be adequate or obtained in time but that does not detract from the schematic structure of the complainantrsquos legal remedies An arrested person might be freed or charged If he is charged he may defend himself at trial If he is found guilty he has his right of appeal The arresting officer cannot be made to account for his action as to whether he had exercised Wednesbury reasonableness in deciding to arrest a suspect Every public officer will have made numerous decisions on a daily basis They cannot all be accountable for each and every one of those decisions in an administrative action even if they affect another person or body of persons otherwise the entire apparatus of public service might cease to function Similarly a medical officer performing his duty in determining whether a prisoner is fit for caning is not a ldquodecision makerrdquo in the Diplock sense The substantive administrative action would have been the decision of the judge who ordered the caning The remedy in the case of any dissatisfaction with that order lies in the appeal process In the case of the medical officer reporting under a s 232 (1) situation the substantive administrative action or the Diplock ldquodecision makingrdquo function lies with the prison authority which may stop the caning If it does not exercise that function the remedy lies in an action against the prison authority for failing to discharge its statutory duty For these reasons the applicant had no merit in applying for leave to issue an application for an order of certiorari Accordingly this application before me must be dismissed
When may decisions not be reviewed- Cannot just file for JR must look to nature of decision
ndash Contractualndash Or sth tt SHLD be judicially reviewedndash Eg contract with PWD merely matter of contract
- 1048612 Look to the source of the power that is being challenged- 1048612 Instances where judicial review will NOT lie
ndash Person carrying out only a private duty Re Fong Thin Choondash Re Fong Thin Choo [1992] 1 SLR 120
- This was a case involving an application for an order of prohibition against the Director-General of Customs and Excise
- Held
- (1) DG was carrying out Public Duty - (2) S 27 GPA did not prevent a court from granting an order of
prohibition against public acts [State Counsel had argued that no prohibition was possible since it would be tantamount to granting an injunction against the govt which is prevented by s 27 GPA ndash argument rejected]
- (3) Scope of Review -- whether the DG in reaching his decision had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the statute he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider On the facts the DG had failed to consider the Applicantrsquos evidence Order of Prohibition granted [ie Wednesbury Unreasonableness]
- Even if it is a public authority may still be an issue of private and not public law such as contract
- If the applicant asserts rights which lie in private law rather than public law judicial review is not available
ndash Chan Mun Poy v DG of Telecommunications [installation of telephone line]
- Court held tt merely matter of contract - case involving installation of telephone line the applicant sought
an order of mandamus against the respondent to reinstall a telephone line Held that the rights and liabilities in this case arose out of the contract between the applicant and respondent and dismissed the application
ndash Exp Lavelle [employment at BBC]- BBC owned by state in past query was contract of emplyt ndash
cannot be judicially reviewed- ndash a case concerning employment at the BBC - Held that it concerned a contractual matter even though the BBC
was a public bodyndash Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
[employment by PSC]- CA held that this was a contractual relationship between PSC and
Linda Lai This was a case on employment by the PSC The Court rejected the arguments raised to bring it into ldquopublic lawrdquo arena (ie PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation)
- Linda loy in employ of PSC public servant instruction manual governing behaviour and discipline of public offiers throughout public service
- She argd tt this was matter for public law and tt JR shld be possible
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
Tan Eng Chye v The Director of Prisons (No 2) [2004] 4 SLR 521 - Held dismissing the application- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law to make decisions that would lead to administrative action by an authority endowed with executive powers which would have consequences affecting some person In the instant case Dr Ooirsquos decision was not amenable to judicial review as the district court judge was duty bound to impose the sentence of caning irrespective of Dr Ooirsquos report The remedy in the event of any dissatisfaction with the district court judgersquos order lay in the appeal process at [7] and [8]
- Since this was not a judicial review case at all it would be a pointless and unwarranted exercise to ask whether Dr Ooi had acted reasonably in the Wednesbury sense Tan could not be allowed to attack Dr Ooirsquos report Otherwise any party who was unhappy with a trial judgersquos decision but who had no valid grounds of appeal would be tempted to attack the evidence of witnesses such as the psychiatric expert or prison doctor at [10] and [11]
- Against the background of these statutory provisions it is apparent that the applicantrsquos case that Dr Ooi Poh Hinrsquos certification ought to be quashed because he did not take into account matters in the Wednesbury sense (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) was misconceived The making of this application indicated that the applicant had laboured under the mistaken belief that every act or conduct of a public servant is justiciable by way of a judicial review In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Diplock held at 408 that
- The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ldquodecision-makerrdquo or else a refusal by him to make a decision
- To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker although it may affect him too It must affect such other person either
- by altering rights or obligations of that person which are enforceable by or against him in private law or
- by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do so until there has been communicated to him some rational grounds for withdrawing it on which he had been given an opportunity to comment or (ii) he has received assurance from the decision-maker will not be withdrawn hellip
- Lord Diplock further amplified what he said above by holding that- For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law (and not merely as in arbitration by agreement between private parties) to make decisions that if validly made will lead to administrative action or abstention from action by an authority endowed by law with executive powers which have one or other of the consequences mentioned in the preceding paragraph
- The report by Dr Ooi was obviously a ldquodecisionrdquo but that alone did not make Dr Ooi a ldquodecision makerrdquo in the sense explained in the Lord Diplock judgment above The district court judge as I had said was duty bound to impose the sentence of caning irrespective of what Dr Ooi might have said in his report Dr Ooi was a public servant discharging what I might call a ldquonon-decision makingrdquo duty in the Diplock sense Further examples of non-decision making conduct include acts of police officers such as in the arrest of a person suspected of committing an offence Such decisions of an arresting officer are not amenable to judicial review The rights of the arrested person lie in the criminal as well as civil law ndash not in an administrative action A public officer performing such duties cannot be made accountable by way of judicial review because the law would have provided avenues for redress in the case of any error or wrongdoing on the part of the public officer Sometimes the redress might not be adequate or obtained in time but that does not detract from the schematic structure of the complainantrsquos legal remedies An arrested person might be freed or charged If he is charged he may defend himself at trial If he is found guilty he has his right of appeal The arresting officer cannot be made to account for his action as to whether he had exercised Wednesbury reasonableness in deciding to arrest a suspect Every public officer will have made numerous decisions on a daily basis They cannot all be accountable for each and every one of those decisions in an administrative action even if they affect another person or body of persons otherwise the entire apparatus of public service might cease to function Similarly a medical officer performing his duty in determining whether a prisoner is fit for caning is not a ldquodecision makerrdquo in the Diplock sense The substantive administrative action would have been the decision of the judge who ordered the caning The remedy in the case of any dissatisfaction with that order lies in the appeal process In the case of the medical officer reporting under a s 232 (1) situation the substantive administrative action or the Diplock ldquodecision makingrdquo function lies with the prison authority which may stop the caning If it does not exercise that function the remedy lies in an action against the prison authority for failing to discharge its statutory duty For these reasons the applicant had no merit in applying for leave to issue an application for an order of certiorari Accordingly this application before me must be dismissed
When may decisions not be reviewed- Cannot just file for JR must look to nature of decision
ndash Contractualndash Or sth tt SHLD be judicially reviewedndash Eg contract with PWD merely matter of contract
- 1048612 Look to the source of the power that is being challenged- 1048612 Instances where judicial review will NOT lie
ndash Person carrying out only a private duty Re Fong Thin Choondash Re Fong Thin Choo [1992] 1 SLR 120
- This was a case involving an application for an order of prohibition against the Director-General of Customs and Excise
- Held
- (1) DG was carrying out Public Duty - (2) S 27 GPA did not prevent a court from granting an order of
prohibition against public acts [State Counsel had argued that no prohibition was possible since it would be tantamount to granting an injunction against the govt which is prevented by s 27 GPA ndash argument rejected]
- (3) Scope of Review -- whether the DG in reaching his decision had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the statute he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider On the facts the DG had failed to consider the Applicantrsquos evidence Order of Prohibition granted [ie Wednesbury Unreasonableness]
- Even if it is a public authority may still be an issue of private and not public law such as contract
- If the applicant asserts rights which lie in private law rather than public law judicial review is not available
ndash Chan Mun Poy v DG of Telecommunications [installation of telephone line]
- Court held tt merely matter of contract - case involving installation of telephone line the applicant sought
an order of mandamus against the respondent to reinstall a telephone line Held that the rights and liabilities in this case arose out of the contract between the applicant and respondent and dismissed the application
ndash Exp Lavelle [employment at BBC]- BBC owned by state in past query was contract of emplyt ndash
cannot be judicially reviewed- ndash a case concerning employment at the BBC - Held that it concerned a contractual matter even though the BBC
was a public bodyndash Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
[employment by PSC]- CA held that this was a contractual relationship between PSC and
Linda Lai This was a case on employment by the PSC The Court rejected the arguments raised to bring it into ldquopublic lawrdquo arena (ie PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation)
- Linda loy in employ of PSC public servant instruction manual governing behaviour and discipline of public offiers throughout public service
- She argd tt this was matter for public law and tt JR shld be possible
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
- The report by Dr Ooi was obviously a ldquodecisionrdquo but that alone did not make Dr Ooi a ldquodecision makerrdquo in the sense explained in the Lord Diplock judgment above The district court judge as I had said was duty bound to impose the sentence of caning irrespective of what Dr Ooi might have said in his report Dr Ooi was a public servant discharging what I might call a ldquonon-decision makingrdquo duty in the Diplock sense Further examples of non-decision making conduct include acts of police officers such as in the arrest of a person suspected of committing an offence Such decisions of an arresting officer are not amenable to judicial review The rights of the arrested person lie in the criminal as well as civil law ndash not in an administrative action A public officer performing such duties cannot be made accountable by way of judicial review because the law would have provided avenues for redress in the case of any error or wrongdoing on the part of the public officer Sometimes the redress might not be adequate or obtained in time but that does not detract from the schematic structure of the complainantrsquos legal remedies An arrested person might be freed or charged If he is charged he may defend himself at trial If he is found guilty he has his right of appeal The arresting officer cannot be made to account for his action as to whether he had exercised Wednesbury reasonableness in deciding to arrest a suspect Every public officer will have made numerous decisions on a daily basis They cannot all be accountable for each and every one of those decisions in an administrative action even if they affect another person or body of persons otherwise the entire apparatus of public service might cease to function Similarly a medical officer performing his duty in determining whether a prisoner is fit for caning is not a ldquodecision makerrdquo in the Diplock sense The substantive administrative action would have been the decision of the judge who ordered the caning The remedy in the case of any dissatisfaction with that order lies in the appeal process In the case of the medical officer reporting under a s 232 (1) situation the substantive administrative action or the Diplock ldquodecision makingrdquo function lies with the prison authority which may stop the caning If it does not exercise that function the remedy lies in an action against the prison authority for failing to discharge its statutory duty For these reasons the applicant had no merit in applying for leave to issue an application for an order of certiorari Accordingly this application before me must be dismissed
When may decisions not be reviewed- Cannot just file for JR must look to nature of decision
ndash Contractualndash Or sth tt SHLD be judicially reviewedndash Eg contract with PWD merely matter of contract
- 1048612 Look to the source of the power that is being challenged- 1048612 Instances where judicial review will NOT lie
ndash Person carrying out only a private duty Re Fong Thin Choondash Re Fong Thin Choo [1992] 1 SLR 120
- This was a case involving an application for an order of prohibition against the Director-General of Customs and Excise
- Held
- (1) DG was carrying out Public Duty - (2) S 27 GPA did not prevent a court from granting an order of
prohibition against public acts [State Counsel had argued that no prohibition was possible since it would be tantamount to granting an injunction against the govt which is prevented by s 27 GPA ndash argument rejected]
- (3) Scope of Review -- whether the DG in reaching his decision had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the statute he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider On the facts the DG had failed to consider the Applicantrsquos evidence Order of Prohibition granted [ie Wednesbury Unreasonableness]
- Even if it is a public authority may still be an issue of private and not public law such as contract
- If the applicant asserts rights which lie in private law rather than public law judicial review is not available
ndash Chan Mun Poy v DG of Telecommunications [installation of telephone line]
- Court held tt merely matter of contract - case involving installation of telephone line the applicant sought
an order of mandamus against the respondent to reinstall a telephone line Held that the rights and liabilities in this case arose out of the contract between the applicant and respondent and dismissed the application
ndash Exp Lavelle [employment at BBC]- BBC owned by state in past query was contract of emplyt ndash
cannot be judicially reviewed- ndash a case concerning employment at the BBC - Held that it concerned a contractual matter even though the BBC
was a public bodyndash Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
[employment by PSC]- CA held that this was a contractual relationship between PSC and
Linda Lai This was a case on employment by the PSC The Court rejected the arguments raised to bring it into ldquopublic lawrdquo arena (ie PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation)
- Linda loy in employ of PSC public servant instruction manual governing behaviour and discipline of public offiers throughout public service
- She argd tt this was matter for public law and tt JR shld be possible
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
- (1) DG was carrying out Public Duty - (2) S 27 GPA did not prevent a court from granting an order of
prohibition against public acts [State Counsel had argued that no prohibition was possible since it would be tantamount to granting an injunction against the govt which is prevented by s 27 GPA ndash argument rejected]
- (3) Scope of Review -- whether the DG in reaching his decision had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the statute he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider On the facts the DG had failed to consider the Applicantrsquos evidence Order of Prohibition granted [ie Wednesbury Unreasonableness]
- Even if it is a public authority may still be an issue of private and not public law such as contract
- If the applicant asserts rights which lie in private law rather than public law judicial review is not available
ndash Chan Mun Poy v DG of Telecommunications [installation of telephone line]
- Court held tt merely matter of contract - case involving installation of telephone line the applicant sought
an order of mandamus against the respondent to reinstall a telephone line Held that the rights and liabilities in this case arose out of the contract between the applicant and respondent and dismissed the application
ndash Exp Lavelle [employment at BBC]- BBC owned by state in past query was contract of emplyt ndash
cannot be judicially reviewed- ndash a case concerning employment at the BBC - Held that it concerned a contractual matter even though the BBC
was a public bodyndash Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR 644
[employment by PSC]- CA held that this was a contractual relationship between PSC and
Linda Lai This was a case on employment by the PSC The Court rejected the arguments raised to bring it into ldquopublic lawrdquo arena (ie PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation)
- Linda loy in employ of PSC public servant instruction manual governing behaviour and discipline of public offiers throughout public service
- She argd tt this was matter for public law and tt JR shld be possible
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
- However CA held tt this was not the case - Letter of apptmetn issued constituted contract of service with govt- It contained terms and conds and this was the pri contractual doc tt
she shld be relying on- She qned exgtension of probationary period ndash this was purely
contractual- Provn of instruction manual not enacted under stat amendment not
stat in nature and discipline done in regard to tt but not stat- One test for deterinig whether it is susceptible to JR is source
of power being exercised in making that decision- Although boards tt deatl with promotion (appeals board and
senior personanel board) had powers their decisions in dealing with appeal by Linda Lai were taken pursuant to her terms of employment ie contractual rights
- These decisions not suscpetbiel to judicial review - Held to be contractual relationship between PSC and Linda Lai- Rejected arguments raised to bring it into lsquopublic lawrsquo arena ie
PSC was exercising statutory powers PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation
ndash Colin Chan v Mita [1996] 1 SLR 60- CA held that in spite of s 18(2) SCJA a Declaration could not be
granted under Order 53 ROC as it was not a ldquoPerogative Orderrsquo - Cases where a Declaration was granted were commenced by
ordinary originating process - Singaporersquos O 53 is based on the Old English O 53 And in the Old
English O 53 no declaration was ever granted in an application made under that order
- Hence there was no power under Order 53 ROC to grant a declaration or other ancillary reliefs in an application under O 53
- (affirmed Re Application by Dow Jones (Asia) Inc [1988] 1 MLJ 222 on this point
- 1048612 Payment is ex gratia- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal It is concerned only with the improprieties of the decision-making process
- (see Fong Tin Choo above too] - In the following case the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged- Seah Hong Say v HDB
ndash Minister issued press releases promising some amts to be given when acqg property
ndash When he got the payment it was less than what press released promisedndash Tried to suendash But by defn ex gratia so cannot sue for it
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
ndash The applicant claimed a cash grant in respect of building premises which had been compulsorily acquired by the government The claim brought in private law by writ of summons was based on a ministerial statement to the effect that a sole occupier was entitled to a certain amount
ndash CA held that as there had been no beach of the appellantrsquos private law rights there was no basis for an action founded on the writ process The court said that there was no tort or breach of contract or breach of statutory duty alleged against the HDB
ndash The Court considered whether judicial review was available in the circumstances of the case and pointed out that this remedy might have been available if the HDBrsquos decision-making process was being impugned As the appellant had not contended that this process had been carried out improperly there was no basis on which the court could grant any relief
- 1048612 Restricted by statutendash See compulsory acquisition powers of HDB ndash HDB Act s 56(5)
- lsquo decision of Minister shall be final and not open to review or challenge on any ground whatsoeverrsquo
ndash Such restriction not absolute ndash see Stansfield Business School v Ministry of Manpower [1999] 3 SLR 742
- This case involves a decision by MOM in relation to the Stansfield Business School Court held although the relevant legislation stated that the decision of the Minister was final and conclusive and could not be challenged this did not preclude the Court from ensuring that the principles of natural justices were adhered to The court held that there was a breach of natural justice and quashed the decision of MOM [There had been a number of procedural deficiencies and a failure to observe the rules of natural justice]
- Justice khoo ndash commission of ministry and manpower- Under EA s145 decision of inister shallbe final and ocnsluvei and
x challenged in any court commr made order against stansfield and minister dismissed appeal
- Decisions made perusuant to EA- Justie Khoo said however tt if process used is in breach of nat
justice s145 is not effective - Min tt govt dept can give someone is natural justice
Told of allegations Fair oppty to contradict allegations Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process ndash stansfield not told propery of complaint and had not reasonable oppty to present their caxse and no sigf pts were actually put to them
- Comment Court had power to review notwithstanding the statutory restriction the manner in which the decision had
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
been reached and not so much the correctness of the decision [In this case s 14(5) of the Employment Act which purported to exclude judicial review did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review- Compare- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
ndash On first time appealed ndash AG argd tt no leave to appealndash But allowed leave to appeal but at actual hearing of the appeal court held
tt this is not decision susceptible to appealndash Tan eng chye an accused and offence tt he had PG to was robbery ndash
mandatory caning of no less than 12 strokes Crim court usu imposes caning and then accused sent for a med exam if doctor feels tt ccused is not able to take caning for med reasons will send back to court and based on med report court will remnit sentence on caning
ndash In tan case counsel sought case tt client unsuited for canigndash Court persuaded to call for med report prior to impsing madnaotry termndash In med report doctor was doctor wee who merely stated tt tan is fit for
caningndash Caning then imposed ndash JR ndash applied Sought to argue tt this was a terse report doctor had failed to
take into acct real possib tt canig potentially dang this amted to unreaonableness in wedb=nesbury sense
ndash Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action
ndash In gthis case wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report
ndash Held tt doctor weersquos report did not matter ndash Not JR case at all so unreaosanble to ask whether he had acted reasonablyndash Accused x allowed to attack dr weersquos report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640- In exg discretion of court there may be diff
Procedure Order 53- The application for a prerogative order consists of 2 stages (1) the application for
leave to apply for the order (2) the substantive application itself
1st stage- 1048612 Leave necessary O 53 r 1(1)
ndash How to applyndash Ex parte OS with groundsndash Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be challenged]
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
- Order 53 rule 1(2) - How to apply Application for leave by ex parte originating summons
ndash The application must be supported by a statement setting out the name and description of the applicant the relief sought and the grounds on which it is sought and by affidavit to be filed when the application is made verifying the facts relied on
- Order 53 rule 1(3) ndash The applicant must give notice of the application for leave to the Attorney-General (AG may object) The applicant must serve the ex parte originating summons the statement and the affidavit no later than the preceding day (of the application) on the Attorney-Generalrsquos Chambers
- Order 53 rule 1(4) - The Judge in granting leave may ldquoimpose such terms as to costs and as to security as he thinks fitrdquo
- Order 53 rule 1(5) - The Judge may direct the grant of leave operates as a stay of proceedings in question until the determination of the application
- Order 53 rule 1(6) - No leave of court to be granted to apply for an order of certiorari to remove any judgment order conviction or other proceedings - unless application for leave was made within 3 months after the date of the proceedings
Test on application for leave- Court should not examine the merits of the matter- Chan Hiang Leng v MITA- PSC v Lai Swee Lin Linda
ndash Leave would be granted if there appeared to be a point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- The guiding principle ought to be that the applicants must show prima facie that the application is not frivolous or vexatious and that there is some substance in the grounds supporting the application
- Prima facie test to filter out groundless cases at an early stage- PSC v Lai Swee Lin Linda [2001] 1 SLR 644
ndash Leave would be granted if there appeared to be point which might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed Application is to filter out groundless cases at early stage to prevent waste of judicial time and protect public bodies from harassment
- Association of Bank Officers v Malayan Commercial Banks [1990] 3 SLR 228ndash In this case the appellants had applied to the High Court for leave to apply for
an order of certiorari to quash an award of the Industrial Court and for leave to apply for an order of mandamus against the Industrial Court The applications were dismissed in the High Court The appellants appealed
ndash Held allowing the appealndash (1)Leave to appeal for an order of certiorari ought to have been given in this
case The learned Judicial Commissioner in his grounds of judgment had gone further than the leave stage and embarked on substantial issues on merits This
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
was not the right approach when the application for leave to apply for an order of certiorari is made
ndash (2)The guiding principles ought to be that the applicants must show prima facie that the application is not frivolous or vexations and that there is some substance in the grounds supporting the application On the evidence in this case the appellants had prima facie an arguable case for the grant of the relief they sought
- Colin Chan v Mita [1996] 1 SLR 609ndash Appellants were ministers of a Christian denomination known as Jehovahrsquos
Witnesses (JW) The International Bible Students Association (IBSA) and Watch Tower Bible and Tract Society (WTBTS) were organisations under the ambit of the denomination By Order 179 of 1972 the Minister for Home Affairs deregistered the local chapter of the denomination the Singapore Congregation of Jehovahrsquos Witnesses (SCJW) At the same time by Order 123 of 1972 the Minister declared all publications of WTBTS to be prohibited publications By Order 40594 the respondent Minister for Information and the Arts prohibited the importation sale or distribution of publications of the IBSA The appellantsrsquo application for leave of court to apply for certiorari and a declaration that Order 40594 was invalid was refused and they appealed
ndash Heldndash (1) Lord Diplockrsquos passage on the test the court was to apply at the application
for leave stage in IRC v National Federation of Self-Employed appeared susceptible to two slightly different interpretations The first was that the court should quickly peruse the material put before it and consider whether such material disclosed what might on further consideration turn out to be an arguable case The second was that the applicant had to make out a prima facie case of reasonable suspicion Both tests presented a very low threshold and it was questionable whether there was really any difference in substance between the two hellip
ndash (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in lsquothe public interestrsquo and relating to lsquopublic orderrsquo Hence even if the appellants could muster all the evidence they could on this issue they would still not be able to mount an arguable case along these lines for the issue was not justiciable
ndash (3) Once it was accepted that matters of national security were not justiciable there was very little (if any) room left for any doctrine of proportionality (assuming it exists) to apply other than the well-established one of irrationality To apply any higher test than the Wednesbury test would necessarily involve the court in a decision on the merits This was precisely what the courts were not permitted to do for that would involve an usurpation of power and responsibility that rightly belonged to the Minister
ndash (4)For the appellants to show a prima facie case of reasonable suspicion or what might turn out to be an arguable case for judicial review it was not enough for them to show that the Minister might have used a sledgehammer to crack a nut when he issued Order 40594 The test for
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
irrationality was whether no reasonable minister would issue Order40594 The court was not prepared to say even accepting all that the appellants had said that Order 40594 was one which no reasonable minister would issue The appellantsrsquo case put at its highest was insufficient to show what might turn out to be an arguable case that the minister had acted irrationally when he issued Order 40594
ndash Comment The test is that of an Arguable Case [without going into the Substantial Merits]
- Other remedies available [Must you Exhaust all available remedies before applying for Judicial Review]
Kang Ngah Wei v Commander of Traffic Police [ 2002] 1 SLR 213 - The applicationrsquos licence was confiscated since she had epileptic fits Section 37(8) of
the RTA provided a mechanism to a person whose licence was revoked on ground of public safety for the return of licence This procedure was not relied on by the applicant Therefore it was difficult to seek judicial review Justice Tan Lee Meng held that leave should not be granted since the application was obviously groundless
Locus standi- Easy test- Sufficient interest Chan Hiang Leng v MITA- Held appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act- 1048612 Application for order- By motion in the OS in which leave was given 8 clear days- Notice served on all parties directly affected- Need affidavit with names and addresses of all persons who have been served If not
served but should have been served affid must state fact and reason- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has ldquosufficient interestrdquo in the matter This is apart from the test to be applied by the court on application for leave [ie that of an Arguable case ndashsee above]
- This requirement of ldquosufficient interestrdquo must be determined at the hearing of the application for leave rather than at the hearing of the substantive application It is a safeguard against the courts being flooded and public bodies being harassed by irresponsible applications
- Chan Hiang Leng Colin v MITA ndash Held Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being unconstitutional in lieu of Article 15 of the Republic of Singapore Constitution providing Freedom of Religion
ndash Despite the Jehovah Witnesses being deregistered as a society the applicants were not applying for JR as members of a banned group but rather in their capacity as Citizens If a constitutional guarantee is to
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
mean anything a citizen must have the right to complain to the courts if there has been a violation of it
ndash Hence the right of the applicants came from the right as citizens to profess practice and propagate his beliefs [irrespective of whether they were members of the IBSA ndash International Bible Students Association]
ndash It would be strange that the only party with capacity to challenge was the IBSA which was neither a citizen or resident of Singapore
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319ndash The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent Board of Film Censors in approving the film publicity material At the hearing the learned Senior Federal Counsel challenged the locus standi of the applicant in the present proceeding
ndash Heldndash (1)in order to have the locus standi to invoke the jurisdiction of judicial
review the applicant should claim if not a legal or equitable right a least a sufficient interest in respect of matter to be litigated The extent of sufficient interest depends on diverse variable factors such as the content and intent of the statute of which contravention is alleged the nature of the breaches of statutory power the specific circumstances of the case the nature and extent of the applicant`s interest or grievance and the nature and extent of the prejudice or injury suffered by him
ndash (2)this court was satisfied that (i) the applicant is a rate-payer (ii) he had contracted monogamous marriage and (iii) he strongly adheres to the sanctity of a monogamous marriage which has the backing of an Act of Parliament namely the Law Reform (Marriage and Divorce) Act 1976 The applicant therefore has a standing to challenge the decision of the second respondent and the endorsement of the said decision by the third respondent at least at this threshold stage of the application for leave
ndash (3)the opposition to the locus standi of the learned Senior Federal Counsel has no merit
1048612 Hearing- No grounds other than that set out in Statement r 3 though court may allow
amendment Order 53 rule 3- Any proper person not served but desires to oppose shall be heard order 53 r 4- Cross-examination- Ridge v Baldwin if justice of case requires - Re Singh Kalpanath allowed
- Facts he claimed tt chairman guilty of prejudice against ihm- Held grave injustice may have been caused otherwise There were 2 conflicting
accounts central to each partyrsquos case Whether bias can be established or not depends on their testimony as to bias Applicantrsquos career and integrity of the disciplinary tribunal were at stake Truth of witnessrsquo allegations of bias was central to Drsquos case
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
- Is Cross-examination allowedndash Cross-examination is generally not allowed in proceedings for judicial
review [Colin Chan v PP ] save for very special circumstances ndash [Note there is no express provision for cross-examination in judicial review
proceedings under Order 53 unlike in England] This restriction has the force of practice rather than law Its primary objective is to protect the integrity of the tribunal or authority concerned
ndash ldquoSpecial Circumstancesrdquo- Colin Chan v PP [1994] 3 SLR 662
ndash Adopted the Malaysian Position dispute of facts or other exceptional circumstances
ndash BUT the court may allow cross-examination if ldquojustice of case requiresrdquo [None in that case]
- The following case is a leading authority in Singapore on the principles governing the Courtrsquos discretion to allow cross-examination in judicial review proceedings The case stands for the proposition that the court will allow cross-examination in judicial review proceedings whenever it is in the interest of justice do to so
ndash Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on lsquoBiasrsquo too] ndash This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of misconduct The basis of the application was that the chairman of the disciplinary committee was biased Chan Sek Keong J held that this was an appropriate case for the chairman and the applicantrsquos counsel to be cross-examined
ndash Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairmanrsquos account of the case 2 conflicting accounts central to each partyrsquos case The applicantrsquos career and integrity of the disciplinary tribunal were at stake The truth of witnessesrsquo allegations of bias was central to defendantrsquos case
ndash Specifically the judge saidndash The nature of the disputes between CS and SS on the one hand and between
the applicant and CS on the other made this an appropriate case that CS submit to cross-examination The difference between the lsquoexceptional casersquo test and the lsquojustice of the casersquo test is not one of substance Grave injustice might have been caused the applicant if he were not allowed to test the truth of CSrsquos account of the conversations The truth of SSrsquos account was central to the applicantrsquos primary case just as much as the truth of CSrsquos account was central to his defence The objection if upheld would have resulted in a denial to the applicant of the natural justice which he alleged had already been denied him by CS Not only was the applicantrsquos career at stake but more importantly confidence in the integrity of the administration of justice by a disciplinary tribunal would have been diminished if CS had been immunized from cross-examination
ndash Comment Dispute as to facts and their importancerelevance to the case was the key here In Colin Chan v PP there no such dispute and there was no relevance
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
- Chiam See Tong v SDP [1994] 1 SLR 293o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party One of the issues that arose Was there a need to exhaust the internal remedy of a Party Congress before applying to Court given that such a congress was held once every 2 years by the SDPrsquos constitution
o Heldo (1) Case involved the question of whether rules of natural justice were
breached [no notice no time to frame defence no right to be heard bias prejudice] which were eminently a matter for the courts Party conference (ie the congress) was inappropriate to decide questions of this sort as the issue of rights and wrongs over the expulsion of a party member was likely to be decided based on different considerations than those taken into consideration by a court of law
o (2) The next party congress was more than 1 year away since one had already being held in Jan of this year Applicant argued that his seat in parliament was in jeopardy Needed to have his party status resolved expeditiously Court agreed JR
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was meaningless and not exhaustive
- Mathi Alegen so Gothendaraman v The Tamils Representative Council of Singapore [2004 case]
o Held that even if there is internal remedy it does not oust JR of court But court discourages the use of JR as a first resort It is a supervisory power
Scope of Review- Chng Suan Tze [1989] 1 MLJ 69- Scope of review depends whether case falls within the lsquoprecedent factrsquo category or
whether discretion has been conferred
1048612 Precedent fact category- Eg ndash lsquowhere X exists the Minister may helliprsquo - Courtrsquos role to ascertain first whether the precedent has been established on balance
of probabilities and then to review the decision on grounds of illegality irrationality or procedural impropriety
1048612 Discretion conferred- In sg usu discretion is conferred - Eg ndash lsquothe Minister if he is of the opinion hellip mayhelliprsquo- Scope of review limited to illegality irrationality and procedural impropriety- Chng Suan Tze -
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
ndash bull Illegalityndash bull Irrationalityndash bull Procedural improprietyndash - reasoanblenessndash Scope of review depends whether case falls within the ldquoprecedent factrdquo
category or whether discretion has been conferred Chng Suan Tze [1989] 1 MLJ 69
- Chee Siok Chin v MHAndash bull Proportionality not ground of reviewndash bull Reasonableness test
- Ng Hock Guan v Attorney ndashGeneral [2004] 1 SLR 415ndash Concern is not with evaluation of relative weight or probative value of
evidence but with ldquolegality fairness or propriety of the decision making processrdquo
ndash Police officer interviewing some Filipino accused personsndash They made allegations that police officer had bashed them up other
witneses not allowed in roomndash Discip body said tt all colleagues and might colludendash Court held tt insuff regard to fairness their evid shld have been tested
against evid of accusedndash Also med evid in tt case which was not testedndash Doctors not called during hearing contrary to fairness of proceedingsndash Police officer sentenced by internal disciplinary Committee Reviewing
officer conducted a trial-like procedure Doctors not called or cross-X said that witnesses were biased and would corroborate
ndash Lai Kew Chai J overturned decision on the grounds that (i) expert neutral not relied on (ii) other witnesses ignored and therefore IO was not reasonable to conclude and decision was not rational
ndash Comment affirms Colin Chan line of cases [Wednesbury Unreasonableness]
- For a cases where a ldquodiscretion is conferredrdquo or where there is ldquoProcedural improprietyrdquo there may or may no include a right to a hearing
o Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 Held that section 37(6) RTA did not require the traffic police to hold
an inquiry or oral hearing
Exampleshellip- Tribunal has miscontrued scope of its statutory power -
ndash Lim Teng Ee Joyce v SMC [2005] 3 SLR 709- Joyce lim faced three charges idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings acquitted her on third charge but made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
- Statute p0nly allows them to make cost order in context of finding but they acquitted her of third charge yet imposed on her full cost sof hearing 3 chargs
- Held tt imporer and set aside order powr to orer cost is limited to cases whjere there is fidin of guilt
- Court substituted order of costs for 13 order of costs since 3 charges
ndash Shorvon Simon v SMC [2006] 1 SLR 182- Simon shorvon censured and made seceral findings of guilt- Prior to discip committeeproceedings had complaints proced- SMc tried to get costs for getting up and complaitns proced- CA held tt this was improper ndash under statute can only get csots
relevant to discip proceedings- For earlier stage of complaints proced not sth tt cld be allowed and
outside scope of power delegated to them under statute- So costs made smaller
- Allegation of bias -ndash Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board
[2005] 4 SLR 604- lsquoreasonable suspicionrsquo of bias revealed by facts- or lsquoreal likelihoodrsquo of bias- court went on discourse on2 tests ndash but on pt of fact both grds are
the same thing ndash premised on obj basis- Both tests premised on lsquoobjective basisrsquo- It was said tt allegations are unfounded
- Allegation of error of law breach of natural justce -ndash Must be a material error an error that affected the decision itselfndash Regina v Hull University Visitor House of Lords [1993] AC 682ndash Principles aboved by justice prakash in PT Asuransi Jasa Indonesia v
Dexia Bank SA [2006] 1 SLR 197
Reliefs Are Discretionary- Conduct of applicant- Any non-disclosure- Delay- Alternative remedies not exhausted- Prejudice suffered- Third party interests- Example ndash if other remedies available -- Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213
ndash Commander took away kangrsquos driving license she asked for jr of decisionndash But in tt case commander had asked her to attend med exam tt she refusedndash Court held tt
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
ndash Section 37(8) of the Road Traffic Act provided a mechanism for a person whose licence was revoked on ground of public safety for the return of licence Procedure not used by plaintiff
ndash She shld have exhausted her avenues under act first
- But if remedy not easily available under statute JR may be allowed- Compare
ndash 1048612 Chiam See Tong v Singapore Democratic Partyndash 1048612 Mohammed Aziz bin Ibrahim v PKMS
- in context of political party suspended fr tt party- every pp has constitn which allows for party to do partr things- court held tt PKMS constitun did not req exhaustion of internal
remedies therefore can proceed with JRndash 1048612 Mathi Alegen so Gothendaraman v The Tamils Representative Council
of Singpoare
Reliefs Obtainable- In Singapore may only obtain the prerogative reliefs under Order 53- Chan Hiang Leng Colin v MITA
ndash No declaration injunction damagesndash O get this use Ronnie Chin procedure Normal proceudre
- Position in England is different because of reform in 1977 1981 ie declaration injn and damages can be obtained
ndash Cannot obtain declaration injunction or damages Such relief may be obtained in England The position in Singapore differs from that in England because of reform in 19771981 Chan Hiang Leng Colin v MITA
- Chan Hiang Leng Colin v MITAndash Held did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it had the power to grant one in an application under the Rules of Court O53
ndash O53 based on old English O53 and there was no power under that provision to grant a declaration
- Note Reliefs Are Discretionary The court will consider- Conduct of applicant- Any non-disclosure- Delay If delay is long court will decide you are not interested- Alternative remedies not exhausted- Prejudice suffered- Third party interests
Ng Hock Guan v Attorney-General [2004] 1 SLR 415- Facts- The plaintiff a senior investigation officer of the Anti-Vice Branch Criminal
Investigation Department (ldquoCIDrdquo) Singapore Police Force was charged under
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
s 27(1)(c) of the Police Force Act (Cap 235) for allegedly slapping three Filipina suspects They were subsequently examined by two doctors who found that they had facial injuries The doctors were of the opinion that the injuries were probably caused by slapping and unlikely to have been self-inflicted
- Disciplinary proceedings were instituted against the plaintiff The two doctors were not called to give evidence and hence not subject to cross-examination The plaintiff called Dr Teo Eng Swee in his defence Dr Teo opined that the medical findings did not support the opinion that the injuries were probably caused by slapping and that self-infliction could not be excluded based on the evidence The plaintiff also called as witnesses his colleagues and two independent Tagalog interpreters who were at the office at the material time His colleagues testified that they had not noticed any injuries on the Filipinas nor did they receive any complaints of slapping from them This was corroborated by the two interpreters
- The Authorised Officer having conducted the disciplinary hearing found the plaintiff guilty of the charges The Authorised Officer was satisfied that the Filipinas were truthful and found that he had to treat the testimonies of the colleagues of the plaintiff with caution as they would be naturally inclined to help a fellow officer He also found one of the interpreters to have lied to maintain her retainer as an interpreter with the CID
- The plaintiff was dismissed and was unsuccessful in his appeal to the Commissioner of Police The plaintiff took out an action for judicial review claiming for inter alia reinstatement and recovery of his salary and allowances from the date of the purported termination of employment
- Held granting the plaintiffrsquos claims- The function of a judicial review was to determine the legality fairness or propriety
of the decision-making process It was not the function of a court in a judicial review to consider the sufficiency of the evidence as long as there was evidence to support the verdict arrived at at [5]
- The reliefs claimed- In this action for judicial review the plaintiff claimed against the defendant for the
following reliefs- A declaration that the immediate dismissal purported to be effected on 19 September
2000 was illegal void and inoperative as well as ultra vires the Police Force Act Cap 235 and being in violation of the rules of natural justice
- A declaration that the plaintiff is to be reinstated as a Senior Staff Sergeant of the Singapore Police Force and consequently entitled to be remunerated as such and be entitled to such rights as to pension and other benefits as if he had retired on attaining the age of retirement
- Alternatively a declaration that the plaintiffrsquos employment was wrongfully terminated and for damages for wrongful termination
- Recovery of the plaintiffrsquos salary and allowances from the date of the purported termination of employment
- Conclusions- In the law of judicial review a few principles are well established First the court is
exercising its supervisory function and is not sitting in its appellate capacity during which there is a new trial except that there is no viva voce evidence taken once again
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
A court therefore does not come to findings of its own to replace those of the tribunal against the decision of which judicial review is sought Secondly the correctness or otherwise of a tribunalrsquos decision is not in issue That decision is left by the enabling legislation to a tribunal or a statutory person such as the Authorised Officer In Mohan Singh v AG [1987] 2 MLJ 595 I would like to think that I held the line rather firmly against judicial activism under the guise of judicial review
- In the context of this case I was very mindful that I was not concerned with the sufficiency of the evidence or the weight given to such evidence by the Authorised Officer
- I was here concerned with a review of the decision making process in general and in particular the approach adopted by the Authorised Officer in his articulated view that the police officers in question and Maricel the Tagalog interpreter were inclined or predisposed to perjure themselves just to cover up for their colleagues or as in the case Maricel the undisputable suggestion was that she had lied just to maintain her retainer as a Tagalog interpreter by the CID In other words she lied in order to remain in the good books of CID officers by covering up their unlawful acts
- The consequence of such an unfair approach is quite clear How is an anti-vice officer in a similar position as the plaintiff able to demonstrate his innocence and successfully defend himself against any unwarranted charge made against him by a group of suspects for vice activities or for living on the immoral earnings of prostitutes if the adjudicating officer starts off and always holds the view that colleagues would cover up for fellow colleagues and perjure themselves It must be quite evident that usually in the course of police interviews the witnesses who can give evidence for an interviewing or interrogating officer who is accused of assault or any other unlawful act are usually if not always colleagues
- It is not justifiable to say that these witnesses are fellow officers and colleagues who are not likely to testify against a fellow officer who is accused any more than it is to say that fellow suspects will give false evidence by covering for their fellow suspects
- A fortiori if a witness is independent such as Maricel it is not at all defensible to conclude by mere speculation that a witness would perjure just to retain her employment
- The mindset or mental predisposition of the Authorised Officer was also remarkable when he came to treat the evidence of the complainants and their witnesses All of them who had testified against the plaintiff except Maria were under investigation for prostitution or running a place of assignation Any tribunal should view their evidence with caution and with more caution when objectively ascertainable evidence are presented to rebut their collective oral evidence Whilst the Authorised Officerrsquos view that ldquothey (the Filipinas) were telling the truthrdquo should ordinarily be accorded great respect and weight in my judgment it had to be set aside if the view had been arrived at in a manner which effectively and in substance denied the plaintiff the right that evidence led in his defence should be fairly considered without taking into account wholly unproven proclivities on the part of police officers and on the part of for eg a Tagalog interpreter to cover up and perjure themselves just to save their colleagues from the law taking its course Dr Teorsquos evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16
- For these reasons I made the orders I did
Stage 2- Second Stage Application for the prerogative order Order 53 rule 2- ldquoEntered for Hearingrdquo - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
ndash In this case the sole question for decision arising out of a preliminary objection taken by the respondents concerned the meaning and ambit of the phrase entered for hearing in O 53 r 2 of RHC 1980 After leave has been granted the motion under O 53 r 2(2) must be entered for hearing within 14 days In this case the application for certiorari was fixed for hearing 52 days after leave was obtained
ndash Held for purposes of O 53 r 2(2)[Our O 53 r(2)] filing corresponds to entry so that there is sufficient compliance once the applicant files his application within 14 days after leave has been granted Alternatively if there has been a breach of O 53 r 2(2) by the Applicant the Court would regard its requirements as purely directory and therefore capable of being condoned under the provisions of O 2 r 1(1)
ndash The notice must be served on ldquoall parties directly affectedrdquo Affidavit of service or non-service
Appeal- Order 53 rule 7 ndash Where leave to apply for an order of mandamus prohibition or
certiorari has been refused by a Judge an application for such leave may be made to the Court of Appeal under Order 57 rule 16