22 Govt Proceedings And Judicial Review

22 Government Proceedings & Judicial Review PROCEEDINGS BY & AGAINST THE GOVERNMENT Rules apply to the government in the same way as suits against private persons, SUBJECT to: – 1. the Government Proceedings Act: s 18 GPA – 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. – Section 5 equates govt’s liability for acts and omissions of public officer with that of private principal for acts and omissions of agent. Liability of Government in tort. 5. 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 7 – No action except for breach of contract on account of anything done or omitted or refused to be done by government officer in ‘exercise of public duties’. – 4 specific categories listed – construction, maintenance of eg railways, roads bridges, schools, hospitals, public buildings, drainage works, rivers, waterways. (ie all public works – cannot take out action for such cases)

Savings of acts done in exercise of public duties. 7. —(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), “exercise of the public duties” includes — (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. -

Swee Hong Investment v Swee Hong Exim [1994] 3 SLR 320: – justice Michael Khoo – Limited ambit of s 7. Word ‘includes’ in s 7 read as ‘means and includes. – Ie exhaustive – Exception was therefore limited to the 4 specific categories listed in s 7. – In all other cases the government can be sued – Held: furnishing of answers to legal requisitions by the Development and Building Control Division of MND did not come within s 7. – 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 appearance/pleading against the government without leave: O73r7. see AG v Phang Fook Seng [1999] 3 SLR 641. – 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. – 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. – 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.

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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. 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] - Equity’s maxim of ‘equity looks on that as done which ought to be done’ not applicable here as it could not be exercised against a third party – i.e. 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 ‘state’ 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. – 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 13.1 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 13.2 No proceedings in rem against govt: s35, GPA

3. Parties s19 GPA Civil proceedings by the government may be commenced by the authorised government department or by AG. – In practice usu the AG does so 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). – But none of departments gazetted, so shld just commence against AG

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– O15 – can use AG to subtitute – But case struck out because no merits anyway Where instituted against the department, department may apply to substitute AG, or vice versa. 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 A legal officer may appear as advocate on behalf of government: s 24(1) GPA. 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. AG may retain advocate and solicitor to act: s 24(3) GPA. – Eg big cases, can retain senior counsel Service Order 73 rule 3 Service on solicitor or person acting as solicitor for department; if no solicitor or AG is a party, serve on the AG. 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 – only the HC has juris – 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 – 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 – 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 – 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. Cf. ‘private law remedies’: 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

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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 642 –  On the scope of the Court’s power under s 18(2) SCJA. – Effect: “It 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 it”. – (1) A court’s powers, when sitting as an appellate court, are necessarily limited to that of the subordinate court from which the appeal emanated. – (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. – (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 court’s competence in determining all the issues raised. This was, therefore, an appropriate case for the application of Lord Diplock’s second exception in O’Reilly 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 101 – can just file OS under ord civil proced – for such action can bring either in sub court or high court: Jurisdiction: Subordinate Courts and High Court – 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 – 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? Judicial functions, quasi-judicial functions, exercise of ‘prerogative powers’. See Ridge v Baldwin [1964] AC 40. Clubs, domestic tribunals – jurisdiction different. Role of court to ensure fairness of proceedings, not to assess evidence and result. Court should see that natural justice applied. – Note – must be inferior tribunal c.f court military appeal – 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) – The litigant sought judicial review of the Club’s decision on his golfing rights. Court held in favour of the club - Re Singh Kalpanath: Disciplinary Committee

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An application for the remedy of certiorari to quash the findings of a disciplinary committee on the basis of bias. Principles of natural justice Right to be heard by unbiased tribunal Right to have notice of charges of misconduct Right to be heard in answer to the charges Examples: Harun Mundir v SAAA: Singapore Amateur Athletics Assoc. Re Singh Kalpanath: Disciplinary Committee. A Kanesananthan v Singapore Ceylon Tamils’ Association: unincorporated association. Mohammed Aziz bin Ibrahim v PKMS: political party Shorvon v SMC: Singapore Medical Council Rehearing: some precedence accorded to tribunal of first instance – Ling Uk Choon v Public Accountants Board [2004] 3 SLR 517: Accountants Act – in isues of proff misconduct, tribunal has best knowledge to deal with such issues Where statute provides for appeal in relation to professional body’s findings: – Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151: Singapore Medical Council – 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 (“Ryoma”), their client, complained to the Public Accountants Board (“the Board”) that the appellants’ had refused to return certain documents belonging to Ryoma. An Inquiry Committee (“IC”) 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) (“the Act”). 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 $6,281 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].

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The court’s role in the appeal The Board’s counsel Mr Devinder Rai, initially argued that the court’s 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 appellants’ 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 “shall be by way of rehearing”. Mr Quek relied on L P Thean J’s 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 & 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: 55D/3/1 “By way of rehearing” — 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 “rehearing on documents” in that the court sits to review the official transcript of the evidence, the judge’s 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. … 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 “shall be the same as for appeals to the High Court from decisions of District Courts in civil matters”. 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 J’s 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, “Except with the

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leave of the Court hearing any such appeal, no grounds other than those stated in the notice of motion … may be relied upon by the appellant …”. 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 court’s 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 Radcliffe’s judgment in Fox at 1020: The appeal in this case lies as of right and by statute – 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 court’s 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 defendants’ 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 defendants’ Disciplinary Committee met in the plaintiffs’ absence and decided to terminate the membership of the plaintiffs. The plaintiffs were then summoned to appear before the defendants’ 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 plaintiffs’ absence. They decided to expel the plaintiffs, and informed the plaintiffs of their decision in writing.

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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. Held: o (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 defendants’ 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 defendants’ Supreme Council did not contain sufficient particulars of the charges against the plaintiffs. The defendants’ Supreme Council breached the rules of natural justice when the plaintiffs were expelled in their absence. o (4) As a matter of construction, the defendants’ 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 defendants’ 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 (“Dr Chia”), a medical doctor, pleaded guilty to 80 charges of professional misconduct before a hearing of the Disciplinary Committee of the Singapore Medical Council (“SMC”). The Disciplinary Committee convicted him of all the charges under s 45(1)(d) of the Medical Registration Act (Cap 174, 1998 Rev Ed) (“MRA”) and ordered that his name be removed from the Register of Medical Practitioners and that he be fined $1,000 per charge on 65 of the 80 charges amounting to a total fine of $65,000. 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 $65,000 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 $10,000. Dr Chia submitted that the $10,000 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,

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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 $1,000 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 Committee’s 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 Chia’s 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) (“PC”). 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 applicant’s condition or referred to the applicant’s 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

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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 applicant’s medical records. There is no indication that the medical officer made an assessment of the severity of the applicant’s 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 respondent’s 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 – 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 court’s time. In Lai Swee Lin Linda’s case, the Court of Appeal adopted Lord Diplock’s 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 “the prerogative.” 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 Ooi’s decision was not amenable to judicial review as the district court judge was duty bound to impose the sentence of caning irrespective of Dr Ooi’s report. The remedy in the event of any dissatisfaction with the district court judge’s 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 Ooi’s report. Otherwise, any party who was unhappy with a trial judge’s 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 applicant’s case that Dr Ooi Poh Hin’s 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 “decision-maker” 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 … - 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.

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The report by Dr Ooi was obviously a “decision” but that alone did not make Dr Ooi a “decision maker” 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 “non-decision making” 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 – 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 complainant’s 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 “decision maker” 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 “decision making” 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 – Contractual? – Or sth tt SHLD be judicially reviewed – Eg contract with PWD, merely matter of contract Look to the source of the power that is being challenged. Instances where judicial review will NOT lie: – Person carrying out only a private duty: Re Fong Thin Choo – 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:

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(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 – 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 Applicant’s evidence. Order of Prohibition granted. [i.e. 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. –

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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. Exp Lavelle. [employment at BBC] - BBC owned by state in past, query was contract of emplyt – cannot be judicially reviewed - – a case concerning employment at the BBC. - Held that it concerned a contractual matter, even though the BBC was a public body. 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 “public law” 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

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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 – 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 ‘public law’ arena, ie. PSC was exercising statutory powers, PSC was creature of statute or that employment contract underpinned by any statute or subsidiary legislation. 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 “Perogative Order’. - Cases where a Declaration was granted were commenced by ordinary originating process. - Singapore’s 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.

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 – Minister issued press releases promising some amts to be given when acqg property – When he got the payment, it was less than what press released promised – Tried to sue – But by defn, ex gratia so cannot sue for it

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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. CA held that as there had been no beach of the appellant’s 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. 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 HDB’s 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.

Restricted by statute – See compulsory acquisition powers of HDB – HDB Act s 56(5): - ‘,,, decision of Minister shall be final and not open to review or challenge on any ground whatsoever’. – Such restriction not absolute – 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 – commission of ministry and manpower - Under EA s14.5, 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, s14.5 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 – 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

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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 – On first time, appealed – AG argd tt no leave to appeal – But allowed leave to appeal but at actual hearing of the appeal, court held tt this is not decision susceptible to appeal – Tan eng chye an accused, and offence tt he had PG to was robbery – 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 – In tan case, counsel sought case tt client unsuited for canig – Court persuaded to call for med report prior to impsing madnaotry term – In med report, doctor was doctor wee who merely stated tt tan is fit for caning – Caning then imposed – JR – 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 – Choo held tt decision maker must be empowered to make law by public law tt wld lead to admin action – In gthis case, wees decision not amenable to judicial review because district judge duty bound to impose caning iresp of report – Held tt doctor wee’s report did not matter – Not JR case at all so unreaosanble to ask whether he had acted reasonably – Accused x allowed to attack dr wee’s 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 Leave necessary: O 53 r 1(1) – How to apply: – Ex parte OS with grounds – Notice to AG [AG may object] - Judge may direct application for leave operates as a stay [of the decision sought to be challenged].

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Order 53, rule 1(2) - How to apply? Application for leave by ex parte originating summons. – 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) – 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-General’s Chambers. Order 53, rule 1(4) - The Judge, in granting leave, may “impose such terms as to costs and as to security as he thinks fit”. 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 – 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 – 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 228 – 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 – Held, allowing the appeal: – (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

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was not the right approach when the application for leave to apply for an order of certiorari is made. – (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 609 – Appellants were ministers of a Christian denomination known as Jehovah’s 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 Jehovah’s Witnesses (SCJW). At the same time, by Order 123 of 1972, the Minister declared all publications of WTBTS to be prohibited publications. By Order 405/94, the respondent Minister for Information and the Arts prohibited the importation, sale or distribution of publications of the IBSA. The appellants’ application for leave of court to apply for certiorari and a declaration that Order 405/94 was invalid was refused, and they appealed. – Held: – (1) Lord Diplock’s 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….. – (2)A refusal to do National Service which was required by law was disruptive of the national ethos and was unquestionably a matter in ‘the public interest’ and relating to ‘public order’. 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 – (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 – (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 405/94. The test for

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irrationality was whether no reasonable minister would issue Order405/94. The court was not prepared to say, even accepting all that the appellants had said, that Order 405/94 was one which no reasonable minister would issue. The appellants’ 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 405/94 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 application’s 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. 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 “sufficient interest” in the matter. This is apart from the test to be applied by the court on application for leave [i.e. that of an Arguable case –see above] - This requirement of “sufficient interest” 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 – 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. – 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

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mean anything, a citizen must have the right to complain to the courts if there has been a violation of it. – 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 – International Bible Students Association]. – 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 319 – 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 – Held: – (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; – (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; – (3).the opposition to the locus standi of the learned Senior Federal Counsel has no merit 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 party’s case. Whether bias can be established or not depends on their testimony as to bias. Applicant’s career and integrity of the disciplinary tribunal were at stake. Truth of witness’ allegations of bias was central to D’s case.

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Is Cross-examination allowed? – Cross-examination is generally not allowed in proceedings for judicial review. [Colin Chan v PP ] save for very special circumstances. – [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. – “Special Circumstances”??? Colin Chan v PP [1994] 3 SLR 662 – Adopted the Malaysian Position  dispute of facts or other exceptional circumstances. – BUT: the court may allow cross-examination if “justice of case requires” [None in that case] The following case is a leading authority in Singapore on the principles governing the Court’s 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. – Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on ‘Bias’ too] – 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 applicant’s counsel to be crossexamined. – Held that grave injustice may be caused if the applicant was not allowed to test the truth of the chairman’s account of the case. 2 conflicting accounts central to each party’s case. The applicant’s career and integrity of the disciplinary tribunal were at stake. The truth of witnesses’ allegations of bias was central to defendant’s case. – Specifically the judge said: – 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 ‘exceptional case’ test and the ‘justice of the case’ test is not one of substance. Grave injustice might have been caused the applicant if he were not allowed to test the truth of CS’s account of the conversations. The truth of SS’s account was central to the applicant’s primary case just as much as the truth of CS’s 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 applicant’s 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. – Comment: Dispute as to facts and their importance/relevance to the case was the key here. In Colin Chan v PP, there no such dispute and there was no relevance!

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Chiam See Tong v SDP [1994] 1 SLR 293 o 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 SDP’s constitution? o Held: o (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 (i.e. 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 s/o 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 ‘precedent fact’ category; or whether discretion has been conferred -

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Precedent fact category: Eg – ‘where X exists, the Minister may …’ Court’s 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. Discretion conferred: In sg, usu discretion is conferred Eg – ‘the Minister, if he is of the opinion …, may…’ Scope of review limited to illegality, irrationality and procedural impropriety. Chng Suan Tze -

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• Illegality • Irrationality • Procedural impropriety : - reasoanbleness Scope of review depends whether case falls within the “precedent fact” category; or whether discretion has been conferred. Chng Suan Tze [1989] 1 MLJ 69 Chee Siok Chin v MHA – • Proportionality not ground of review – • Reasonableness test Ng Hock Guan v Attorney –General [2004] 1 SLR 415 – Concern is not with evaluation of relative weight or probative value of evidence, but with “legality, fairness or propriety of the decision making process” – Police officer interviewing some Filipino accused persons – They made allegations that police officer had bashed them up, other witneses not allowed in room – Discip body said tt all colleagues and might collude – Court held tt insuff regard to fairness; their evid shld have been tested against evid of accused – Also med evid in tt case which was not tested – Doctors not called during hearing, contrary to fairness of proceedings – 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. – 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. – Comment: affirms Colin Chan line of cases [Wednesbury Unreasonableness] For a cases where a “discretion is conferred” or where there is “Procedural impropriety”, 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.

Examples… - Tribunal has miscontrued scope of its statutory power – 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

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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 1/3 order of costs since 3 charges 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 – 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

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Allegation of bias – Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board [2005] 4 SLR 604 - ‘reasonable suspicion’ of bias revealed by facts - or ‘real likelihood’ of bias - court went on discourse on2 tests – but on pt of fact, both grds are the same thing – premised on obj basis\ - Both tests premised on ‘objective basis’? - It was said tt allegations are unfounded

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Allegation of error of law / breach of natural justce – Must be a material error, an error that affected the decision itself – Regina v Hull University Visitor, House of Lords [1993] AC 682 – 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 – if other remedies available - Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR 213 – Commander took away kang’s driving license, she asked for jr of decision – But in tt case commander had asked her to attend med exam tt she refused – Court held tt:

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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. She shld have exhausted her avenues under act first

But if remedy not easily available under statute, JR may be allowed: Compare: – Chiam See Tong v Singapore Democratic Party – 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 JR – Mathi Alegen s/o 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 – No declaration, injunction, damages. – 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 – 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 1977/1981: Chan Hiang Leng Colin v. MITA - Chan Hiang Leng Colin v MITA – 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. – 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 (“CID”), Singapore Police Force, was charged under

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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 plaintiff’s 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 plaintiff’s employment was wrongfully terminated and for damages for wrongful termination; Recovery of the plaintiff’s 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.

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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 tribunal’s 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 Officer’s view that “they (the Filipinas) were telling the truth” 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 Teo’s evidence was not accorded the importance as a result of the prejudicial view taken by the Authorised Officer.

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For these reasons, I made the orders I did.

Stage 2 - Second Stage: Application for the prerogative order: Order 53, rule 2 - “Entered for Hearing”??? - Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394 – 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 – 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). – The notice must be served on “all parties directly affected”. / Affidavit of service or non-service Appeal - Order 53, rule 7 – 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.