Administrative and Constitutional Law

Citation(2007) 8 SAL Ann Rev 1
Date01 December 2007
Published date01 December 2007

1.1 The main administrative law cases decided in 2007 involved challenges against the non-use or fettering of administrative discretion, and abuses of discretion on grounds of mala fides, irrationality and procedural impropriety. The decisions also addressed the intensity and grounds of judicial review to be applied to certain bodies such as the disciplinary committees of private social clubs, and the doctrine of justiciability or reviewability of executive decisions drawing from common law prerogative powers in relation to the conduct of foreign policy. The basis of the supervisory jurisdiction of the High Court was affirmed by the Court of Appeal in Ng Chye Huey v PP[2007] 2 SLR 106 as existing ‘historically at common law’ (at [53]), being inherent in nature (at [49]) and remaining ‘very much a part of our judicial system’ (at [53]).

1.2 In relation to constitutional law, the cases addressed the scope of executive and judicial power, the treatment of constitutional issues before the Subordinate Courts and the powers of legislative classification under the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) in various cases where claims were asserted to the effect that Arts 9, 11 and 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) were violated. Other cases related to the components of a right to a fair hearing, drawing from human rights norms, and the importance of developing a localised understanding of the scope of Art 14 free speech rights, in relation to political defamation.

Non-use or fettering of discretion

1.3 The rationale for conferring statutory discretion as opposed to a mandatory rule on an administrative official is to afford that official a measure of flexibility in addressing the facts of a particular matter. However, an aspect of the rule of law is that this exercise of discretionary power must not be arbitrary but restrained by the terms of the statutory

object and purpose. It is expected that the official will discharge the statutory responsibility of applying her own mind to the matter, as opposed to following the instructions of another or adopting another”s opinions wholesale. Not to exercise discretion, to be unduly influenced by or to simply adopt another administrative actor”s views would be grounds for judicial review on the basis that discretion has been fettered or unlawfully delegated to another.

1.4 The issue of whether an administrative official, the Registrar for Vehicles, fettered her discretionary powers conferred under the terms of the Road Traffic (Motor Vehicles, Registration and Licensing) Rules (Cap 276, R 5, 2004 Rev Ed) (‘the Rules’), arose in Komoco Motors Pte Ltd v Registrar of Vehicles[2007] 4 SLR 145. What was contested was whether the additional registration fee (‘ARF’) to be paid with respect to 17,448 motor cars was properly determined. The Registrar had been informed by Singapore Customs that in its estimation, Komoco, a car importer, had under-declared the open market value (‘OMV’) of the cars. The taxes levied on car importers when motor vehicles are registered under the Rules are based on a percentage of the value of the vehicle.

1.5 Subsequently, the Registrar came to the decision that the cars in question had been under-charged. Komoco challenged the Registrar”s decisions on two grounds: first, that the Registrar had fettered her discretion; in the alternative, that the Registrar had abrogated her responsibility under r 7(3) of the Rules to determine the OMV of imported cars. Rule 7(3) provides that for the relevant purposes, ‘the value of a motor vehicle shall be determined by that Registrar after making such enquiries, if any, as he thinks fit, and the decision of the Registrar shall be final’. The Registrar had adopted a general policy of using the OMV computed by the Singapore Customs to calculate the ARF (at [26]).

1.6 Komoco contended that ‘the Registrar depended entirely on Customs” assessment of the OMV and merely adopted the same without making any proper or further enquiries’ (at [17]). This was tantamount to a non-exercise of discretion. It was further argued that by refusing to deal with the exceptional circumstances of Komoco”s case, the Registrar had fettered her discretion. In both instances, it was alleged that the Registrar had either not exercised her discretion or insufficiently done so, in concluding that there had been an under-declaration.

1.7 The relevant approach towards ascertaining whether discretion had been fettered was to consider ‘whether a full and fair hearing was afforded to the applicant, and whether the authority thereafter gave proper consideration to the applicant”s case’ (at [54]).

1.8 Judith Prakash J held on the facts that the Registrar had fettered her discretion in relation to Komoco. However, this finding itself did not invalidate the policy, but only the decision taken in relation to Komoco itself (at [52]).

1.9 This is because the policy in question satisfied the requirements laid out by the learned judge in the earlier case of Lines International Holding (S) Pte Ltd v Singapore Tourist Promotion Board[1997] 2 SLR 584 which stipulated that four conditions have to be satisfied for a general policy adopted by an administrative authority to be valid. This includes the requirement that the policy must be well known; here, it was accepted that the method of how Customs calculated the OMV of a motor vehicle was well known (at [31]). Furthermore, the policy must not violate the Wednesbury standard (Associated Provincial Picture Houses Ltd v Wednesbury Corp[1948] 1 KB 223) of being ‘a decision so outrageous in its defiance of logic or accepted moral standards that no sensible person who thought about it could have made such a decision or if no reasonable person could have come to the decision’ (at [27]). From the reasons given, it was clear that the Registrar ‘had both practical and policy reasons for deciding to follow Customs” computation of the OMV’ (at [29]), such as the fact that this would lead to consistency between government agencies, which would promote the efficient allocation of public resources. This would enhance public confidence in the administration of Customs and in the Registrar, taking into account the fact that Customs possessed a comprehensive documentary system to compute OMVs (at [28]).

1.10 While an administrative authority is entitled to adopt a general policy to deal with cases coming before it, this could not be applied in so inflexible a manner as to ignore material circumstances which might justify treating an individual case as an exceptional one, in the sense of relaxing or changing policy: H Lavender and Son Ltd v Minister of Housing and Local Government[1970] 3 All ER 871 (at 879, [20]) and British Oxygen Co Ltd v Minister of Technology[1971] AC 610 (at [21]). Judicial intervention is warranted where the repository of discretionary power failed to exercise this discretion by following the instructions of another actor (at [19]).

1.11 In construing the word ‘determine’ in r 7(3), Prakash J held that this entailed a ‘deliberative process’ (at [22]) or ‘evaluative exercise’ (at [23]) which entailed the exercise of discretion by the Registrar, who was entitled to make such enquiries as she thought fit, rather than her merely having the final say as to the value to be used.

1.12 Prakash J emphasised it was important that the decision-maker should demonstrate preparedness to hear out individual cases and to treat them as exceptional ones where warranted. It was incumbent upon

the authority to ‘take time to hear an applicant”s case so that it may fairly determine whether an exception should be made’ (at [32]). While hearings need not be oral hearings, they could not be ‘merely pro forma’ (at [32]); at base, the applicant”s case should be fully heard out and it must have been genuinely considered in the sense that the authority must not be ‘resolved to dismiss the applicant”s case from the start’ (at [32]) nor adopt ‘a closed mind impervious to suggestion’ (at [41]).

1.13 On the facts, the learned judge found that a single two-hour hearing held on 10 March 2006 met the requirement of according a full hearing to Komoco who had been given ‘the opportunity to put forward its arguments to the Registrar for consideration’ (at [40]).

1.14 However, Prakash J did not find sufficient evidence to indicate that between the 10 March 2006 hearing and the 18 May 2006 meeting with Komoco, the Registrar had ‘actually given due consideration to the materials raised before her’. Prakash J noted that the mere ‘passing of time’ did not indicate ‘how the time was used’, in rejecting the Registrar”s assertion that the matter had been carefully considered, in a series of internal discussions, since it took her two months to issue her decision. What was lacking was the absence of documentation to support the Registrar”s claim that several internal meetings had been held between her and her senior officers to discuss Komoco”s case and its details (at [44]). There was, in other words, insufficient evidence to disabuse the allegation that the Registrar”s discretion had been fettered.

1.15 Given the dearth of evidence, the learned judge had to ‘draw inferences’ from the reasons the Registrar provided as the basis for her eventual decision. Prakash J held it was clear that the Registrar ‘was strongly influenced at all times’ by the fact that adopting Customs” valuation ‘was due to various policy considerations’ (at [46]).

1.16 This was inferred from the minutes of the March 2006 meeting provided by the Registrar which indicated the tenor of the Registrar”s response at the meeting with Komoco”s representatives which referenced the policy adopted since the 1960s in valuing vehicles (at [45]—[47]). Prakash J considered as an ‘afterthought’ (at [48]) a reason proffered by the Registrar in her affidavit relating to the guidelines on how...

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