Administrative and Constitutional Law
| Date | 01 December 2005 |
| Published date | 01 December 2005 |
| Author | THIO Li-ann BA (Oxford) (Hons), LLM (Harvard), PhD (Cambridge); Barrister (Gray’s Inn, UK); Professor, Faculty of Law, National University of Singapore. |
1.1 In the field of administrative law, the cases dealt with judicial review on both substantive and procedural grounds. Notably, proportionality was rejected as an applicable ground of judicial review and in relation to the rule against bias, there was some scholarly judicial exploration of the competing tests of bias, offered as a guide to the future development of the law by the highest court of the land.
1.2 A varied range of issues were addressed in the constitutional law cases decided in 2005, pertaining to the Art 9(3) right to counsel and the scope of freedom of expression and assembly under Art 14 of the Constitution of the Republic of Singapore (1999 Rev Ed). In this regard, the constitutionality of the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed), which regulates assemblies and public processes, was discussed. A landmark case brought under the Sedition Act (Cap 290, 1985 Rev Ed) saw the conviction, fine and imprisonment of two accused persons for posting racist comments on the Internet. In the context of Singapore, content-laden proscriptions of speech were upheld where these served public order interests, particularly in relation to the preservation of racial and religious harmony. There were also significant statements considering the weight of foreign case law in Singapore courts, with the continued rejection of case law which was oriented towards the expansion of rights.
1.3 A core justification for the exercise of judicial review is to ensure that statutory bodies act within the confines of their allocated powers, given that such bodies do not possess inherent jurisdiction. In other words, an exercise of power must be shown to be expressly authorised.
1.4 In two cases relating to the Singapore Medical Council (‘SMC’), orders of costs made against practitioners found guilty of professional misconduct were found to have exceeded the statutory ambit of conferred powers. Under s 45(4) of the Medical Registration Act (Cap 174, 2004 Rev Ed) (‘MRA’), the Disciplinary Committee (‘DC’) constituted under the MRA to serve as a fact-finding tribunal is tasked with determining wrongdoing and to punish those found guilty of wrongdoing. It is empowered under s 45(4) of the MRA to require a registered medical practitioner (‘RMP’) to pay ‘such sums as it thinks fit in respect of costs and expenses’. An RMP has a right of appeal under s 46(7) of the MRA, even if this relates only to costs, and to challenge a decision of the DC before a High Court of three judges as the final decision-making body, sitting as an appellate tribunal.
1.5 In Lim Teng Ee Joyce v Singapore Medical Council[2005] 3 SLR 709, the High Court found that an order of the DC that the appellant should pay the full costs of a three-day hearing was incorrect and contrary to principle. Three charges of professional misconduct had been made against the appellant, a dermatologist. The first two, which she pleaded guilty to, were that of improperly delegating to her nurse the administration of laser treatment for facial acne. The last one related to the improper management of the treatment of her patient through the prescription of laser treatment. The majority of the three-day hearing was spent on this latter charge, which the DC had acquitted the appellant of.
1.6 The High Court rejected the argument of the SMC that it had ‘unfettered discretion’ to order costs under s 45(4) of the MRA (at [15]), bearing in mind that while the appellant was not guilty of the third charge, she had committed ‘errors of judgment’ and kept less than ideal records of her case notes (at [20] and [25]). The High Court held that the power under s 45(4) to order costs was not to be read in isolation but against the relevant statutory backdrop, specifically, s 45(1). This indicated that the powers set out in s 45(2) could be exercised by the DC where the RMP was found guilty of professional misconduct or specified infractions. It affirmed (at [15]) the seminal Court of Appeal decision in Chng Suan Tze v Minister of Home Affairs[1988] SLR 132 at 156, [86] to the effect that ‘[t]he notion of a completely subjective or unfettered discretion is contrary to the rule of law’. The High Court stated (ibid) that it would be ‘inconsistent with principle’ and ‘contrary to the notion of fairness’ for the DC to punish the RMP with having to pay the SMC full costs, where the RMP was exonerated of the
charges preferred against her. Thus, an appellate tribunal is entitled to interfere with a costs order where it is manifestly wrong or was exercised on wrong principles (at [16]). In apportioning costs and holding that the appellant should only bear one-third of the costs and expenses incurred by the SMC, the High Court was fortified by reference (at [22], [23] and [24]) to the decisions of the New Brunswick Court of Appeal in Hasan v College of Physicians and Surgeons of New Brunswick(1994) 152 NBR (2d) 230, the Court of Appeal of New South Wales in Ohn v Walton(1995) 36 NSWLR 77 and the Administrative Court of the Queen”s Bench Division in Gage v General Chiropractic Council[2004] EWHC 2762. The appellant was not asking for an indemnification of costs but only that the costs incurred by the SMC in relation to the unsubstantiated charge should not be wholly borne by her (at [26]). Following the Australian decision of Beard v Wilde(1985) 41 SASR 226, the insufficiency of notes taken did not relate to the charge of unprofessional conduct and thus could not be a relevant factor or by itself constitute a special reason to affect the order of costs. In taking into account and expressing disapproval of the bad note-keeping on the part of the RMP when making the costs order, the SMC had effectively taken into account an irrelevant or extraneous consideration and acted ultra vires.
1.7 Similarly, the DC under the MRA committed an error of law in misconstruing the scope of its statutory powers to order costs. In Shorvon Simon v Singapore Medical Council[2006] 1 SLR 182, the Court of Appeal allowed an appeal against the decision of the High Court judge. This related to a direction by the DC that the appellant, who was found guilty of professional misconduct, should pay costs, some of which were incurred not before the DC but at an earlier stage of the disciplinary proceedings conducted before the Complaints Committee (‘CC’). The Court of Appeal agreed with the High Court that disciplinary proceedings constitute a ‘hybrid category’ (at [16]) and it could not be assumed beforehand that such proceedings were ‘relaxed and casual as opposed to the formality and rigour of court proceedings’ (at [17]). Nevertheless, it found that the statutory power to direct payment of costs was exceeded, observing that the power to impose costs was ‘neither a subjective nor an unfettered statutory licence to make arbitrary orders of costs and/or expenses’ (at [25]).
1.8 The terms of the power to order costs were to be construed strictly, given that such power had a punitive dimension, and in accordance with its statutory formulation. Section 45(4) of the MRA conditions the power of the DC to order an offending practitioner to pay the Medical Council ‘such sums as it thinks fit in respect of … and incidental to any proceedings before the [DC]’. The Court of Appeal found that it would be ‘conferring undue
elasticity’ to the statutory term ‘incidental’, whose ordinary meaning was ‘accompanying’ or ‘attendant’, to stretch it ‘to embrace the work done earlier for the purposes of the CC enquiry’ (at [26]). What had to be shown was a ‘direct and apparently immediate nexus to the relevant proceedings’ (at [28]), which was not available on the facts. As the earlier stages of the disciplinary proceedings were ‘disparate’, the DC could not in the absence of express authorisation ‘recover by a side wind costs incurred’ prior to the DC stage, under cover of the term ‘incidental’ (at [29]). To do so would be to commit an illegality in misconstruing the scope of statutory powers.
1.9 A challenge before a Valuation Review Board that a decision of the Chief Assessor under the Property Tax Act (Cap 254, 2005 Rev Ed) to amalgamate tax accounts so as to deny the appellant the benefit of remissions was ‘unreasonable, arbitrary and irrational’ was rejected in Aspinden Holdings Ltd v Chief Assessor[2005] SGVRB 2 at [103]. This was because the contention rested on ‘bare speculation at best’ (at [100]) and failed to rebut the presumption of regularity of official acts. Thus, imputations of improper motive must have an evidential basis to succeed, as bare assertions will not suffice.
1.10 In Chee Siok Chin v Minister for Home Affairs[2006] 1 SLR 582 (‘Chee Siok Chin’), the issue was whether a police officer had exceeded his power under the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) (‘MOA’) in ordering a group of four peaceful protestors to disperse on the basis that they had allegedly committed a public nuisance. V K Rajah J noted that Parliament had conferred upon the police discretion which had to be exercised to advance legislative policies; the exercise of such discretion could be reviewed on the Council of Civil Service Unions v Minister for the Civil Service[1985] AC 374 (‘the GCHQ case’) grounds of review. The relevant power here was that under s 40 of the MOA to arrest without warrant, which involved a deprivation of a person”s constitutional right to liberty.
1.11 Rajah J in Chee Siok Chin expressly rejected proportionality as a ground of review, stating that this had never been part of the common law nor Singapore law (at [87]). He stressed that judicial review was confined only to the decision-making process and not the merits of the case, noting academic commentary that the...
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