AG v Mah Kiat Seng

• Jurisdiction: Singapore
• Judgment Date: 12 September 2013
• Date: 12 September 2013
• Docket Number: Originating Summons No 334 of 2012
• Court: High Court (Singapore)

Attorney-General

Plaintiff

and

Mah Kiat Seng

Defendant

[2013] SGHC 172

Lee Seiu Kin J

Originating Summons No 334 of 2012

High Court

Courts and Jurisdiction—Vexatious litigants—Court's power under s 74 (1) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) to order that a person not be permitted to institute legal proceedings except with leave of High Court—Meaning of words ‘vexatious’, ‘habitually’ and ‘persistently’—Defendant seeking to overturn criminal conviction affirmed by High Court in defendant's Magistrate's Appeal—Defendant failing to obtain leave to refer questions of law to Court of Appeal—Defendant applying to review Magistrate's Appeal decision—Defendant applying to review decision not to review Magistrate's Appeal decision—Whether defendant ‘habitually’ and ‘persistently’ instituted ‘vexatious’ legal proceedings—Whether court should exercise its discretion to order that defendant not be permitted to institute further legal proceedings in respect of his criminal conviction except with leave of High Court—Section 74 (1) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

This was the Attorney-General's application under s 74 (1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (‘the SCJA’) for an order that the defendant not be permitted, except with leave of the High Court, to institute any further legal proceedings in respect of his criminal conviction in District Arrest Case No 62538 of 2009 (‘DAC 62538/2009’).

In DAC 62538/2009, the defendant was convicted on two charges under the Registration of Criminals Act (Cap 268, 1985 Rev Ed) and fined $500 on each charge. The defendant appealed against both convictions in Magistrate's Appeal No 184 of 2010, which was heard before Choo Han Teck J in the High Court. Choo J allowed the appeal against one of the convictions but upheld the other conviction, which was for refusing to submit to the taking of finger impressions and photographs when lawfully required by an authorised police officer.

Dissatisfied that this conviction was upheld, the defendant applied to the High Court by way of Criminal Motion No 42 of 2010 for leave to refer 22 questions of law to the Court of Appeal. Choo J heard this application and dismissed it. The defendant then applied by way of Criminal Motion No 7 of 2011 for leave to refer 26 questions of law to the Court of Appeal. This application was heard by the Court of Appeal rather than the High Court due to recent legislative amendments. The Court of Appeal dismissed the application.

Subsequently, the defendant filed Criminal Motion No 45 of 2011, which prayed for the High Court to review the decision of Choo J in Magistrate's Appeal No 184 of 2010. Steven Chong J heard this application and dismissed it. The defendant sought review of this decision of Chong J by way of Criminal Motion No 15 of 2012. The Attorney-General then filed this application under s 74 (1) of the SCJA.

Held, allowing the application:

(1) For an application under s 74 (1) of the SCJA to be granted, the court had to be satisfied that the defendant ‘habitually’ and ‘persistently’ and without any reasonable ground instituted ‘vexatious’ legal proceedings. ‘Habitually’ would suggest that the institution of legal proceedings occurred as a matter of course, or almost automatically when the appropriate conditions existed; ‘persistently’ would suggest determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness; and ‘vexatious’ proceedings would include proceedings which, irrespective of the motive of the litigant, were so obviously untenable or manifestly groundless as to be utterly hopeless: at [15] .

(2) The number of legal proceedings previously instituted by a defendant was not determinative of the question of whether an order under s 74 (1) of the SCJA should be made against him, nor was it necessarily an important factor: at [16] .

(3) The court had to take an objective view of the facts, meaning that it was immaterial that a defendant acted in good faith and/or honestly believed in the correctness and justice of his cause. The court should take a broad view of the legal proceedings instituted by a defendant, meaning that the court should consider the general character and result of all those proceedings, and not merely whether there may not have been possible causes of action in some of those proceedings: at [17] .

(4) On the present facts, considering the history of the legal proceedings instituted by the defendant, he had exhausted all possible recourse to the courts provided for by law in respect of his conviction in DAC 62538/2009. By filing first Criminal Motion No 45 of 2011 and then Criminal Motion 15 of 2012, he sought to go beyond that to impeach final judicial determinations without having any valid basis to do so, and in so doing had instituted legal proceedings which were utterly hopeless and hence ‘vexatious’. He instituted legal proceedings almost as a matter of course whenever a decision went against him, and thus did so ‘habitually’. He also did so ‘persistently’ in that he stubbornly refused to yield in the face of impossibility. Therefore the defendant's actions and behaviour fell within the words of s 74 (1) of the SCJA: at [19] and [20] .

(5) Notwithstanding this, the court retained a residual discretion to decline to make an order under s 74 (1) of the SCJA. Such discretion was to be exercised keeping in mind the objective of the statutory provision, which was to ensure that judicial time and resources was not diverted away from potentially meritorious cases by persons pursuing vain causes. An order against a litigant under s 74 (1) of the SCJA was thus for the protection of the court, in the interests of other people in society, especially the litigant's opponent, and for the benefit of the litigant himself: at [20] and [24] .

(6) In the present case, the order sought by the Attorney-General was a narrow and targeted one, in that it would limit the defendant's access to the courts only in relation to his conviction in DAC 62538/2009. This meant that the adverse effect of the order on the defendant's liberty would be contained. An order under s 74 (1) of the SCJA should be made against the defendant because it would be in the interests of the court, society in general, the Public Prosecutor and even the defendant himself: at [26] .

AG v Barker [2000] 1 FLR 759 (refd)

AG v Tee Kok Boon [2008] 2 SLR (R) 412; [2008] 2 SLR 412 (folld)

Foy v Foy (No 2) (1979) 26 OR (2 d) 220 (refd)

Lai Swee Lin Linda v AG [2006] 2 SLR (R) 565; [2006] 2 SLR 565 (refd)

Lai Swee Lin Linda v AG [2008] 2 SLR (R) 794; [2008] 2 SLR 794 (refd)

Mah Kiat Seng v PP [2011] 3 SLR 122 (refd)

Mah Kiat Seng v PP [2011] 3 SLR 859 (refd)

Mohammad Faizal bin Sabtu v PP [2013] 2 SLR 141 (refd)

PP v Mah Kiat Seng [2010] SGDC 315 (refd)

Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR (R) 133; [2001] 1 SLR 644 (refd)

Yong Vui Kong v AG [2011] 2 SLR 1189 (refd)

Yong Vui Kong v PP [2010] 2 SLR 192 (refd)

Yong Vui Kong v PP [2010] 3 SLR 489 (refd)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 397

Penal Code (Cap 224, 2008 Rev Ed) s 325

Registration of Criminals Act (Cap 268, 1985 Rev Ed) ss 8, 13 (2) (a) , 13 E (5) (a)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 74 (1) (consd) ;ss 60 (1) , 74, 74 (2)

Mohamed Faizal and Teo Siqi (Attorney-General's Chambers) for the applicant

Defendant in person.

Judgment reserved.

Lee Seiu Kin J

Introduction

1 In this originating summons, the Attorney-General (‘AG’) applied under s 74 (1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (‘SJCA’) for the following order:

No criminal legal proceedings or judicial review application shall without the leave of the High Court be instituted by Mah Kiat Seng (NRIC No [xxx]) with respect to his conviction for an offence under s 13 (2) (a) of the Registration of Criminals Act (Cap 268, 1985 Rev Ed) vide District Arrest Case No 62538 of 2009 in any court established by the SCJA or constituted under the Subordinate Courts Act (Cap 321, 1999 Rev Ed) and any other court, tribunal or judicial or quasi-judicial body from the decisions of which under any written law there is a right of appeal to the Supreme Court ('Court'); and that any such legal proceedings instituted by the said Mah Kiat Seng in any Court before the making of this order, including Criminal Motion No 15 of 2012...