AG v Tham Yim Siong

• Jurisdiction: Singapore
• Judge: Kannan Ramesh J
• Judgment Date: 30 October 2017
• Neutral Citation: [2017] SGHC 267
• Citation: [2017] SGHC 267
• Hearing Date: 30 June 2017
• Published date: 02 November 2017
• Year: 2017
• Date: 30 October 2017
• Docket Number: Originating Summons No 334 of 2017
• Plaintiff Counsel: Sivakumar Ramasamy and Elaine Liew Ling Wei (Attorney-General's Chambers)
• Defendant Counsel: The defendants unrepresented and absent.
• Court: High Court (Singapore)

Kannan Ramesh J:

By Originating Summons No 334 of 2017 (“OS” and “OS 334”), the Attorney-General (“the AG”) applied for orders to restrain the defendants from instituting or continuing proceedings in any court without the leave of the High Court. On 30 June 2017, I heard the application in the absence of the defendants, and granted an order in terms of the prayers sought. There has been no appeal from my decision. However, the application raised two novel issues concerning the scope of s 74(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”). First, do failed or unsuccessful attempts to file proceedings amount to the institution of proceedings for the purposes of s 74(1)? Secondly, may an order under s 74(1) be granted against a litigant who is absent from the hearing of the application for the order? These issues do not appear to have been considered by our courts previously. I now deliver the grounds of my decision.

The facts

The first defendant is the daughter of the second and third defendants.

On 9 May 2016, the defendants filed a bankruptcy application, HC/B 1051/2016 (“OS 1051”), against 21 defendants (“the 21 Defendants”) including nine Cabinet Ministers (“the 9 Ministers”). In their joint supporting affidavit, the defendants averred that the 21 Defendants were indebted to them in the sum of $1,773,192.99 excluding interest; and that they had served statutory demands on the 21 Defendants for this sum, which demands had neither been complied with nor set aside. I note that although OS 1051 was commenced against the 21 Defendants, the defendants had also identified a total of 1426 alleged debtors in a List of Debtors which was sent to the AGC at about the same time as the filing of OS 1051. In OS 1051, the defendants raised a myriad of complaints against the 21 Defendants. They alluded, inter alia, to an injury suffered by the third defendant and her claims thereafter for employment benefits, related wrongful disclosures of confidential information and a criminal conspiracy against the defendants. The gist of the claims against the 9 Ministers was that as office holders or heads of a ministry or organisation, they were liable for the alleged misconduct and breaches which were relevant to the defendants’ allegations.

On 18 May 2016, the 9 Ministers and two other defendants in OS 1051 applied to strike out OS 1051 on the basis that it was frivolous, vexatious, obviously unsustainable, and an abuse of the process of the court. On 20 May 2016, Woo Bih Li J (“Woo J”) heard the striking-out applications. Woo J held that OS 1051 was groundless and an abuse of the process of the court, and struck out and dismissed OS 1051 against the 9 Ministers and the other two defendants. On 27 May 2016, Woo J struck out OS 1051 against the remaining defendants.

On 30 May 2016, the Supreme Court sent a letter to the parties in OS 1051 stating that OS 1051 “has been struck out and dismissed in its entirety”.

The defendants then sent an email to the Registrar of the Supreme Court (“the RSC”) dated 1 June 2016 (“the 1 June 2016 email”), insisting that Woo J’s orders to strike out OS 1051 against the 9 Ministers and two other defendants be set aside. Further, they recommended that Woo J be temporarily suspended on “suspicion of misconduct” and alleged that the then Second Solicitor-General, who was not one of the 21 Defendants, was “a secondary suspect in criminal conspiracy”. The 1 June 2016 email was copied to more than 60 persons, including the President, the Prime Minister, several Cabinet Ministers and members of the media.

By a letter dated 2 June 2016, the Supreme Court responded to the 1 June 2016 email by reiterating that OS 1051 had been “struck out and dismissed in its entirety” and stated that the defendants “may wish to seek legal advice … for the matters raised in [their] email”.

Subsequently, by an email dated 6 June 2016, the defendants wrote to the Chief Justice, alleging that Woo J’s orders in OS 1051 “are strong evidence of his inability to perform the functions of his office” and that they suspected that the RSC was involved in a criminal conspiracy. This email was also copied to, inter alia, the President, the Prime Minister, several Cabinet Ministers and the media.

On 22 June, 3 July and 12 July 2016, the first defendant purported to serve three “affidavits” by email on various public agencies, organisations, and several Cabinet Ministers. These were sworn by the first defendant on behalf of all of the three defendants. The “affidavits” apparently pertained to OS 1051, but named the Prime Minister as the sole defendant. These emails were copied, inter alia, to members of the media. The enclosed “affidavits” levelled a host of allegations of wrongful conduct against public agencies and public officers. They also stated that around 1500 persons owed debts to the defendants, including the President, the Prime Minister and the Chief Justice.

On 15 August 2016, the first defendant attempted to file what she termed a “summary judgment” application (“the Summary Judgment Application”) in the State Courts. This comprised a draft OS, which named 19 defendants, including Woo J, the RSC, the then Solicitor-General and Second Solicitor-General and counsel for the defendants in OS 1051, and an affidavit affirmed by the first defendant. In the affidavit, the first defendant averred that Woo J’s orders that OS 1051 be struck out were void and liable to be set aside. She sought an order for substituted service of OS 1051 and a special hearing “at the Supreme Court Auditorium for [six] consecutive days”. The Summary Judgment Application was closely linked to OS 1051 as it was an attempt to revive the same, notwithstanding that OS 1051 had already been conclusively dealt with by Woo J.

On 16 August 2016, the State Courts rejected the Summary Judgment Application on the basis, inter alia, that bankruptcy proceedings fell outside the jurisdiction of the State Courts.

On 28 August 2016, the first defendant purported to serve, by email, a further “affidavit” on several Cabinet Ministers. This “affidavit” was also allegedly sworn by the first defendant on behalf of all the defendants. Again, it named the Prime Minister as the sole defendant, and alleged wrongful conduct on the part of various public officers and agencies. The first defendant also attached a List of Debtors to this email which, this time, identified 1501 purported debtors.

On or about 26 October 2016 and 15 February 2017, the first defendant sent two more “affidavits” to AGC which named herself as the plaintiff. The “affidavit” dated 26 October 2016 named several Cabinet Ministers and senior public officers as defendants. The “affidavit” dated 15 February 2017 (“the CLTPA Affidavit”) named 12 alleged Legal Service Officers (“the 12 LSOs”) as defendants. Wrongful conduct was again alleged against the named defendants, and the first defendant sought the Minister of Home Affairs to impose a detention order under the Criminal Law (Temporary Provisions) Act (Cap 67, 2000 Rev Ed) in respect of the 12 LSOs.

On 22 February 2017, the first defendant attempted to file an application in the Supreme Court for leave for an investigation to be made into a complaint of misconduct against the AG and the 12 LSOs under s 82A(5) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA Application”). Again, this consisted of a draft OS and an affidavit. Pertinently, the allegations of misconduct in the affidavit concerned the injury suffered by the third defendant and the related breaches of confidential data. These were the very same factual matters that underpinned OS 1051 (see [3] above). Thus, in filing the LPA Application, the first defendant was essentially raising the same facts that she had relied on in OS 1051, albeit in the different context of making a complaint against public officers, rather than that of a bankruptcy application.

On 24 February 2017, the Supreme Court rejected the LPA Application on the basis that the draft OS and affidavit did not comply with O 7 r 3(1) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the Rules of Court”); and the affidavit did not comply with O 41 r 1(4) of the Rules of Court.

On 13 March 2017, the defendants attempted to file an application to “renew” OS 1051 (“the Renewal Application”) comprising a draft OS (“the Draft Renewed OS”) and an affidavit. The affidavit did not name the 21 Defendants as defendants, but instead named as defendants the 13 defendants to the LPA Application and ten other public officers. The contents of the affidavit were similar to those of the affidavit filed in connection with the Summary Judgment Application. It was again stated that OS 1051 was still pending; and the same orders for substituted service and a special hearing of OS 1051, ie, the same reliefs prayed for in the Summary Judgment Application, were sought once more (see [10] above).

On 15 March 2017, the Supreme Court rejected the Renewal Application on the basis that OS 1051 had been struck out in its entirety and there was thus no longer any matter for renewal.

Notwithstanding the rejection of the Renewal Application, on 15 March 2017, the first defendant purported to serve three documents on some 60 recipients by email. These were (1) a document entitled “Renewed Originating Summons (Creditor’s Bankruptcy Application) (“the Purported Renewed OS”), (2) an affidavit and (3) a “Proof of Loss Form” listing 314 persons. The Purported Renewed OS was similar to the Draft Renewed OS, but differed from the latter in the following material aspects. The Purported Renewed OS referred to a “Special Hearing Date … from 29-March-2017 to 03-April-2017”, and stated that the hearing would be before a Judge. The Draft Renewed OS did not state this. The Purported Renewed OS bore a notation stating “Renewed for 6 months from the 10 [sic] day of November...