Ahq v Ag

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 22 June 2015
• Neutral Citation: [2015] SGCA 32
• Year: 2015
• Date: 22 June 2015
• Published date: 25 June 2015
• Hearing Date: 29 January 2015
• Plaintiff Counsel: The appellants in person
• Citation: [2015] SGCA 32
• Defendant Counsel: Hui Choon Kuen and Zheng Shaokai (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeals Nos 109 and 110 of 2014

Chao Hick Tin JA (delivering the grounds of decision of the court): Introduction

Should a disgruntled litigant with a burning sense of grievance caused by his experience with the judicial process be entitled to sue the government in an action in tort for damages? Would he succeed if he sued the judge concerned personally? These were the questions which were at the core of the two appeals before us. Having heard the submissions of the parties, we dismissed both appeals. We now give the reasons for our decision.

The facts

The appellants in Civil Appeal No 109 of 2014 (“CA 109/2014”) and Civil Appeal No 110 of 2014 (“CA 110/2014”) were, respectively, AHQ and Ho Pak Kim Realty Co Pte Ltd (“HPK”). HPK’s managing director is AHQ. The respondent in both CA 109/2014 and CA 110/2014 was the Government of the Republic of Singapore (“the Government”), represented by the Attorney-General.

These appeals arose out of certain court orders made against AHQ and HPK in two separate legal proceedings. The first set of orders, which concerned ancillary matters following the dissolution of the marriage between AHQ and his former spouse (“the Former Spouse”), may be summarised as follows: On 18 September 2009, District Judge Angelina Hing (“District Judge Hing”) granted an interim personal protection order to the Former Spouse restraining AHQ from committing violence against her and their daughter. On 29 October 2009, District Judge Hing granted interim care and control of the son and the daughter to, respectively, AHQ and the Former Spouse. AHQ was given supervised access to the daughter on Sundays from 10.00am to 12.00pm. The Former Spouse was given access to the son on three weekdays during school holidays and two weekdays during school terms from 7.00pm to 9.30pm, as well as on Saturdays from 10.00am to 8.00pm. On 12 November 2009, District Judge Hing varied the terms of the order made on 29 October 2009, and granted interim care and control of the son to the Former Spouse too. AHQ was only granted supervised access to the son on Sundays from 10.00am to 12.00pm. On 8 April 2010, District Judge Hing made the following orders: the Former Spouse was given sole custody, care and control of both children; AHQ was granted supervised access to the children on Sundays from 10.00am to 12.00pm; AHQ was to pay the Former Spouse maintenance for the two children in the total sum of $1,500 per month; and AHQ was to hand over the children’s passports, birth certificates and health booklets to the counsel of the Former Spouse. On 6 October 2010, Kan Ting Chiu J dismissed AHQ’s appeal against the orders made by District Judge Hing on 8 April 2010. On 14 February 2011, Kan J made no order in relation to AHQ’s application for leave to appeal. On 20 December 2011, District Judge Emily Wilfred (“District Judge Wilfred”) ordered AHQ and the Former Spouse to attend a mediation session on 23 December 2011. This was pursuant to the Former Spouse’s application for enforcement of the maintenance order after AHQ failed to pay maintenance for the children. AHQ failed to turn up for the mediation session on 23 December 2011. District Judge Jocelyn Ong then issued a warrant for his arrest. On 15 March 2012, the Former Spouse confirmed that AHQ had paid the arrears in maintenance, whereupon District Judge Wilfred cancelled the warrant of arrest.

The second set of court orders were made pursuant to legal proceedings commenced as a result of a dispute between HPK, as the main contractor, and Revitech Pte Ltd (“Revitech”), as the developer, over a construction project. The case stretched over a long period of time, with a number of tranches of hearing touching on the questions of both liability and quantum. The relevant court orders made were as follows: On 13 November 2007, Lai Siu Chiu J ruled in favour of Revitech on the issue of whether certain documents formed part of the building contract between the parties (see Ho Pak Kim Realty Co Pte Ltd v Revitech Pte Ltd [2007] SGHC 194). HPK filed a notice of appeal (viz, Civil Appeal No 149 of 2007), but was deemed to have withdrawn its appeal pursuant to O 57 r 9(4) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) when it failed to file the requisite documents on time. On 8 April 2010, Lai J allowed HPK’s claim for outstanding progress payments, but dismissed its claims for under-valuation of the works carried out and wrongful termination of the parties’ contract (see Ho Pak Kim Realty Co Pte Ltd v Revitech Pte Ltd [2010] SGHC 106). Lai J also allowed the counterclaim by Revitech for delay in completion and defective works, and ordered (inter alia) that the costs of rectifying the defective works be assessed. On 30 September 2010, the Court of Appeal dismissed HPK’s appeal against Lai J’s decision of 8 April 2010, but made a minor variation to one of Lai J’s orders. On 19 February 2013, Lai J dismissed HPK’s appeal against the decision of Assistant Registrar Shaun Leong on the assessment of damages, and allowed Revitech’s cross-appeal for the sums awarded to it to be increased. On 29 October 2013, Assistant Registrar James Elisha Lee proceeded with the second tranche of the assessment of damages and awarded damages to Revitech.

On 3 January 2014, AHQ and HPK commenced, respectively, Suit No 3 of 2014 (“Suit 3/2014”) and Suit No 4 of 2014 (“Suit 4/2014”) against the Government in respect of the orders/acts of the courts alluded to at [3] and [4] above. The Government applied via separate applications in Suit 3/2014 and Suit 4/2014 to strike out the statement of claim in both suits. The senior assistant registrar allowed the Government’s applications. Both AHQ and HPK appealed against that decision (AHQ’s and HPK’s respective appeals will hereafter be referred to collectively as “the two Registrar’s Appeals”).

The decision below

The judge who heard the two Registrar’s Appeals (“the Judge”) upheld the decision of the senior assistant registrar (see AHQ v Attorney-General [2014] 4 SLR 713 (“AHQ v AG”) in relation to Suit 3/2014, and Ho Pak Kim Realty Co Pte Ltd v Attorney-General [2014] SGHC 176 (“HPK v AG”) in relation to Suit 4/2014). The Judge found that it was obvious that AHQ and HPK did not have any reasonable cause of action against the Government because: (a) judges were immune from suit in relation to the exercise of their judicial power and responsibilities; and (b) the Government was likewise immune from suit in relation to acts carried out by any person in the discharge of judicial duties (“judicial acts”).

AHQ and HPK appealed against the decision of the Judge via, respectively, CA 109/2014 and CA 110/2014, both of which we dismissed (see [1] above). As this appears to be the first time that the issue of state liability for judicial acts is canvassed before this court, and although the point is obvious, we shall now briefly explore the principles which formed the basis for our decision on the present appeals.

The issue before this court

In both Suit 3/2014 and Suit 4/2014, AHQ and HPK respectively named only the Government as the defendant. The critical issue before us was whether the Government was entitled to rely on s 6(3) of the Government Proceedings Act (Cap 121, 1985 Rev Ed) (“GPA”) to resist the claims. Under s 6(3):

No proceedings shall lie against the Government by virtue of section 5 [which sets out the Government’s liability in tort] in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.

The rationale for s 6(3) of the GPA cannot be considered without first examining the doctrine of judicial immunity, which forms the bedrock for what is provided in s 6(3). Accordingly, we shall begin by briefly considering the concept of judicial immunity, followed by the related concept of state immunity for judicial acts as reflected in s 6(3). Our analysis and decision Development and rationale of judicial immunity and state immunity The concept of judicial immunity

The concept of judicial immunity is one of considerable antiquity. In the seminal English Court of Appeal decision of Sirros v Moore and Others [1975] QB 118 (“Sirros”), Lord Denning MR alluded to the concept of judicial immunity, and highlighted the distinction between acts which fell within the jurisdiction of the judge and acts which did not (at 132–136):

The liability of the judge 1. Acts within jurisdiction

Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. … The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear. It was well stated by Lord Tenterden C.J. in Garnett v. Ferrand (1827) 6 B. & C. 611, 625: “This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.”

Those words apply not only to judges of the superior courts, but to judges of all ranks, high or low. … 2. Acts without jurisdiction

… I must now turn to acts done outside [a...