Asia Development Pte Ltd v Attorney-General

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 24 March 2020
• Neutral Citation: [2020] SGCA 22
• Plaintiff Counsel: Mohamed Ibrahim s/o Mohamed Yakub (Achievers LLC)
• Docket Number: Civil Appeal No 166 of 2019
• Date: 24 March 2020
• Hearing Date: 24 March 2020
• Subject Matter: Administrative Law,Stamp duties,Revenue Law,Exercise of discretion,Remission,Judicial review
• Published date: 28 March 2020
• Defendant Counsel: Khoo Boo Jin, Wong Thai Chuan, Ailene Chou Xiujue, Lee Hui Min, Kelvin Chong and Kenneth Mak (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2020] SGCA 22
• Year: 2020

Sundaresh Menon CJ (delivering the judgment of the court ex tempore):

The appellant is a corporate purchaser of real estate that exercised an option to purchase 55 Moonstone Lane. On 16 August 2012, it applied for remission of the additional buyer’s stamp duty (“ABSD”) on the property. The ABSD remission was granted subject to the completion and sale of the property by 5 August 2015. The Commissioner of Stamp Duties (“the Commissioner”) granted an extension of the deadline to complete the development, but this proved insufficient. The appellant eventually paid the ABSD on the property (with interest) in November 2015. It completed the development and obtained a temporary occupation permit on 17 March 2016, and sold the property, which had by then been developed into two semi-detached houses, on 1 July 2016 and 15 August 2016.

The appellant made various applications for an extension of the deadlines for completing and selling the property. On 22 March 2017, it made its sixth and final application to the Minister for Finance (“the Minister”) for an extension of 15 months and 19 days. This request was expressly made invoking the Minister’s discretion under s 74(1) read with s 74(2B) of the Stamp Duties Act (Cap 312, 2006 Rev Ed) (“the SDA”). We reproduce these provisions for reference:

Power to reduce or remit duties

74.—(1) The Minister may, in his discretion and subject to such conditions as he may impose, reduce or remit, prospectively or retrospectively, in the whole or any part of Singapore, the duties with which any instrument or any particular class of instruments, or any of the instruments belonging to such class, or any instrument when executed by or in favour of any particular class of persons, or by or in favour of any members of such class, are chargeable.

…

(2B) The Minister may, in any particular case, in his discretion and at any time waive in whole or in part any condition imposed under subsection (1).

The appellant’s request was rejected seemingly on 22 May 2017 by the Chief Tax Policy Officer (“CTPO”) of the Ministry of Finance, but this was not explicitly done in the name of the Minister. The CTPO’s rejection of the appellant’s request was communicated to the appellant’s solicitors by way of a letter dated 23 May 2017 under the letterhead of the Inland Revenue Authority of Singapore (“IRAS”), and signed by a senior tax officer for the Commissioner. We refer to this decision as the “23 May Decision”.

The appellant applied in Originating Summons No 961 of 2017 (“OS 961”) for judicial review of the 23 May Decision. The relief sought included an order to quash that Decision and an order to mandate the Minister to reconsider its application for an extension of time. The appellant also sought a declaration that in allowing the CTPO to review appeals for the remission of ABSD under s 74(1) of the SDA, there had been an unlawful delegation of power by the Minister, and a declaration that the ABSD it had paid should be remitted, with interest. The High Court judge (“the Judge”) dismissed OS 961: see Re Asia Development Pte Ltd [2019] SGHC 181 (“the Judgment”).

The appellant challenges the Judge’s decision on three principal grounds. First, the 23 May Decision was improperly made because it should have been made by the Minister personally and not by the CTPO. Second, it was made in breach of natural justice. Third, no reasonable decision-maker would have made such a decision in the circumstances. The appellant additionally submits that it was in fact the Commissioner, and not the CTPO, that made the Decision.

We deal first with the appellant’s last contention, namely, that the 23 May Decision was made by the Commissioner. As reproduced above at [2], the power to grant the exemption or remission of ABSD is vested in the Minister under s 74(1) of the SDA, subject to any conditions he might impose. The power to waive any conditions imposed under s 74(1) is conferred under s 74(2B), similarly on the Minister. It was eventually attested by the CTPO that she made the decision to reject the appellant’s request for a further and final extension of time for it to develop and sell the property. Consistent with this, the appellant pleaded in OS 961 for: a. A Quashing Order to quash the decision in the letter of the Commissioner of Stamp Duties (the ‘Commissioner’) dated 23 May 2017 admitted by the Chief Tax Policy Officer of the Tax Policy Directorate of the Ministry of Finance (the ‘Chief Tax Policy Officer’) as made by her;

In our judgment, it is evident from the appellant’s prayer for relief that these proceedings had been brought on the footing that the 23 May Decision was made by an officer of the Ministry of Finance. We do not think the appellant can now change course and argue that this was in fact a decision of the Commissioner, even though at various times the correspondence regarding the Decision was sent from the Commissioner and IRAS. We accordingly consider the Decision to have been made by the CTPO acting under the authority of the Minister.

We turn to consider the main substantive issue in this appeal, namely, whether the powers under s 74(1) and s 74(2B) of the SDA had to be exercised by the Minister in person, or whether it could be exercised by an officer within the Ministry of Finance on the basis of the Minister’s authorisation. The Judge accepted at [13] of the Judgment, and we agree, that the latter view is correct. This is well established by the decision in Carltona Ltd v Commissioners of Works and others [1943] 2 All ER 560 (“Carltona”), where the English Court of Appeal said as follows (per Lord Greene MR at 563):

… [T]he functions which are given to ministers … are functions so multifarious that no minister could ever personally attend to them. … It cannot be supposed that [the regulation concerned] meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental...