Au Wai Pang v AG

• Jurisdiction: Singapore
• Judgment Date: 30 April 2014
• Date: 30 April 2014
• Docket Number: Originating Summonses Nos 59 of 2014 and 1175 of 2013
• Court: Court of Appeal (Singapore)

Au Wai Pang

Plaintiff

and

Attorney-General and another matter

Defendant

[2014] SGCA 23

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Originating Summonses Nos 59 of 2014 and 1175 of 2013

Court of Appeal

Civil Procedure—Appeals—Applicant filing application under O 57 r 16 (3) Rules of Court (Cap 322, R 5, 2006 Rev Ed) for leave to commence committal proceedings for contempt of court—Whether O 57 r 16 (3) application an appeal to Court of Appeal—Order 57 r 16 (3) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Civil Procedure—Extension of time—Single judge sitting as Court of Appeal granting application for extension of time to file originating summons—Whether single judge having power to grant such extension of time

Civil Procedure—Jurisdiction—Applicant filing application under O 57 r 16 (3) Rules of Court (Cap 322, R 5, 2006 Rev Ed) for leave to commence committal proceedings for contempt of court—Whether Court of Appeal having original jurisdiction to hear O 57 r 16 (3) application—Order 57 r 16 (3) Rules of Court (Cap 322, R 5, 2006 Rev Ed)

In an earlier application to the High Court, the Attorney-General (‘the AGC’) sought leave to apply for an order of committal against Au Wai Pang for contempt of court in respect of two articles published on his blog. The Judge granted leave for one article, but not for the other.

In response to this, the AGC attempted to file an application for a similar purpose (pursuant to O 57 r 16 (3) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed)) to the Court of Appeal (OS 1175/2013). This filing was rejected because of an error in the title of a document. The AGC corrected this error and re-filed the application, out of time, on 9 December 2013. The AGC appeared before the duty registrar on 12 December 2013 to fix summonses before the duty judge (‘the Duty Judge’). The AGC appeared before the Duty Judge on 13 December 2013, whereupon he, inter alia, granted an extension of time to file OS 1175/2013. In the meantime, counsel for Au Wai Pang filed an application seeking to appear in and contest OS 1175/2013 (OS 59/2014).

OS 1175/2013 and OS 59/2014 came before the Court of Appeal for its decision. OS 1175/2013 raised two issues. The first was whether the Duty Judge had the power to sit as the Court of Appeal and grant an extension of time. The second was whether the Court of Appeal had the jurisdiction to grant leave to commence committal proceedings for contempt of court.

Held, dismissing OS 1175/2013 and making no order on OS 59/2014:

(1) In so far as the first issue was concerned, the definition of the word ‘pending’ had been considered by numerous Singaporean and Malaysian cases, all of which speak with one voice. The test for whether proceedings were ‘pending’ was whether the court concerned had the power to make an order on the matters in issue therein. Until and unless proceedings had been validly commenced, proceedings could not be said to be ‘pending’ before the court: at [10] , [13] and [14] .

(2) Section 36 (1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (‘the SCJA’) did not envisage a single judge having the power to sit as the Court of Appeal if an appeal had not been validly commenced. Section 36 (1) was intended to avoid burdening a three-judge court with applications which could be more expeditiously disposed of by a single judge. A single judge could make interim orders aimed at preventing prejudice or preserving the status quo. Administrative efficiency was ultimately justified by the fact that the interim orders made were not dispositive of the substantive appeal. If an extension of time were not granted, this would be dispositive of the appeal and conclusively settle the respective legal entitlements of the parties, who would be bound by the judgment below. In the circumstances, the first issue had to be answered in the negative: at [15] , [23] and [24] .

(3) In so far as the second issue was concerned, the Court of Appeal, being a creature of statute, could only be seized of jurisdiction that was conferred by statute: at [27] .

(4) It was evident that none of the provisions in the SCJA conferred original jurisdiction on the Court of Appeal: at [30] .

(5) As a matter of hierarchy, the Rules of Court was subsidiary legislation that was, by its very nature, subordinate to its parent act, the SCJA, and had to be read in harmony with the same. Section 80 (1) of the SCJA made it clear that the Rules of Court regulated procedure and practice. The Rules of Court did not, and could not, confer jurisdiction on the Court of Appeal by a side wind. Order 57 r 16 (3) presupposed that the court had already been validly seized of jurisdiction: at [33] and [34] .

(6) Section 7 (1) of the SCJA was a power-conferring and not a jurisdiction-conferring provision: at [36] .

(7) Assuming arguendo that the Court of Appeal had the original jurisdiction to grant leave and did grant leave, it would be highly anomalous for the Court of Appeal to then remit the committal application to the High Court: at [38] .

(8) The inexorable conclusion was that the Court of Appeal did not have the original jurisdiction to grant leave to commence committal proceedings: at [39] .

(9) Kemper Reinsurance Co v Minister of Finance [2000] 1 AC 1 did not consider the possibility that the English Court of Appeal lacked jurisdiction, and appeared to presuppose jurisdiction out of expediency to justify previous practice. Its characterisation of an application under O 59 r 14 (3) of the Rules of the Supreme Court (UK) (the then English equivalent to O 57 r 16 (3)) as an appeal was also unsupported by the weight of case authority: at [50] , [51] and [53] .

(10) There were also significant differences between the jurisdictional bases of the English Court of Appeal and the Singapore Court of Appeal. Section 15 (2) of the UK Supreme Court Act 1981 (c 54) clearly contemplated that the English Court of Appeal could exercise ‘all such other’ jurisdiction historically exercised. Singapore's statutory provisions clearly stated that the Court of Appeal only exercised appellate jurisdiction: at [58] and [59] .

(11) An appeal was, by definition, the judicial examination by a higher court of the decision of an inferior court. There was nothing to examine if an application under O 57 r 16 (3) ‘for a similar purpose’ was made to the Court of Appeal. In such an application, the Court of Appeal would look at the matter completely afresh and without having the benefit of the reasoned grounds upon which the application had been refused by the High Court: at [62] .

(12) Order 57 r 3 (1) of the Rules of Court utilised ‘must’; this meant that O 57 r 3 (1) was the only means of commencing an appeal. Order 57 r 5 (1) also ensured that the Court of Appeal was able to examine the decision of the court below. The ineluctable conclusion was that an O 57 r 16 (3) application for a similar purpose was not an appeal: at [63] to [65] .

[Observation: The remarks made in Dorsey James Michael v World Sport Group Pte Ltd[2013] 3 SLR 354 pertaining to O 57 r 16 (3) of the Rules of Court were of general application; it did not consider how O 57 r 16 (3) interfaced with jurisdiction and did not apply to situations where the very jurisdiction of the court was in doubt: at [40] and [41] .

It was not to the point that O 57 r 16 (3) entailed a ‘procedure adapted to its ex parte nature’. The usual provisions in the Rules of Court were more than capable of handling an appeal from the refusal of an ex parte application: at [66] .

Order 57 r 16 (3) was not ultra viresvis-à-vis the SCJA. Section 29 A (3) of the SCJA conferred on the Court of Appeal the jurisdiction and powers of the court below if this was incidental to the hearing and determination of an appeal. It was accepted that the line between a free-standing and incidental application was potentially difficult to draw; the precise contours of this line could only be determined on a case-by-case basis: at [69] , [70] and [73] .]

Bank of India v Rai Bahadur Singh [1993] 2 SLR (R) 1; [1993] 2 SLR 592 (refd)

Brown v Brook (1902) 86 LT 373 (refd)

Clagett's Estate, Re; Fordham v Clagett (1882) 20 Ch D 637 (refd)

Cropper v Smith (1883) 24 Ch D 305 (refd)

Dhillon v Secretary of State for the Home Department (1988) 86 Cr App R 14 (refd)

Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 (refd)

Goh Teng Hoon v Choi Hon Ching [1985-1986] SLR (R) 869; [1986] SLR 353 (refd)

KSockalinga Mudaliar v SEliathamby [1952] MLJ 77 (refd)

Kemper Reinsurance Co v Minister of Finance [2000] 1 AC 1 (not folld)

Lane v Esdaile [1891] AC 210 (refd)

Nalpon Zero Geraldo Mario, Re [2013] 3 SLR 258 (refd)

Ocean Software Ltd v Kay [1992] QB 583 (refd)

Poh, Re [1983] 1 WLR 2 (refd)

Practice Note (Court of Appeal: New Procedure) [1982] 1 WLR 1312 (refd)

R v Bolton Justices, ex parte Graeme (1986) 150 JP 190 (refd)

R v Industrial Injuries Commissioner, ex parte Amalgamated Engineering Union [1966] 2 QB 21 (refd)

R v Secretary of State for the Home Department, ex parte Turkoglu [1988] QB 398 (refd)

R (Burkett) v Hammersmith and Fulham London Borough Council [2002] 1 WLR 1593 (not folld)

Subesh v Secretary of State for the Home Department [2004] All ER (D) 326 (Mar) (refd)

Sugden v Lord St Leonards (1876) 1 PD 154 (refd)

WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721 (refd)

Court of Criminal Appeal Ordinance 1931 (SS Ord No 5 of 1931; SS Cap 11, 1936 Rev Ed) s 5

Court's Ordinance 1873 (SS Ord No V of 1873) s 83

Courts Ordinance 1878 (SS Ord No III of 1878) s 66

Courts Ordinance 1907 (SS Ord No XXX of 1907) ss 11, 13

Courts Ordinance 1934 (SS Ord No 17 of 1934) ss 19, 26 (1)

Courts Ordinance (SS Cap 10, 1936 Rev Ed) ss 20, 27 (1)

Courts Ordinance (Cap 3, 1955 Rev Ed) ss 22, 29 (1)

Interpretation Act (Cap 1, 2002 Rev Ed) s 9 A

Rules of Court (Cap 322, R...