Au Wai Pang v Attorney-General and another matter

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 30 April 2014
• Neutral Citation: [2014] SGCA 23
• Court: Court of Appeal (Singapore)
• Docket Number: Originating Summonses Nos 59 of 2014 and 1175 of 2013
• Published date: 25 June 2014
• Year: 2014
• Hearing Date: 28 February 2014
• Plaintiff Counsel: Peter Low and Choo Zheng Xi (Peter Low LLC)
• Defendant Counsel: Tai Wei Shyong, Francis Ng, Elaine Liew and Teo Lu Jia (Attorney-General's Chambers)
• Subject Matter: Civil Procedure
• Citation: [2014] SGCA 23

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

Originating Summons No 1175 of 2013 (“OS 1175/2013”) is an ex parte application by the Attorney-General (“the AGC”) under O 57 r 16(3) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”) for leave to apply for an order of committal against Au Wai Pang (“Alex Au”) for contempt of court in respect of an article published on his blog. Originating Summons No 59 of 2014 (“OS 59/2014”) is an application by Alex Au to appear in and contest OS 1175/2013.

Procedural background

In an earlier application to the High Court (Originating Summons No 1098 of 2013, hereinafter “OS 1098/2013”), the AGC sought leave to apply for an order of committal against Alex Au for contempt of court in respect of two articles published on his blog: “377 wheels come off Supreme Court’s best-laid plans”, published on 5 October 2013 (“the first article”); “Church sacks employee and sues government — on one ground right, on another wrong”, published on 12 October 2013 (“the second article”).

On 25 November 2013 at around 10.30pm, Alex Au received word through the media that the AGC intended to apply to the High Court judge (“the Judge”) on the morning of 26 November 2013 for leave to initiate committal proceedings against him. The following morning, counsel for Alex Au sought leave to convert OS 1098/2013 into an inter partes hearing. OS 1098/2013 was adjourned to 27 November 2013 for further submissions on whether this should be done. The request to convert OS 1098/2013 into an inter partes hearing was denied by the Judge during the 27 November hearing. She nevertheless allowed Alex Au’s counsel to hold a watching brief for him in chambers. The Judge also granted leave to the AGC to apply for an order of committal against Alex Au in respect of the first article, but not the second.

O 57 r 16(3) of the ROC stipulates that, in the event of a refusal of an ex parte application by the High Court, an application for a similar purpose may be made to the Court of Appeal within seven days after the date of refusal. The AGC attempted to electronically file the application on 6 December 2013 (the seventh day after the date of refusal), but this filing was rejected by the Supreme Court registry on 9 December 2013 because of an error in the title of a document.

After correcting this error, the AGC re-filed the application on 9 December 2013 under a different case number, namely, OS 1175/2013. On 12 December 2013, the AGC appeared before the Duty Registrar to fix two summonses before the Duty Judge. The first summons was for the hearing of OS 1175/2013 to be expedited; the second summons was for the AGC to be granted an extension of time until 9 December 2013 to file OS 1175/2013. We note from the minutes of the proceedings that counsel for the AGC informed the Duty Registrar that s 36(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”) empowered a single judge to hear an application for extension of time to file an originating summons before the Court of Appeal. The AGC also invoked O 57 r 16(3) of the ROC and relied on observations made in the Court of Appeal decision of Dorsey James Michael v World Sport Group Pte Ltd [2013] 3 SLR 354 (“Michael Dorsey”) for the proposition that the application in OS 1175/2013 was not an appeal, and was in fact a “renewal application”. The Duty Registrar fixed the two summonses before the Duty Judge, and in doing so observed that the Duty Judge could decide whether he had jurisdiction and whether it was proper to hear the application for an extension of time.

Counsel for the AGC appeared before the Duty Judge on 13 December 2013, whereupon he granted orders in terms for both the application to expedite and the application for extension of time. Unfortunately, the available minutes make no reference to the submissions made to him or his reasons for allowing the applications.

OS 59/2014 was filed by Alex Au on 17 January 2014.

This court heard OS 1175/2013 and OS 59/2014 on 28 February 2014. We were however concerned with two issues, which we drew to counsel’s attention in the course of the hearing: whether the Duty Judge had the power to sit as the Court of Appeal and grant an extension of time; and whether the Court of Appeal has the jurisdiction to grant leave to commence committal proceedings for contempt of court.

Did the Duty Judge have the power to grant an extension of time?

Section 36(1) of the SCJA (“s 36(1)”) is the governing provision on this particular issue. It reads:

In any proceeding pending before the Court of Appeal, any direction incidental thereto not involving the decision of the appeal, any interim order to prevent prejudice to the claims of parties pending the appeal, and any order for security for costs and for the dismissal of an appeal for default in furnishing security so ordered, may at any time be made by a Judge. [emphasis added in italics and bold italics]

The definition of the word “pending” has been considered by numerous Singaporean and Malaysian cases, all of which speak with one voice. In the Federation of Malaya Court of Appeal decision of K Sockalinga Mudaliar v S Eliathamby & Anor [1952] MLJ 77, Thomson J commented (at 78) that “pending” is derived from the Latin word pendere, which literally translates as “to hang”, and quoted Stroud’s Judicial Dictionary (2nd ed) at p 1445:

A legal proceeding is “pending” as soon as commenced... and until it is concluded, i.e. so long as the Court having original cognizance of it can make an order on the matters in issue, or to be dealt with, therein. [emphasis added]

The Singapore High Court decision of Goh Teng Hoon and others v Choi Hon Ching [1985-1986] SLR(R) 869 (at [7]) and the Singapore Court of Appeal decision of Bank of India v Rai Bahadur Singh and another [1993] 2 SLR(R) 1 (“Bank of India”) (at [14]) cited the same passage with approval. The definition in Stroud’s Judicial Dictionary appears to have stemmed from the seminal English Court of Appeal decision of In re Clagett’s Estate; Fordham v Clagett (1882) 20 Ch D 637, where Jessel MR held that a cause is said to be pending in a court when any proceeding can be taken in it.

More specifically, no orders can be made if proceedings have not been already validly commenced. This proposition emerges from the English Court of Appeal decision of Sugden and others v Lord St Leonards and others (1876) 1 PD 154, wherein Mellish LJ observed, in the course of argument, as follows (at 209):

We have held in several cases that, till an appeal is brought, there is nothing pending in the Court of Appeal.

The Annual Practice 1923 is also instructive in this regard (at p 2081):

Until an appeal is brought there is nothing “pending” before the C. A. A single judge has no jurisdiction hereunder until an appeal has been presented. The proper course seems to be in the first place to serve a notice of appeal, which will be for a day in vacation, or so soon thereafter, &c. and then to write to a member of the C. A. asking if and when it will be convenient to him to hear an application under the section. [case references omitted and emphasis added]

We agree with the settled approach adopted in the authorities enumerated above. The test for whether proceedings are “pending” is whether the court concerned has the power to make an order on the matters in issue therein. An application for an extension of time to file OS 1175/2013 must be predicated, however, on the implicit assumption that the originating summons was not filed within the stipulated timeline. As OS 1175/2013 was not validly commenced in the first place, there is nothing before this court; consequently, this court does not have the power to make an order on the matters in issue. OS 1175/2013 therefore cannot be said to be “pending” before this court.

Plainly, until and unless proceedings have been validly commenced, proceedings cannot be said to be “pending” before this court. An application for an extension of time to file OS 1175/2013 must be predicated on the admission that OS 1175/2013 has not been regularly filed in the first place. It follows that the Duty Judge, as a single Judge, did not have the same power as the Court of Appeal to grant an extension of time.

Further, the word “proceeding” in s 36(1) is also qualified by the clauses following it. The word “appeal” is mentioned another three times in s 36(1) itself; a single judge has the power to make orders only in the following three types of situations: an incidental direction not involving the decision of the appeal; an interim order to prevent injustice to the claims of parties pending the appeal; or an order for security of costs and for the dismissal of an appeal for default in furnishing security so ordered. It is therefore axiomatic that s 36(1) does not envisage a single judge having the power to sit as the Court of Appeal if an appeal has not been validly commenced. We shall elaborate on this point later (at [18]–[25]).

In this regard, the instant facts are eminently distinguishable from those in the Bank of India case, where Judith Prakash JC (as she then was), sitting as a single judge of the Court of Appeal pursuant to s 36(1), permitted an application to effect service of the appellant’s record of appeal out of time. Proceedings in that particular matter had been validly commenced: the notice of appeal and record of appeal had been regularly filed. The applicant was merely seeking to regularise the service of the record of appeal. This is quite unlike the case before this court, where OS 1175/2013 had not even gotten off the ground in the first place.

In the course of argument the AGC, without reference to any authority, urged this court to adopt a purposive approach as mandated by s 9A of the Interpretation Act (Cap 1, 2002 Rev Ed). Unfortunately,...