Balqis-Maimon Abd Rahman v Soekiman bin Parjo

• Jurisdiction: Singapore
• Judge: Vincent Hoong J
• Judgment Date: 28 June 2021
• Docket Number: Civil Revision No 1 of 2021
• Court: High Court (Singapore)

Balqis-Maimon Abd Rahman

and

Soekiman bin Parjo and others

[2021] SGHC 160

Vincent Hoong J

Civil Revision No 1 of 2021

General Division of the High Court

Courts and Jurisdiction — High Court — Civil revision proceedings — Applicant having obtained orders from lower court allowing change of name and gender — Whether orders were made without legal basis and ought to be set aside — National Registration Act (Cap 201, 1992 Rev Ed)

Courts and Jurisdiction — High Court — Civil revision proceedings — Applicant having obtained orders from lower court allowing change of name and gender — Whether revisionary powers of court should be exercised — Section 25 Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Held, setting aside the Orders:

(1) The District Court was a creature of statute and its jurisdiction and powers were conferred by the relevant applicable written laws. There was no authority or statute which conferred upon the Deputy Registrar the power to grant leave to the applicant to change gender. In particular, the POHA, under which the Orders were made, did not empower the court to make an order granting leave for a change of gender of any of the parties to the proceedings. Accordingly, the Deputy Registrar did not have the power to make the Orders: at [13] and [14].

(2) Under the National Registration Act (Cap 201, 1992 Rev Ed) (“NRA”) and National Registration Regulations (1990 Rev Ed) (“NRR”), a change of gender on the register (and NRIC), would be a decision of the Executive (vis-à-vis the Commissioner of National Registration and registration officers), and not the courts: at [15].

(3) Under s 25 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”), the General Division of the High Court could give such orders in any civil proceedings in a subordinate court which seemed necessary to secure substantial justice. Such powers should be exercised sparingly and should only be exercised in exceptional cases where there was serious injustice and it was shown that there was something wrong in the decision that struck at its basis of an exercise of judicial power by the court below: at [16].

(4) The fact that the subordinate court had exercised power beyond its jurisdiction did not mean that the High Court's revisionary powers should be exercised. The touchstone remained serious injustice: at [18].

(5) The Orders were made in excess of the Deputy Registrar's powers, and would cause serious injustice to non-parties, such as the ICA, which would be confronted with having to consider the legal implications of the Orders. The Orders would also not be consonant with the principle of separation of powers. Accordingly, it was clear that the Orders ought to be set aside: at [20] and [21] to [23].

Case(s) referred to

Ang Poh Chuan v PP [1995] 3 SLR(R) 929; [1996] 1 SLR 326 (refd)

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

Jeff Chou Enterprise Co Ltd v Ban Choon Marketing Pte Ltd [2010] SGDC 13 (refd)

Ng Chye Huey v PP [2007] 2 SLR(R) 106; [2007] 2 SLR 106 (refd)

Oon Heng Lye v PP [2017] 5 SLR 1064 (refd)

PP v Lee Wei Zheng Winston [2002] 2 SLR(R) 800; [2002] 4 SLR 33 (refd)

PP v Nyu Tiong Lam [1995] 3 SLR(R) 788; [1996] 1 SLR 273 (refd)

PP v Quek Chin Chuan [2000] 2 SLR(R) 138; [2000] 3 SLR 10 (refd)

Redwood Tree Pte Ltd, The v CPL Trading Pte Ltd [2009] SGDC 204 (refd)

Russian Commercial and Industrial Bank v British Bank for Foreign Trade, Ltd [1921] 2 AC 438 (refd)

Salijah bte Ab Latef v Mohd Irwan bin Abdullah Teo [1995] 3 SLR(R) 233; [1996] 1 SLR 63 (refd)

Shahab Uddin Miah Borkot Ali Matbor v Kao Lee Aluminium Industrial Pte Ltd [2010] SGDC 151 (refd)

Tan Eng Hong v AG [2012] 4 SLR 476 (folld)

Facts

The applicant had commenced proceedings under s 12(1) of the Protection from Harassment Act (Cap 256A, 2015 Rev Ed) (“POHA”), seeking orders to protect the applicant from alleged acts of harassment committed by the respondents. As part of the proceedings before the District Court, the applicant filed a number of applications, and obtained three orders which gave rise to the present proceedings (“the Orders”). The first was to allow the applicant to change name by deed poll (“the December 2020 Order”). The second was to allow the applicant to change the gender pronoun used (“the March 2021 Order”). The third was to grant the applicant leave to change the gender of the applicant from “male” to “female” (“the April 2021 Order”). The applicant subsequently brought the April 2021 Order to the Immigration and Checkpoint Authority (“ICA”), asking for the change in gender to be reflected on the applicant's national registration identity card (“NRIC”).

On 7 June 2021, the deputy registrar (“Deputy Registrar”) formed the view that he had no power to make any order permitting or endorsing a change of gender, and brought all three Orders to my attention. I called for the record of proceedings, and invited submissions from both the applicant and the Attorney-General (“A-G”), to consider if any orders or directions needed to be made in the interests of justice. The applicant's arguments were that it would be prejudicial for the Orders to be set aside, as various individuals and organisations had already recognised the applicant as female. On the other hand, the A-G argued that the March 2021 Order was superfluous, and that the Orders were made without jurisdiction, factual basis, and were improper or an abuse of process.

Legislation referred to

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 400, 401

National Registration Act (Cap 201, 1992 Rev Ed) ss 4(1), 4(2)

National Registration Regulations (1990 Rev Ed) regs 10, 10(2)

Protection from Harassment Act (Cap 256A, 2015 Rev Ed) ss 12, 12(1), 19(1)

Rules of Court (2014 Rev Ed) O 109, O 109 r 2(7)(a), O 109 r 6

State Courts Act (Cap 321, 2007 Rev Ed)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 24, 25, 27, 27(2), 28(2), 80(3)

Applicant in person;

Evans Ng and Darshini Ramiah (Attorney-General's Chambers) for the non-party.

28 June 2021

Vincent Hoong J (delivering the judgment of the court ex tempore):

1 The hearing before me today concerns two orders made by a deputy registrar of the State Courts (the “Deputy Registrar”) in the context of proceedings in the District Court under s 12 of the Protection from Harassment Act (Cap 256A, 2015 Rev Ed) (“POHA”). These orders, which I will refer to collectively as “the Orders”, implicitly and expressly granted leave for the applicant's gender to be changed from male to female.

2 The Orders were subsequently brought to my attention by the Deputy Registrar in a letter dated 7 June 2021 when he formed the view that he had no power to make any order permitting or endorsing a change of gender, either for the purposes of the proceedings before him or otherwise. I called for the record of the proceedings under s 27 of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) to enable me to consider whether any orders or directions needed to be made in the interests of justice. Having considered the record as well as the submissions of the applicant and the Attorney-General (“A-G”), it is clear to me that the Orders were made without any legal basis and ought to be set aside.

Background

3 The proceedings in the District Court were commenced by the applicant under s 12(1) of the POHA. In those proceedings, the applicant seeks orders that, amongst other things, the respondents be prohibited from harassing the applicant, stalking the applicant using tracking devices, and...