Cheong Chun Yin v AG

JurisdictionSingapore
Judgment Date27 June 2014
Date27 June 2014
Docket NumberOriginating Summons No 25 of 2014
CourtHigh Court (Singapore)
Cheong Chun Yin
Plaintiff
and
Attorney-General
Defendant

Tay Yong Kwang J

Originating Summons No 25 of 2014

High Court

Administrative Law—Judicial review—Application for leave to commence judicial review proceedings—Whether application for leave to apply for prerogative orders could also include prayer for leave to apply for declaration—Order 53 Rules of Court (Cap 322, R 5, 2006 Rev Ed)

Administrative Law—Judicial review—Public Prosecutor's discretion to certify that person had substantially assisted Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore—Whether Public Prosecutor's decision was unconstitutional—Article 12 Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Administrative Law—Judicial review—Public Prosecutor's discretion to certify that person had substantially assisted Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore—Whether Public Prosecutor's exercise of discretion was reviewable on grounds of jurisdictional error of law—Sections 33 B (2) (b) and 33 B (4) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

The applicant, Cheong Chun Yin (‘the Applicant’), was convicted of an offence under s 5 (1) (a) read with s 5 (2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the MDA’) for being in possession of not less than 2,2726 g of diamorphine for the purpose of trafficking and sentenced to death. His appeal against sentence and conviction was dismissed by the Court of Appeal. On 14 November 2012, Parliament passed the Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012) (‘the Amendment Act’) which introduced a new s 33 B into the MDA. Pursuant to s 27 (6) of the Amendment Act, the Applicant was entitled to be re-sentenced in accordance with the new s 33 B. However, the Public Prosecutor (‘PP’) informed the Applicant's counsel that he would not be certifying that the Applicant had substantively assisted the Central Narcotics Bureau (‘CNB’) in disrupting drug trafficking activities within or outside Singapore pursuant to s 33 B (2) (b) of the MDA. Therefore the Applicant would not have satisfied the requirements of s 33 B (2) which he had to meet to invoke the court's jurisdiction to re-sentence him to life imprisonment as opposed to death.

The Applicant applied for leave under O 53 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (‘the ROC’) to commence judicial review proceedings against the PP's decision not to certify that he had substantively assisted the CNB in disrupting drug trafficking activities. The Applicant argued that the PP had committed jurisdictional errors of law in the manner in which he made his decision. In his application, the Applicant also included a prayer for leave to apply for a declaration that s 33 B (4) of the MDA did not prevent the court from considering whether the PP had acted ‘within his statutory authority or jurisdiction’. The Applicant also argued that the PP's decision violated Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Constitution’). The Attorney-General opposed the application.

Held, dismissing the application:

(1) An application under O 53 of the ROC for leave to apply for prerogative orders (ie, mandatory order, prohibiting order and/or quashing order) could also include a prayer for leave to apply for a declaration. However, a party could not apply for freestanding declaratory relief pursuant to O 53: at [26] and [27] .

(2) The decision as to whether to certify that the Applicant had substantively assisted the CNB in disrupting drug trafficking activities within or outside Singapore pursuant to s 33 B (2) (b) of the MDA was in the sole discretion of the PP. The PP's exercise of discretion could be challenged on the grounds of bad faith and malice which had to be proved by the Applicant. Unconstitutionality, although not expressly mentioned in s 33 B (4), was the only other ground of challenge open to the Applicant. There was no separate ground of jurisdictional error of law available to the Applicant: at [30] and [31] .

(3) The alleged errors of law amounted to no more than the Applicant's dissatisfaction over the way the CNB conducted its investigations. How the CNB decided to conduct its investigations in each case was not something which was within the purview of the courts under the statutory scheme in s 33 B unless the Applicant could show bad faith or malice on the part of the CNB which may then potentially taint the PP's decision: at [32] .

(4) In the context of executive actions, the equal protection clause in Art 12 was breached if there was a deliberate and arbitrary discrimination against a particular person. Arbitrariness implied a lack of any rationality. Although the discretion to issue the certificate of substantive assistance was a power conferred by statute as opposed to one conferred by the Constitution, in view of the high constitutional office of the Attorney-General as the PP, the courts should proceed on the basis that the PP exercised his power in accordance with law unless shown otherwise. The Applicant failed to provide any evidence that the PP deliberately and arbitrarily discriminated against him: at [36] and [37] .

Eng Foong Ho v AG [2009] 2 SLR (R) 542; [2009] 2 SLR 542 (folld)

Jeyaretnam Kenneth Andrew v AG [2013] 1 SLR 619, HC (folld)

Jeyaretnam Kenneth Andrew v AG [2014] 1 SLR 345, CA (folld)

Pang Siew Fum v PP [2011] 2 SLR 635 (refd)

PP v Ang Soon Huat [1990] 2 SLR (R) 246; [1990] SLR 915 (folld)

PP v Pang Siew Fum [2010] SGHC 40 (refd)

Ramalingam Ravinthran v AG [2012] 2 SLR 49 (refd)

Stansfield Business International Pte Ltd v Minister for Manpower [1999] 2 SLR (R) 866; [1999] 3 SLR 742 (refd)

Vellama d/o Marie Muthu v AG [2013] 4 SLR 1 (refd)

Yee Yut Ee, Re Application by [1977-1978] SLR (R) 490; [1978-1979] SLR 344 (refd)

Constitution of the Republic of Singapore (1985 Rev Ed,1999 Reprint) Art 12 (consd)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 33 B (2) (b) , 33 B (4) (consd) ;ss 5 (1) , 5 (1) (a) , 5 (2) , 7, 18 (2) , 33 B, 33 B (2) (a)

Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012) ss 27, 27 (6) , 27 (6) (a)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 53 (consd)

M Ravi (L F Violet Netto) for the applicant

Francis Ng, Chee Min Ping and Marcus Foo Guo Wen (Attorney-General's Chambers) for the respondent

.

Tay Yong Kwang J

Introduction

1 This matter, Originating Summons No 25 of 2014 (‘OS 25/2014’), is an application by Cheong Chun Yin (‘the Applicant’) for leave to commence judicial review proceedings against the Public Prosecutor (‘PP’). The application arose out of the PP's determination that the Applicant had not substantively assisted the Central Narcotics Bureau (‘CNB’) in disrupting drug trafficking activities within or outside Singapore (‘the negative substantive assistance determination’) and the PP's consequential decision not to certify to a court, pursuant to s 33 B (2) (b) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘MDA’), that the Applicant had substantively assisted the CNB in disrupting drug trafficking activities within or outside Singapore (‘the non-certification decision’). The Applicant sought leave to apply for:

(a) quashing orders in respect of both the negative substantive assistance determination and the non-certification decision;

(b) a mandatory order enjoining the PP to make a fresh determination on substantive assistance; and

(c) a declaration that s 33 (B) (4) of the MDA does not operate to ‘debar any inquiry by the Court that may be necessary for the Court to decide whether the Public Prosecutor has acted within his statutory authority or jurisdiction’.

2 The Attorney-General (‘the Respondent’) opposes the application. At the hearing on 11 April 2014, I dismissed the Applicant's leave application. The Applicant has filed an appeal against my decision and I now set out the grounds for my decision.

Background facts leading to OS 25/2014

3 On 16 June 2008, the Applicant and a female, Pang Siew Fum (‘Pang’), were arrested following surveillance conducted by the CNB. CNB officers observed the Applicant collecting a luggage bag from the Arrival Hall of Changi International Airport (‘the...

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