Chng Suan Tze v Minister of Home Affairs and Others and other appeals

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
Judgment Date08 December 1988
Date08 December 1988
Docket NumberCivil Appeals Nos 63, 64, 65 and 81 of 1988

[1988] SGCA 16

Court of Appeal

Wee Chong Jin CJ

,

L P Thean J

and

Chan Sek Keong J

Civil Appeals Nos 63, 64, 65 and 81 of 1988

Chng Suan Tze
Plaintiff
and
Minister for Home Affairs and others and other appeals
Defendant

Anthony Paul Lester QC and Roslina Baba (Teo, Lai & Lee) for the appellant in CA 81/1988

Geoffrey Ronald Robertson QC and George Lim (Wee Tay & Lim) for the appellant in CA 64/1988

Geoffrey Ronald Robertson QC and Rajan Nair (Rajan Nair) for the appellant in CA 65/1988

Geoffrey Ronald Robertson QC and Peter Low (S K Chua & Peter Low) for the appellant in CA 63/1988

S Tiwari, Soh Tze Bian and Joyce Huen (Attorney General's Chambers) for the respondent.

A-G of St Christopher, Nevis and Anguilla v John Joseph Reynolds [1980] AC 637 (folld)

Al-Afifi's Application for Habeas Corpus, Re (28 August 1987) (refd)

Associated Provincial Picture Houses Limited v Wednesbury Corp [1948] 1 KB 223 (refd)

Athappen a/l Arumugam v Menteri Hal Ehwal Dalam Negeri, Malaysia [1984] 1 MLJ 67 (not folld)

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (refd)

De Souza Kevin Desmond v Minister for Home Affairs [1988] 1 SLR (R) 464; [1988] SLR 517 (refd)

Greene v Secretary of State for Home Affairs [1942] AC 284 (not folld)

Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 (refd)

Inland Revenue Commissioners v Rossminster Ltd [1980] AC 952 (folld)

Karam Singh v Menteri Hal Ehwal Dalam Negeri (Minister of Home Affairs), Malaysia [1969] 2 MLJ 129 (not folld)

Karpal Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1988] 1 MLJ 468 (not folld)

Katofa v Administrator-General for South West Africa1985 (4) SA 211 (SWA) (folld)

Lau Seng Poh v Controller of Immigration [1985-1986] SLR (R) 180; [1984-1985] SLR 650 (refd)

Lee Mau Seng v Minister for Home Affairs [1971-1973] SLR (R) 135; [1969-1971] SLR 508 (not folld)

Liew Sai Wah v PP [1968-1970] SLR (R) 8; [1969] 1 AC 295 (folld)

Liversidge v Sir John Anderson [1942] AC 206 (not folld)

Liyanage v The Queen [1967] 1 AC 259 (refd)

Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189 (refd)

Middleweek v Chief Constable of Merseyside [1992] 1 AC 179; (1985) Times LR 489 (refd)

Minister of Home Affairs v Austin (1987) LRC (Const) 567 (folld)

Nakkuda Ali v Jayaratne [1951] AC 66 (folld)

Ong Ah Chuan v PP [1979-1980] SLR (R) 710; [1980-1981] SLR 48 (folld)

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (refd)

R v Ealing London Borough Council,ex parte Times Newspapers Ltd (1987) 85 LGR 316 (refd)

R v Secretary of State for the Home Department, ex parte Khawaja [1984] AC 74 (folld)

R v Secretary of State for Home Department, ex parte Benwell [1985] QB 554 (refd)

R v Secretary of State for the Home Department, ex parte Ruddock [1987] 1 WLR 1482; [1987] 2 All ER 518 (refd)

R v Secretary of State for the Home Department, ex parte Zamir [1980] AC 930 (refd)

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 (refd)

Tan Sri Raja Khalid bin Raja Harun, Re [1988] 1 MLJ 182 (refd)

Teh Cheng Poh v PP [1980] AC 458; [1979] 2 MLJ 50 (refd)

Teo Soh Lung v Minister for Home Affairs [1988] 2 SLR (R) 30; [1988] SLR 676 (refd)

Theresa Lim Chin Chin v Inspector General of Police [1988] 1 MLJ 293 (not folld)

Wheeler v Leicester City Council [1985] AC 1054 (refd)

Wong Mann Tung, Re [1988] 1 MLJ 286 (not folld)

Yeap Hock Seng v Menteri Hal Ehwal Dalam Negeri, Malaysia [1975] 2 MLJ 279 (not folld)

Young v Bristol Aeroplane Co Ltd [1944] KB 718 (refd)

Zamora, The [1916] 2 AC 77 (refd)

Constitution of the Republic of Singapore (1985Rev Ed)Arts 9, 12 (1), 21 (1) (consd);Arts 13, 14,93, 149,151 (3)

Internal Security Act (Cap 143, 1985Rev Ed)ss 8, 10 (consd);ss 11 (1),11 (2) (b), 48,74 (1)

Interpretation Act (Cap 1, 1985Rev Ed)ss 34, 35

Republic of Singapore Independence Act (1985Rev Ed)ss 11,13 (1)

Supreme Court of Judicature Act1969 (Act 24 of1969)

Bill of Rights1688 (c 2) (UK)

Constitution (State of St Christopher, Nevis and Anguilla)ss 15, 16,35

Defence (General) Regulations1939 (UK)reg 18B

Emergency Powers (Maintenance of Law and Order) Regulations 1983 (Zimbabwe)s 17 (1)

Emergency Powers Regulations 1967 (State of St Christopher, Nevis and Anguilla)reg 3 (1)

Habeas Corpus Act1816 (c 100) (UK) s 3

Immigration Act1971 (c 77) (UK) Schedule 2paras 8-11,16 (2)

Internal Security Act1960 (Act 82 of 1960,Revised-1972) (M'sia) ss 8,10, 47,73 (1)

National Security Act1980 (India)s 15

Administrative Law–Administrative detention–Judicial review of–Arrest and detention under Internal Security Act (Cap 143, 1985 Rev Ed)–Detainees released after suspension of operation of detention order–Rearrest and redetention of detainees following revocation of suspension direction–Detainees applying for leave to issue writ of habeas corpus–Whether exercise of discretionary power under ss 8 and 10 Internal Security Act subject to objective test and reviewable by court of law–Whether burden on Executive to produce evidence of President's satisfaction–Whether rearrest and redetention lawful–Whether detainee's detention rendered unlawful by conditions of detention–Sections 8 (1) and 10 Internal Security Act (Cap 143, 1985 Rev Ed)–Administrative Law–Judicial review–Principles involved in reviewing preventive detention cases involving national security issues–Whether subjective or objective test applicable to review of exercise of discretions under ss 8 and 10 Internal Security Act–Whether discretions under ss 8 and 10 Internal Security Act fall within precedent fact category–Whether burden of proving exercise of discretion wrong on detainee or detaining authority–Whether principle of proportionality established as separate ground for review of discretions in addition to grounds of illegality, irrationality or procedural impropriety–Constitutional Law–Fundamental liberties–Right to life and personal liberty–Arrest and detention under ss 8 and 10 Internal Security Act–Whether adoption of objective test to discretion in ss 8 and 10 Internal Security Act inconsistent with Constitution of the Republic of Singapore (1985 Rev Ed)–Articles 9, 12 (1) and 21 (1) Constitution of the Republic of Singapore (1985 Rev Ed)

The four appellants, Chng Suan Tze, Teo Soh Lung, Kevin De Souza and Wong Souk Yee were arrested in 1987 for being involved in a Marxist conspiracy to subvert and destabilise the country to establish a Marxist state, and were issued with detention orders under s 8 (1) (a) of the Internal Security Act (Cap 143, 1985 Rev Ed) (“the Internal Security Act”). The appellants were then served with statements pertaining to the grounds and allegations of fact on which their detention orders were based. Apart from Wong Souk Yee, the other appellants submitted written representations to the advisory board. However, the advisory board did not recommend that the appellants be released from the detention orders.

Nevertheless, on 26 September 1987, the Minister of Home Affairs directed that the detention orders in respect of the appellants be suspended, subject to certain conditions. After the detention orders had been conditionally suspended, the appellants gave a joint press statement to state, amongst others, a denial that they were Marxist conspirators, and that they had been ill-treated while they were detained. Consequently, the suspension of the detentions orders against the appellants was revoked. The appellants were therefore rearrested.

The appellants then applied for leave to issue writs ofhabeas corpus. Their respective applications were dismissed by the High Court. The appellants appealed against this decision, arguing that: (a) the detention order which the Minister makes under s 8 (1) of the Internal Security Act depended on the President being satisfied that it was necessary to do so for one of the purposes specified therein, and that the burden was on the respondents to produce evidence of the President's satisfaction; (b) the exercise of the discretionary power under ss 8 and 10 of the Internal Security Act was subject to an objective test and was thus reviewable by a court of law, and to discharge its burden, the Executive had to satisfy the court that there were objective facts in existence which justified the Executive's decision; (c) since s 10 of the Internal Security Act did not give any power to rearrest and redetain following the making of the revocation order, the redetention of the appellants was therefore unlawful; and (d) even if Teo Soh Lung's detention was originally lawful, it had been rendered unlawful by the conditions of her detention.

The Minister (the respondents) argued that s 8 (1) contemplated the subjective satisfaction of the President and this satisfaction was not justiciable. In support of this argument, the respondents relied on the Federal Court of Malaysia's 1969 decision in Karam Singh [1969] 2 MLJ 129 which applied a subjective test in the judicial review of administrative decisions.

Held, allowing the appeals:

(1) It was a significant feature of s 8 (1) of the Internal Security Act that two different persons were involved; the discretion whether it was necessary to detain someone for one of the specified purposes was exercisable by the President, but where he was satisfied that it was necessary to do so, the actual order was made by the Minister who in so doing exercised no discretion and merely performed an administrative function. It was true that under Art 21 (1) of the Constitution of the Republic of Singapore (1985 Rev Ed), the President acted in accordance with the advice of the Cabinet or of a minister acting under the general authority of the Cabinet. However, that did not detract from the fact that under s 8 (1) of the Internal Security Act, the President's...

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63 cases
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    ...for the respondents. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (distd) Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR (R) 525; [1988] SLR 132 (refd) Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (folld) Endell Thomas v A-G of Tr......
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