Comptroller of Income Tax v ARW and another (Attorney-General, intervener)

• Court: High Court (Singapore)
• Judge: Aedit Abdullah JC
• Judgment Date: 25 July 2017
• Neutral Citation: [2017] SGHC 180
• Citation: [2017] SGHC 180
• Docket Number: Suit No 350 of 2014 (Summonses Nos 940 and 987 of 2017)
• Hearing Date: 25 April 2017,26 April 2017
• Published date: 11 December 2018
• Plaintiff Counsel: Ang Cheng Hock SC, Tan Ruyan Kristy, Lim Jun Rui, Ivan and Mak Sushan, Melissa (Allen & Gledhill LLP)
• Defendant Counsel: Davinder Singh SC, Jaikanth Shankar, Fong Cheng Yee, David and Shirleen Low (Drew & Napier LLC),Aurill Kam and Jamie Pang (Attorney-General's Chambers)
• Subject Matter: Constitutional Law,Attorney-General,Role,Civil Procedure,Parties,Joinder,Further arguments,Extension of time,Further evidence,Privileges,Inspection by the court

Aedit Abdullah JC: Introduction

Following an earlier decision of this Court granting the 1st Defendant’s application for discovery against the Plaintiff of various categories of documents, the Plaintiff sought leave to: (a) request for further arguments out of time, and (b) adduce further affidavits as evidence in support of those further arguments. In addition, the Attorney-General (“the AG”) sought leave to intervene in the summonses for discovery, further arguments, further evidence, and all related applications and appeals. Having heard and considered the arguments, I allow the AG’s application to intervene. I also allow the Plaintiff’s application for an extension of time to request further arguments, and part of his application to adduce further evidence in support thereof.

Background

In Summons No 1465 of 2015, the 1st Defendant sought discovery of various documents relating to an investigatory audit conducted by the Plaintiff’s officers against the 1st Defendant and a related company (“the Discovery Application”). The Plaintiff resisted the application primarily on the basis of legal professional privilege, invoking both legal advice privilege and litigation privilege. On 31 January 2017, I issued a judgment granting discovery, finding that neither legal advice privilege nor litigation privilege was made out: see Comptroller of Income Tax v ARW and another [2017] SGHC 16 (“the Judgment”). In the course of the discussion in the Judgment, it was mentioned (at [52]) that the Plaintiff’s real claim appeared to be a form of privilege protecting the fruits of the audit, review and related internal discussions conducted by law enforcement agencies, but that the Plaintiff had not invoked either s 125 or s 126 of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”), and that neither would seem in any event to be made out.

On 9 February 2017, following the release of my judgment in respect of the Discovery Application, the Plaintiff filed an application for leave to appeal, vide, Summons No 661 of 2017 (“the Leave to Appeal Application”). On 27 February 2017, the Plaintiff filed a Notice of Change of Solicitor. The newly appointed solicitors later informed the Court that they would take over conduct of only this discovery application and all related applications and appeals; the substantive matter remains in the conduct of the former solicitors.

On 1 March 2017, the Plaintiff filed Summons No 940 of 2017, in which it sought leave to file its request for further arguments in the Discovery Application out of time, and to adduce two affidavits in support of the Discovery Application and the Leave to Appeal Application (“the Further Arguments Application”). The further arguments sought to be made related to: (a) public interest privilege under s 126(2) of the EA, (b) official secrecy under s 6(3) of the Income Tax Act (Cap 134, 2008 Rev Ed) (“ITA”), and (c) legal professional privilege. The two affidavits are from: (a) Mr Tan Tee How, who is the Commissioner of Inland Revenue, the Chief Executive Officer of the Inland Revenue Authority of Singapore (“IRAS”) and the Comptroller of Income Tax, deposing to the injury and prejudice that would be caused to the public interest if disclosure of the documents concerned were to be ordered, and (b) Ms Christina Ng Sor Hua (“Ms Ng”), an officer of the IRAS, providing the background facts relating to the internal audits previously conducted by IRAS in relation to the Defendants’ tax avoidance arrangements.

On 3 March 2017, the AG filed Summons No 987 of 2017 for leave to intervene in the Discovery Application, the Leave to Appeal Application, the Further Arguments Application, and all related applications and appeals (“the Intervention Application”). The main thrust of its application was that the AG, as the guardian of the public interest, is obliged and entitled to intervene in these applications to argue its position on the issue of public interest privilege.

The various matters created a knot of inter-related applications. The better view may be that, putting aside the Leave to Appeal Application, the Intervention Application must be logically subsequent to the Further Arguments Application: if there are no further arguments, there would be nothing to intervene in. But the AG also sought to be joined in the Further Arguments Application on the basis that it had an obligation and entitlement to protect the public interest and thus desired the further arguments to be made. One option would have been to leave matters to the Court of Appeal. However, in the interests of efficiency, I considered that it would be best to cut this Gordian knot by taking all the matters – aside from the Leave to Appeal Application – in hand at the same time. Otherwise, taking the matters in a sequential manner as described above, while logical, would prolong these interlocutory proceedings in a suit that had itself arisen out of even earlier litigation (see Comptroller of Income Tax v AQQ and another appeal [2014] 2 SLR 847).

Issue 1: The Intervention Application

Taking first the Intervention Application, the contention was primarily between the AG and the 1st Defendant; the Plaintiff did not take issue with the intervention.

The AG’s arguments

The AG clarifies that it does not seek to intervene in the suit proper, but merely in the three discovery-related interlocutory applications filed in this suit and related applications or appeals. The AG’s primary concern is to be heard on the issue of public interest privilege under s 126 of the EA. According to the AG, its role as the guardian of the public interest entitles and obliges it to intervene in private litigation where issues of public interest are at stake. In particular, as Parliament has expressly recognised, the AG has a unique responsibility with respect to public interest privilege and the operation of s 126 of the EA.

In respect of the issue of standing to intervene in private litigation, the AG argues that it is entitled to do so if issues of public interest are at stake, citing a series of English cases: Attorney-General v Blake [1998] 2 WLR 805; Gouriet v Union of Post Office Workers and Others [1978] AC 435; Adams v Adams [1970] 3 WLR 934; Rio Tinto Zinc Corporation and Others v Westinghouse Electric Corporation [1978] AC 547.

In particular, the AG has a “unique responsibility” in respect of the law on public interest privilege: R v Chief Constable of West Midlands Police, Ex parte Wiley [1995] 1 AC 274 (“ex p Wiley”) at 287H. This responsibility entailed a legal entitlement and duty on the part of the AG to intervene in proceedings where it is in the public interest for confidentiality of the relevant documents to be safeguarded. In England, a Minister of the Crown is recognised as being the most appropriate person to assert this public interest: R v Lewes Justices, Ex parte Secretary of State for Home Department [1973] AC 388 (“R v Lewes Justices”). Further, where injury to the public interest could arise from disclosure and the Crown is not a party, the court should give the Attorney-General an opportunity to intervene before disclosure is ordered: Burmah Oil Co Ltd v Governor and Company of the Bank of England and Another [1980] AC 1090 (“Burmah Oil”). In Singapore, speeches at the Second Reading of the Evidence (Amendment) Bill in 2003 which considered the enactment of the present s 126 showed that Parliament contemplated a central role for the AG, as the custodian of the public interest, in the assertion of public interest privilege.

On the facts, the AG’s intervention is appropriate. The documents concerned are the internal tax assessment and investigatory audit documents created by the officials of the IRAS in the course of their official duties. There has not been any determinative ruling by local courts on the availability of public interest privilege in such a situation. The Court’s interpretation of s 126 will affect not only IRAS but also the Government and other organisations operating under the Official Secrets Act (Cap 213, 2012 Rev Ed). Furthermore, the AG, who assessed the documents only after the release of the Judgment, has concluded that public interest would be injured by the disclosure of the documents concerned, and should thus be heard on the matter.

In respect of the Court’s power to allow an intervention, the relevant provisions here are O 15 r 6(2)(b) and O 92 r 4 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”). Under O 15 r 6(2)(b), the Court has a wide discretion, which should be exercised with the aim of allowing all those having a legitimate interest in the subject matter of the proceedings to have the opportunity to be heard: Tan Yow Kon v Tan Swat Ping and others [2006] 3 SLR(R) 881 at [40]. As the AG has the responsibility of safeguarding the public interest, the issue of whether public interest privilege applies must be determined not just between the Plaintiff and 1st Defendant, but also in respect of the AG. Therefore, allowing the intervention will ensure that all interested parties are heard at the same time on the same issue. This would allow for an effectual and complete determination and adjudication (O 15 r 6(2)(b)(i)), and would be just and convenient (O 15 r 6(2)(b)(ii)). Intervention can also be ordered by the Court through the exercise of its inherent powers under O 92 r 4.

In respect of the scope of the proposed intervention, the AG submits that it is appropriate to seek intervention in the Discovery Application, the Further Arguments Application, and the Leave to Appeal Application, as they are all applications that may touch on the assertion of public interest privilege. An amendment was also sought to clarify that the AG may, if necessary, file any application or appeal with regard to these applications.

The 1st Defendant’s arguments

The 1st Defendant’s arguments focus primarily on the purported non-satisfaction of...