AuthorLAU Kwan Ho LLB (National University of Singapore), LLM (New York University); Advocate and Solicitor (Singapore); Assistant Professor of Law, School of Law, Singapore Management University.
Publication year2019
Published date01 December 2019
Date01 December 2019
I. Introduction

1 The Court of Appeal sits literally and figuratively at the apex of the Singapore judiciary. It feeds on a varied diet of cases. Its constitution is a healthy mix of permanent members – the Chief Justice, the Vice President, the judges of appeal – and other High Court judges who sit ad hoc at the Chief Justice's request. Litigants before that court often see two or three austere faces bearing down on them – or at least, that was so until recently. Now they increasingly have to field questions from an attacking quintet. The five-judge panel has made its return in the Court of Appeal.

2 Singapore, separating from Malaysia, became an independent republic in 1965. By a historical oddity its judiciary did not dissociate fully from the Malaysian court system until 1970. That was when the Court of Appeal and the Court of Criminal Appeal were established, in place of the Federal Court, as the topmost judicial tribunals in Singapore. In July 1993 the two courts were merged into a single Court of Appeal with both civil and criminal jurisdiction. All this while, one thing did not change. It was that but a maximum of three judges would sit to hear the case. Often it would be a trio, possibly a duo where the case related to some interlocutory or procedural matter.

3 A peculiar event then occurred in August 1993. A five-judge panel of the Court of Appeal was convened to decide a criminal appeal.1

By all accounts, it was the first time the court (by whatever name called) had constituted itself in a quintet since the founding of the nation. Scarcely had the reverberations settled when another criminal matter, this time a reference on certain questions of law, reached the Court of Appeal; again, it sat five strong to hear the case.2 This marked the second time a full hand of judges decided a matter in that court.

4 Nearly two decades would pass without another quinary Court of Appeal being convened in Singapore. In January 2014, Sundaresh Menon CJ indicated that that court would freshly explore the prospect of constituting five-judge panels for selected cases of jurisprudential significance, so that difficult or unsettled issues which arose were resolved with the benefit of the collective wisdom and insight of a larger pool of judges.3 Within two months an expanded five-member court would be convened to hear a criminal appeal.4 Since then, 34 other written decisions have been issued by a jumbo Court of Appeal, as at the end of 2018. The present article first provides a short background of the expanded court in common law systems, followed by an analysis of the cases in Singapore with a view to ascertaining some trends in the summoning of an expanded panel here. Observations are then offered as regards the possible operation and further refinement of the Singapore practice in future cases, in the light of the experiences of other Commonwealth jurisdictions.

II. Background

5 Apex courts in the common law world typically arrange themselves into one of two models in the disposal of cases. The first is the en banc court, where cases are ordinarily heard and decided by all of the permanent members appointed to that court. The New Zealand Supreme Court and the US Supreme Court are examples of this. The

second model is the court which sits generally in panels, each of which is composed of a subset of the court's total permanent membership. The top courts in Singapore, Australia, Canada and the UK utilise this model.

6 To these default positions there exist a variety of exceptions. Most will be discussed here by way of overview only, with the remainder of this article to focus on one particular exceptional situation.

7 For a court that sits en banc, one exception is that it need not always sit with the full complement of judges. While the usual practice in the US Supreme Court is for all nine justices to sit to hear cases, the quorum for the court to be duly constituted is six justices.5 It is rare but not unheard of for that court to sit in a panel smaller than nine; the common instances are where a permanent justice has to recuse himself or herself, or has retired or passed away, and leaves a temporary vacancy in the court.

8 A second exception is that even a court in the en banc tradition may not always sit with a permanent membership. The quorum in the New Zealand Supreme Court is five judges.6 Currently only five permanent judges have been appointed. Occasionally, one or more of them cannot hear a case owing to recusal or other circumstances. The solution in New Zealand is that any temporary gap will be filled by acting judges (who are retired Supreme Court or Court of Appeal judges) functioning in a supernumerary role.7

9 Another exception, one that potentially applies to both models, is that a reduced number of judges can decide on limited categories of matter. These include leave to appeal applications, appeals against interim, interlocutory or ancillary orders and the making of case management orders. An efficient allocation of judicial resources is usually cited as the reason for having them heard and decided by a smaller number of judges. The temptation to label these as non-substantive matters should be resisted given that they may have very real effects on the disposal of any given case; it might be better to

classify them imperfectly as proceedings of an ancillary, interim or interlocutory nature.

10 The last exception covered here, and which is observed only in those courts which do not sit en banc, is that the usual size of the panel may be enlarged on a suitable occasion. Any expansion is subject to contrary legislation – a common limitation is that there must still be an odd number of judges – but after that it is usually left to the court itself whether to puff up, so to speak, for the hearing and disposal of specific cases. It is this particular scenario with which the present article is concerned.

III. Trends

11 Certainly there is no doubt in Singapore that a sitting Court of Appeal may under legislation expand to five or more members. The chief authorising provision is s 30(1) of the Supreme Court of Judicature Act,8 which reads:

The civil and criminal jurisdiction of the Court of Appeal shall be exercised by 3 or any greater uneven number of Judges of Appeal.

Paragraph 85A of the Supreme Court Practice Directions then returns a discretion to the Court of Appeal itself to determine, as and when appropriate, whether to convene a panel of five or any greater uneven number of judges. Yet other provisions and instruments are germane in setting out the Chief Justice's discretion to constitute an expanded court.9 (A third formulation exists but that applies only in a choice between a two- or three-judge panel for the hearing of certain specified interlocutory or non-final appeals and applications; here it is the first instance judge or a Judge of Appeal who should resolve any confusion or uncertainty as to the appropriate size of the panel.)10 The convening of an enlarged panel being therefore a judicial practice, it would be useful in the first instance to understand how the Singapore judiciary perceives its utility.

12 The clearest expression has been the statement of Menon CJ in January 2014 cited above. It appears to be a guide and the words should not be read strictly like a statutory directive. They mention three criteria against which a case might be evaluated for appropriateness of hearing by an enlarged court: jurisprudential significance, difficulty and unsettledness. It is not told immediately whether the first criterion (which can appear to be an umbrella category) overlaps wholly or in part with the second or third, or if it can form a separate category of cases on its own – for example, a case might not raise particularly difficult or unsettled issues but could conceivably be of legal significance, such as where the court is asked to construe a newly enacted statute of relatively broad application. Each category is also capable of individual application without reference to the other categories, but conversely this should not perhaps automatically discount the case in which partial elements of the various criteria are all present to make it an appropriate one for hearing by a fuller court.

13 In similar vein but with comparatively more detail are the guides published by the UK Supreme Court, the High Court of Australia and the New Zealand Court of Appeal regarding the convocation of enlarged panels. In the UK, five criteria have been specified: (a) if the court is being asked to depart, or may decide to depart, from a previous decision; (b) a case of high constitutional importance; (c) a case of great public importance; (d) a case where there is conflict between decisions in the Privy Council, the House of Lords and/or the Supreme Court; and (e) a case raising an important point in relation to the European Convention for the Protection of Human Rights and Fundamental Freedoms11 (“ECHR”).12 In Australia, the categories are not dissimilar, namely, those cases: (a) which involve interpreting the federal constitution; (b) where the court may be invited to depart from one of its previous decisions; or (c) where the court considers the principle of

law involved to be one of major public importance.13 For New Zealand, the main criteria are where: (a) the establishment or revision of sentencing guidelines is proposed; or (b) the appeal involves issues of evidence, procedure or practice of general application or some other issue which will be of major significance to other cases, particularly where there is no right to apply to the New Zealand Supreme Court for leave to appeal.14

14 It will be seen that the New Zealand criteria are more specific, whereas the UK and Australian positions overlap in some areas with the criteria in Singapore but are wider: they include cases that are of great public importance or raise an important point relating to the ECHR...

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