Han Hui Hui v AG

• Jurisdiction: Singapore
• Judge: Dedar Singh Gill J
• Judgment Date: 16 June 2022
• Docket Number: Originating Summons No 1313 of 2021
• Court: High Court (Singapore)

Han Hui Hui and others

and

Attorney-General

[2022] SGHC 141

Dedar Singh Gill J

Originating Summons No 1313 of 2021

General Division of the High Court

Administrative Law — Judicial review — Application for leave to commence judicial review of advisory and policy — Unvaccinated persons seeking judicial review of measures differentiating persons based on COVID-19 vaccination status — Whether advisory susceptible to judicial review — Whether prima facie case of reasonable suspicion shown for quashing orders — Whether declaratory relief could be granted if leave not given to seek quashing orders — Whether advisory and policy were unlawful, irrational and/or discriminatory — Whether unvaccinated persons had substantive legitimate expectation that their employment would not be at risk of termination because of their unvaccinated status — Whether unvaccinated persons had substantive legitimate expectation that Government would bear costs of their medical treatment for illnesses caused by COVID-19

Held, dismissing the application:

(1) The basis of judicial review lay in the rule of law. Discretionary powers held by the Executive were subject to scrutiny on the legality of their exercise. The role of a court in judicial review was distinct from its role as an appellate court. Its role was in determining the legality and constitutionality of the law or executive decision/action, not in evaluating the merits of the particular legislation or policy decision (ie, maintaining the legality-merits distinction). Although the court was able to review the decision-making process and consider whether a decision had been so unreasonable as to be irrational, it was not for the Judiciary to intervene in substantive matters of policy which fell squarely within the ambit of the Executive's role and power: at [20] to [23] and [124].

(2) To obtain leave to commence judicial review proceedings, the applicants had to show that: (a) the subject matter of the complaint was susceptible to judicial review; (b) they had sufficient interest in the matter; and (c) the materials before the court disclosed an arguable or prima facie case of reasonable suspicion in favour of granting the remedies sought: at [18].

(3) The court found that the October Advisory was not susceptible to judicial review as it was neither a policy directive, nor did it carry legal effect. It did not direct employers to terminate the employment of unvaccinated employees, but merely that employers could terminate their employment in accordance with their employment contract as a last resort if they were unable to perform their contracted work and other options were not feasible. It was not the source of any legal obligations to comply with the WVMs as it only reiterated the Government's announcement of the WVMs. The proposition that an advisory could be cloaked with the force of law because of its supposed misinterpretation by some employers was untenable. The October Advisory therefore could not be the subject of a quashing order: at [58] to [61].

(4) The Statistics adduced by the applicants were erroneous and did not assist to undermine the rationales underpinning the Unvaccinated Medical Bills Policy. The Death and CI Statistics were inaccurate and had been calculated based on certain assumptions. Even if the Death and CI Statistics were taken as correct, limited inference could be drawn from them. Being ratios of the raw counts of death and critical illnesses in the fully vaccinated population compared with the non-fully vaccinated population, the Death and CI Statistics did not account for the size of the underlying population and distorted the comparison. The actual statistics corresponding to the Death and CI Statistics showed that the non-fully vaccinated population experienced higher rates of death and critical illness due to COVID-19. The 10 April 2022 Statistics represented only a narrow group of non-fully vaccinated persons and pertained to a very limited timeframe. It would not be appropriate to see the 10 April 2022 Statistics in isolation: at [92], [93] to [95] and [111] to [113].

(5) The materials before the court did not disclose an arguable or prima facie case of reasonable suspicion in favour of granting the quashing order against the Unvaccinated Medical Bills Policy. The applicants failed to impugn the rationales for the Unvaccinated Medical Bills Policy with the Statistics, and therefore did not establish a prima facie case of reasonable suspicion for the quashing orders on the grounds of illegality and irrationality. The Statistics did not assist the applicants to discharge their evidential burden to show that they could be considered equally situated with fully vaccinated persons under Art 12(1), and the evidential burden did not shift to the Executive to provide justification for the differential treatment and its reasonableness. The court accepted the Attorney-General's submissions that there were valid grounds for differentiation between the applicants and the fully vaccinated. The applicants did not succeed on the Art 12(1) ground for want of evidence that they were equally situated with the fully vaccinated: at [115] to [117], [149], [150] and [164].

(6) Declarations sought under O 53 of the Rules of Court (2014 Rev Ed) (the “ROC”) were contingent on whether leave was granted to seek a prerogative order. If leave was granted, the court would consider whether the declaratory relief sought under the same O 53 application ought to be granted. Having dismissed the prayers for leave to seek the quashing orders against the Unvaccinated Medical Bills Policy and para 7(c) of the October Advisory, the prayers which applied for declarations that they were unlawful and/or irrational should be dismissed pursuant to O 53 r 1(1). The declarations sought in respect of the SLE Claims were not granted for the same reason: at [41], [169] and [170].

(7) Moreover, the declarations that the Unvaccinated Medical Bills Policy and para 7(c) of the October Advisory were unlawful and/or irrational lacked substantive basis. The court held that the Statistics adduced did not support any of the grounds of challenge – whether on illegality, irrationality or the Art 12(1) ground. The declarations were therefore not based on any recognisable legal rights, and could not be granted: at [171].

(8) The declarations sought in relation to the SLE Claims bore no merit. There were no unambiguous, unequivocal and unqualified representations which founded the SLE Claims. For the Medical Bills SLE, the adjustment in treatment of the unvaccinated was a return to the original healthcare financing co-payment plan, and there were no representations that the full bill subsidy for COVID-19 patients would remain. With the Employment SLE, the Government had never represented that vaccination status would not affect unvaccinated persons' employment status or their chances of finding employment. Assuming arguendo that there had been representations that the unvaccinated by choice (including the applicants) would receive the full subsidy for COVID-19 medical bills and face no differentiation in the workplace, the consequences which flowed did not amount to the grave and severe consequences of the nature contemplated in Tan Seng Kee v Attorney-General and other appeals[2022] 1 SLR 1347, which involved the loss of individual freedom: at [182] and [183].

Case(s) referred to

AG v Datchinamurthy a/l Kataiah [2022] SGCA 46 (refd)

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

Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582; [2006] 1 SLR 582 (refd)

Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525; [1988] SLR 132 (refd)

Comptroller of Income Tax v ACC [2010] 2 SLR 1189 (folld)

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

Dow Jones Publishing (Asia) Inc's Application, Re [1988] 1 SLR(R) 418; [1988] SLR 481 (refd)

Gobi a/l Avedian v AG [2020] 2 SLR 883 (refd)

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

Kang Ngah Wei v Commander of Traffic Police [2002] 1 SLR(R) 14; [2002] 1 SLR 213 (refd)

Kassam v Hazzard [2021] NSWSC 1320 (refd)

Lee Pheng Lip Ian v Chen Fun Gee [2020] 1 SLR 586 (refd)

Lines International Holding (S) Pte Ltd v Singapore Tourist Promotion Board [1997] 1 SLR(R) 52; [1997] 2 SLR 584 (refd)

Manjit Singh s/o Kirpal Singh v AG [2013] 2 SLR 1108 (refd)

Monsanto v Canada (Health) [2020] FC 1053 (refd)

Nagaenthran a/l K Dharmalingam v PP [2019] 2 SLR 216 (folld)

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

R (Beer) v Hampshire Farmers' Markets Ltd [2004] 1 WLR 233 (refd)

R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 (refd)

R (Peters) v Secretary of State for Health and Social Care [2021] EWHC 3182 (Admin) (refd)

R v Secretary of State for Health, ex parte Eastside Cheese Co [1999] 3 CMLR 123 (refd)

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

Saravanan Chandaram v PP [2020] 2 SLR 95 (folld)

SGB Starkstrom Pte Ltd v Commissioner for Labour [2016] 3 SLR 598 (refd)

Syed Suhail bin Syed Zin v AG [2021] 1 SLR 809 (folld)

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

Tan Hon Leong Eddie v AG [2022] 3 SLR 639 (refd)

Tan Seet Eng v AG [2016] 1 SLR 779 (folld)

Tan Seng Kee v AG [2022] 1 SLR 1347 (distd)

UKM v AG [2019] 3 SLR 874 (folld)

Vellama d/o Marie Muthu v AG [2012] 4 SLR 698, HC (refd)

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

Wham Kwok Han Jolovan v PP [2021] 1 SLR 476 (folld)

Wong Keng Leong Rayney v Law Society of Singapore [2006] 4 SLR(R) 934; [2006] 4 SLR 934 (refd)

Facts

The applicants challenged two pronouncements by the Government in response to the COVID-19 pandemic. These were a policy decision announced on 8 November 2021 that COVID-19 patients who were...