Lim Tean v Attorney-General

• Jurisdiction: Singapore
• Judge: Ang Cheng Hock J
• Judgment Date: 08 December 2020
• Neutral Citation: [2020] SGHC 270
• Published date: 11 December 2020
• Docket Number: Originating Summons No 1044 of 2020
• Year: 2020
• Hearing Date: 05 November 2020
• Plaintiff Counsel: Ravi s/o Madasamy (Carson Law Chambers)
• Citation: [2020] SGHC 270
• Defendant Counsel: Khoo Boo Jin, Joel Chen, Ailene Chou and Ashley Ong (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Judicial review,Administrative Law,Leave

Ang Cheng Hock J:

The plaintiff, Mr Lim Tean, is a lawyer and opposition politician who is currently the subject of two criminal investigations conducted by the Singapore Police Force. The defendant is the Attorney-General (“AG”). The plaintiff filed Originating Summons No 1044 of 2020 (“OS 1044”) for leave under O 53 r 1(b) of the Rules of Court (Cap 322, R5, 2014 Rev Ed) (“ROC”) to commence judicial review to seek various remedies against the police. Essentially, the plaintiff seeks to prevent the police from continuing the two investigations against him. At the conclusion of the hearing, I dismissed the plaintiff’s application because it was without any merit and I provided parties with brief reasons for my decision. I elaborate on those grounds below.

Background facts

As stated, the plaintiff is currently the subject of two criminal investigations (“the investigations”). The first is conducted by Investigation Officer Desmond Toh (“IO Toh”) of the Commercial Affairs Department (“CAD”) of the Singapore Police Force. It concerns the alleged commission by the plaintiff of the offence of criminal breach of trust under s 409 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) (“CAD investigations”). This is because the plaintiff had allegedly misappropriated a sum of S$30,000 which he received from AXA Insurance Pte Ltd (“AXA Insurance”) on behalf of one of his former clients, Mr Suresh Kumar s/o A Jesupal (“Mr Kumar”).

This sum of S$30,000 was part of a larger sum of S$50,000 which the defendant in DC/DC 387/2015 (“DC 387”), Mr Guo Nengqing (“Mr Guo”), was ordered to pay Mr Kumar as damages. The plaintiff had represented Mr Kumar as counsel in DC 387, which was a motor accident claim. Mr Kumar had been injured in an accident which was caused entirely by the negligence of Mr Guo. In the course of DC 387, the plaintiff was replaced by Mr Joseph Chen (“Mr Chen”), who has his own law firm, as the lawyer for Mr Kumar. Nevertheless, it is said that AXA Insurance, the insurer for Mr Guo, made the payment of the S$30,000 to the plaintiff’s firm even though they were no longer the solicitors on record. Mr Kumar claims that, to date, he has not received this sum of S$30,000 from the plaintiff. Mr Chen then made a complaint to the police, on behalf of Mr Guo, about the alleged criminal breach of trust of the S$30,000 by the plaintiff.¹

The second investigation is conducted by Investigating Officer Hannah Cheong (“IO Cheong”) of the police’s Central Division regarding alleged unlawful stalking under s 7(1) read with s 7(6) of the Protection from Harassment Act (Cap 256A, 2015 Rev Ed) (“POHA”) by the plaintiff against his former employee (“POHA investigations”). The complainant’s allegation is that the plaintiff had invited her for dinner and drinks at his home and persistently addressed her using inappropriate terms such as “darling” and “baby”, even after she told him that she felt uncomfortable with this.²

On 23 September 2020, IO Toh and IO Cheong made a telephone call to the plaintiff together to inform him that he was required to attend the CAD’s office on 28 September 2020 to answer questions in relation to suspected offences of criminal breach of trust and unlawful stalking. The plaintiff stated that he would be unable to attend any interview until after 9 October 2020. IO Toh informed the plaintiff that he would nevertheless be writing to the plaintiff to require him to attend an interview on 28 September 2020, and that the plaintiff should write in formally if he wished to request to reschedule the interview. Later that day, IO Toh duly wrote to the plaintiff to fix the interview at CAD’s office on 28 September 2020 at 9.00am.³

On 27 September 2020, the plaintiff’s counsel (by which I am referring to Mr Ravi s/o Madasamy) emailed a letter to IO Toh (copying IO Cheong) to state, inter alia, that the plaintiff had “no intention of turning up for any interview” because CAD was “investigating trumped up charges against [the plaintiff] which [were] politically motivated” and “in furtherance of the Minister’s political agenda”.⁴ No mention was made as to why the investigation was said to be “politically motivated”, nor was there any mention as to which Minister was being referred to.

On 28 September 2020, the plaintiff did not attend the CAD’s office for the scheduled interview. Instead, on the same day, IO Toh received another letter from the plaintiff’s counsel (which was copied to IO Cheong) stating, inter alia, that “the subject matter of the monies is before the State Court[s]” and that any steps on IO Toh’s part to “compel” the plaintiff to give a statement “would go against the due administration of justice”. This was a reference to a suit that was pending before the Magistrate’s Court (described below at [27]). IO Toh replied that afternoon to state that they would respond shortly.⁵

On 30 September 2020, IO Toh received another letter from the plaintiff’s counsel (copying IO Cheong) which complained that Mr Chen, who is Mr Kumar’s present lawyer, had “trespassed” on the plaintiff’s office and shouted at his staff.⁶

On 1 October 2020, IO Toh sent his response to the plaintiff’s counsel (copying IO Cheong) to clarify that the CAD was investigating an offence under s 409 of the Penal Code, while Central Division was investigating an offence under s 7(1) of the POHA. IO Toh rejected “any assertion that the investigations [were] politically motivated”. IO Toh also noted the plaintiff’s position not to attend any interviews with the police. IO Toh stated that the police have the “responsibility to investigate” the allegations and will “take all necessary steps to do so”.⁷

Since the plaintiff, through his counsel, had explicitly stated that he did not intend to turn up for any interviews with the police, the CAD assessed that it was necessary to arrest the plaintiff pursuant to s 64(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). CAD officers duly arrested the plaintiff on 2 October 2020 at around 10.40am at the plaintiff’s office and brought the plaintiff back to the Police Cantonment Complex. IO Toh then attempted to interview the plaintiff regarding the CAD investigations, but the plaintiff did not, according to IO Toh, answer any of his questions.⁸

At about 4.03pm on the same day, IO Toh offered the plaintiff bail at S$30,000 with one surety, on condition that his passport be impounded as part of the bail conditions. The plaintiff agreed to the bail conditions. The plaintiff was also allowed phone calls to make arrangements for a bailor to post bail. IO Toh kept IO Cheong informed of the plaintiff’s arrest. While waiting for the plaintiff’s bailor to arrive, IO Toh left the interview room for IO Cheong to interview the plaintiff regarding the POHA investigations. According to IO Toh and IO Cheong, the plaintiff refused to be interviewed by IO Cheong.

IO Cheong then served a notice on the plaintiff that stated that he was required to attend the Central Division’s office on 12 October 2020 at 9.00am for an interview in relation to the POHA investigations. According to IO Cheong, the plaintiff said that he would not be attending the interview due to other engagements, but did not elaborate further. IO Cheong then emailed a copy of the notice to the plaintiff, who was released on bail later that day at around 7.16pm. The plaintiff’s bail conditions included the condition that he was to surrender to custody or to make himself available for investigations at the date, time and place appointed for him to do so. Copies of the bail form setting out the plaintiff’s bail conditions were provided to the plaintiff and his bailor.⁹

On 9 October 2020, IO Cheong received a letter from the plaintiff’s counsel stating that the plaintiff “is in the process of commencing legal proceedings against the Singapore Police Force and the relevant people behind the state machinery in this [sic] politically motivated investigations". The letter requested a deferment of the plaintiff’s interview on 12 October 2020 until after the conclusion of the intended legal proceedings, or after 19 October 2020 when the plaintiff would be available for an interview “under protest” but where he would remain silent. IO Cheong replied on 10 October 2020 with a letter from the police’s Central Division stating that the plaintiff’s interview would be rescheduled to 20 October 2020 at 9.00am.¹⁰

From 9 to 13 October 2020, the plaintiff’s counsel wrote letters to IO Toh (copying IO Cheong) to state that the arrest of the plaintiff was unlawful and to demand for the names of the CAD officers involved in the arrest.¹¹ On 15 October 2020 at about 10.35am, IO Toh responded to the plaintiff’s counsel to reject as baseless the claim that the plaintiff’s arrest was unlawful and to reject the demand for the names of the CAD officers. IO Toh also stated that the plaintiff and his bailor were required to attend CAD’s office on 16 October 2020 at 10.00am to extend his bail (“15 October letter”):¹²

Dear Sirs

MR. LIM TEAN’S (“YOUR CLIENT”) ATTENDANCE AT CANTONMENT COMPLEX ON 16 OCTOBER 2020 We refer to your letters of 9 and 13 October 2020.

…

4. Your client’s attendance, together with his bailor, is required at the Commercial Affairs Department on 16 October 2020 at 1000 hours to extend his bail. If your client does not attend, he will be in breach of his bail conditions and Police will take all necessary action against him.

A short while later at about 10.59am, the plaintiff’s counsel telephoned IO Toh to ask if the plaintiff was going to be interviewed when he reported to the CAD’s office on 16 October 2020. According to IO Toh, after he replied “yes”, the plaintiff’s counsel informed him that he would be taking “necessary steps” and immediately ended the call. Then, at about 12.16pm, IO Toh received another letter from the plaintiff’s counsel (copying IO Cheong) stating...