Manjit Singh s/o Kirpal Singh v AG

• Jurisdiction: Singapore
• Judgment Date: 14 March 2013
• Date: 14 March 2013
• Docket Number: Civil Appeal No 70 of 2012
• Court: Court of Appeal (Singapore)

Manjit Singh s/o Kirpal Singh and another

Plaintiff

and

Attorney-General

Defendant

[2013] SGCA 22

Chao Hick Tin JA

,

Judith Prakash J

and

Andrew Ang J

Civil Appeal No 70 of 2012

Court of Appeal

Administrative Law—Disciplinary proceedings—Application for quashing order causing delay to disciplinary proceedings—Whether delay a sufficient basis to exclude judicial review—Administrative Law—Judicial review—Statutory power to appoint members of Disciplinary Tribunal—Factors determining amenability to judicial review—Whether statutory powers necessarily amenable to judicial review—Whether ‘ministerial’ nature of power relevant to amenability to judicial review—Whether applicant for judicial review needed to have suffered harm—Administrative Law—Natural justice—Reasons not given for administrative decision—Hearing not given before decision taken—Whether there was general duty to give reasons for administrative decision—Whether parties affected had right to be heard—Whether right to be heard had to take form of actual hearing—Courts and Jurisdiction—Judges—Power granted to Chief Justice—Whether exercise of that power necessarily in judicial capacity of Chief Justice—Interpretation Act (Cap 1, 2002 Rev Ed)—Statutory Interpretation—Construction of statute—List of persons or things in statute—Whether order of priority determined by order of list

In December 2010, a complaint was lodged against the Appellants with the Law Society by a former client. Following a report prepared by an Inquiry Committee (‘IC’), the Law Society wrote to Chan Sek Keong CJ (‘the CJ’) seeking the appointment of a Disciplinary Tribunal (‘DT’) to investigate the complaint. The CJ first appointed Mr Thean Lip Ping as the president of the DT pursuant to s 90 (1) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (‘the LPA’). However, after the Appellants objected to Mr Thean's appointment, the CJ, without accepting the veracity of the Appellants' contentions with regard to Mr Thean, appointed Mr GPSelvam in place of the latter.

On 27 February 2012, the Appellants wrote two letters to the CJ objecting to Mr Selvam's appointment. They noted that the names of Rajah & Tann LLP (‘R&T’), Mrs VKRajah (‘Mrs Rajah’) and Mr KMuralidharan Pillai, a lawyer from R&T, ‘featured’ in their submissions before the IC and in their defence. The Appellants asserted that Mr Selvam was known to have a close relationship with VKRajah JA (‘Justice Rajah’) and that it was unreal to expect that any ex-judge could exercise his powers in an objective and impartial manner. The Appellants therefore argued that Mr Selvam should be replaced with a Senior Counsel.

On 29 February 2012, the Appellants were informed that their objections were not accepted. The Appellants replied the same day, asserting that the denial of their request was not in compliance with due process and natural justice. Further, they also alleged apparent bias on the part of the CJ himself. On 2 March 2012, the Appellants were informed that the CJ had reviewed the matter and decided that Mr Selvam's appointment as president of the DT would stand.

On 2 April 2012, the Appellants attended a pre-hearing conference (‘PHC’) before the DT. On 25 April 2012, the Appellants again wrote to the CJ, enclosing the transcript of the PHC and alleging that what Mr Selvam had said during the PHC showed that he was biased against them and had pre-judged the case. On 27 April 2012, the Appellants were informed that the CJ found no basis to replace Mr Selvam.

The Appellants filed Originating Summons No 443 of 2012 (‘the OS’) claiming, inter alia, (a)leave to apply for a quashing order of the CJ's decision to appoint Mr Selvam as the president of the DT and (b)a stay of the DT proceedings pending determination of their application for a quashing order. The OS was dismissed at first instance, with the High Court Judge finding that the CJ's decision was not amenable to judicial review and that the matters disclosed and/or alleged by the Appellants could not form a basis for inferring any misconduct on the part of Mr Selvam or the CJ. The Appellants appealed.

Held, dismissing the appeal:

(1) The mere fact that a power stemed from statute should not necessarily mean that it was amenable to judicial review. Where it was shown that there was an absence of a public element in a statutory power or duty, there would be no reason to subject the exercise of such a power or duty to public law remedies in judicial review proceedings: at [28] and [32] .

(2) It was unnecessary to consider whether the CJ's power under s 90 (1) of the LPA could properly be characterised as ‘ministerial’ in nature. Even if it was ‘ministerial’, it would not necessarily follow that that power would not be amenable to judicial review: at [35] .

(3) The amenability of particular decisions or types of decisions to judicial review did not hinge on whether an applicant had in fact suffered harm as a result of the alleged illegality, procedural irregularity or irrationality. Generally speaking, judicial review was only concerned with the reasoning process and not the actual decision made. The courts would intervene by judicial review if a decision-maker exceeded the legal limits of his powers: at [53] .

(4) While the Appellants' application for leave to apply for a quashing order would delay the disciplinary proceedings against them, this could not per se constitute a sufficient basis to hold that the CJ's power under s 90 (1) of the LPA was not amenable to judicial review. In any event, the content of the obligations imposed by public law principles of good governance and administration might vary according to the context, and the CJ's role as a mere appointing body without any involvement in the disciplinary proceedings proper was a relevant factor: at [55] and [60] .

(5) There was no indication that s 91 A of the LPA was intended to exclude judicial review of decisions by persons other than the DT. As a matter of statutory interpretation, a decision of the CJ under s 90 (1) of the LPA did not fall within the ambit of s 91 A: at [58] .

(6) While the CJ was the head of the judiciary and would normally exercise his functions in a court of law, it did not follow that when a power was conferred upon the CJ the exercise of that power would necessarily be an exercise in his judicial capacity. The nature of the function in respect of which a power was conferred upon the CJ was critical. The power conferred by s 90 (1) of the LPA was clearly administrative, and this indicated that it was not conferred upon the CJ in his judicial capacity: at [65] .

(7) There was no basis at all to claim that there was a prima facie case of reasonable suspicion that Mr Selvam had pre-judged the charges against the Appellants. While the threshold for the granting of leave was a low one, bare assertions without any credible basis would not satisfy even that low threshold: at [72] .

(8) Although a central plank of the Appellants' objection to Mr Selvam was that R&T, Mrs Rajah and Mr Pillai ‘featured’ in their submissions and their defence, they failed to place these documents before the court to support their OS. As a result, no particulars as to how these persons were involved in the DT proceedings or in the complaint against them were before the court. In the circumstances, a reasonable and fair-minded person in possession of only the facts which were placed before the court would not have had a reasonable suspicion that a fair trial for the Appellants was not possible: at [77] .

(9) The Appellants had failed to show how contact between the CJ, Justice Rajah and their respective spouses would give rise to apparent bias on the part of the CJ in appointing Mr Selvam as the president of the DT: at [81] .

(10) There was no general duty to give reasons for administrative decisions. While exceptions might be made to this rule where, for instance, the decision appeared aberrant or involved matters of special importance such as personal liberty, neither of these circumstances existed on the facts of the present appeal: at [85] .

(11) The requirements of natural justice in relation to the CJ's power of appointment under s 90 (1) of the LPA were less stringent than in relation to the IC or the DT. An essential feature of natural justice was fairness, which also encompassed the right to be heard. What fairness demanded depended on the subject matter and the context; the right to be heard need not be oral, and a ‘hearing’ in writing could suffice. The Appellants were accorded that right through their various letters: at [87] and [88] .

(12) While Senior Counsel were mentioned before ex-judges and ex-judicial commissioners in s 90 (1) of the LPA, there was nothing to suggest that priority should be given by the CJ to appointing a Senior Counsel as president of the DT. There was no rule of interpretation that the order of listing in a statutory provision meant that that was the order of priority as to the persons or things on the list: at [92] .

(13) So long as the person appointed as the president of the DT fell within the list of persons set out in s 90 (1) of the LPA, the appointment would be proper unless bad faith could be shown. While the CJ selected two ex-judges to be president of the DT, that was something he was entitled to do and this fact could not per se give rise to a prima facie case of reasonable suspicion: at [94] .

Chief Building Surveyor v Makhanlall & Co Ltd [1968-1970] SLR (R) 460; [1969-1971] SLR 69 (refd)

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 (refd)

Hetherington v Security Export Co Ltd [1924] AC 988 (not folld)

Lim Mey Lee Susan v Singapore Medical Council [2012] 1 SLR 701 (distd)

Lloyd v Mc Mahon [1987] AC 625 (refd)

Marta Stefan v General Medical Council [1999] 1 WLR 1293 (refd)

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