Png Hock Leng v AXA Insurance Pte Ltd

• Jurisdiction: Singapore
• Judge: Belinda Ang Saw Ean JAD
• Judgment Date: 09 March 2022
• Neutral Citation: [2022] SGHC(A) 10
• Citation: [2022] SGHC(A) 10
• Published date: 12 March 2022
• Docket Number: Civil Appeal No 102 of 2021 (Summons No 6 of 2022)
• Plaintiff Counsel: Carolyn Tan Beng Hui and Kevin Leong (Tan & Au LLP)
• Defendant Counsel: Ang Tze Phern and Shaun Ou Wai Hung (Rajah & Tann Singapore LLP)
• Subject Matter: Administrative Law,Natural justice,Fair hearing,Recusal
• Hearing Date: 09 March 2022
• Court: High Court Appellate Division (Singapore)

Belinda Ang Saw Ean JAD (delivering the judgment of the court): Introduction

As noted by the Court of Appeal in Ong Wui Teck v Attorney-General [2020] 1 SLR 855 (“Ong Wui Teck”) at [26], the Oath of Office taken by every judge, judicial commissioner and senior judge of the Supreme Court of Singapore pursuant to Art 97(1) of the Constitution of the Republic of Singapore (2020 Rev Ed) emphasises how vital the qualities of judicial independence and impartiality are to the role and function of a judge. Allegations of bias, impropriety and dishonesty have the potential to undermine public confidence in the judiciary and its administration of justice.

The Singapore courts have repeatedly cautioned against the making of unfounded allegations of judicial bias. Most recently, in BOI v BOJ [2018] 2 SLR 1156 (“BOI”) at [141], the Court of Appeal stated that:

… we cannot emphasise enough how extremely serious allegations of judicial bias are. Indeed, such allegations can be utilised not only as a weapon of abuse by disgruntled litigants but also waste valuable court time and resources in the process. We would imagine that, by their very nature, such allegations would be rare in the extreme. Should such proceedings arise before the court in the future and be found to be unmeritorious, there may be serious consequences. [emphasis added in italics and bold italics]

Similarly, in Soh Rui Yong v Liew Wei Yen Ashley [2021] SGHC 96 at [48], the High Court held that “allegations of … judicial bias, while necessary when appropriate, are extremely serious and should only be employed with great circumspection and care. Inevitably they occasion costs to clients, public resources and the justice system as a whole”. In Noor Azlin bte Abdul Rahman and another v Changi General Hospital Pte Ltd [2021] 2 SLR 440 (“Noor Azlin”) at [118], the Court of Appeal cautioned again that “allegations of bias against sitting judges in Singapore have the potential to undermine public confidence in the administration of justice and are never to be taken lightly” [emphasis added].

The court has to be vigilant in order to guard against the use of unfounded allegations of bias to engage in judge shopping as a procedural strategy. It is important to ensure that litigants do not have the misconceived idea that they may pick their own judges or disrupt proceedings with such applications (TOW v TOV [2017] 3 SLR 725 at [36]). Judges should no more choose their cases than lawyers choose their judges (Raman Dhir v Management Corporation Strata Title Plan No 1374 [2021] 4 SLR 1215 at [10]). That is why unless there are proper grounds for a recusal, the court must be careful not to accede to such applications by litigants who do not want a case to be heard by a particular judge. Judge shopping cannot be condoned as it is insidious, and undermines and weakens the administration of justice (Chee Siok Chin and another v Attorney-General [2006] 4 SLR(R) 541 at [10]).

In our judgment, the present application, AD/SUM 6/2022 (“SUM 6”), filed by the applicant, Png Hock Leng, seeking the recusal of Justice Chua Lee Ming (“the Judge”) from his appeal, AD/CA 102/2021 (“AD/CA 102”), is simply another instance of impermissible judge shopping. We have no hesitation in dismissing his baseless application in full.

The relevant background

We begin by briefly sketching the relevant background. AD/CA 102 is the applicant’s appeal against Justice Lee Seiu Kin’s decision in HC/RA 162/2021, which affirmed Assistant Registrar Kenneth Wang’s decision in HC/OS 171/2021 (“OS 171”), to dismiss his application to transfer the whole of MC/MC 146/2020 (“MC 146”) from the Magistrate’s Court to the General Division of the High Court.

In AD/CA 102, the applicant contends that he has the right to transfer MC 146 to the High Court under s 54E of the State Courts Act (Cap 321, Rev Ed 2007) (“SCA”) because his counterclaim in MC 146 exceeds the District Court’s jurisdiction. Alternatively, MC 146 ought to be transferred under s 54B of the SCA because there is “sufficient reason”, an important question of law or MC 146 is a test case and there would be no irreparable prejudice to the counterparty. The respondent, AXA Insurance Pte Ltd, opposes the transfer application.

On 28 December 2021, the parties were informed that AD/CA 102 was to be heard in the sitting of the Appellate Division of the High Court from 31 January 2022 to 11 February 2022. The hearing fixture list disclosed that the Judge would be on the coram.

On 5 January 2022, an adjournment was granted at the request of counsel for the applicant to refix the hearing date to the sitting of the Appellate Division of the High Court commencing on 7 March 2022.

Subsequently, on 9 February 2022, the applicant wrote a letter to the Registry of the High Court requesting that AD/CA 102 not be fixed before the Judge because the appeal concerned principles stated in Autoexport & EPZ Pte Ltd (formerly known as AJ Towing (S) Pte Ltd v TOW77 Pte Ltd [2021] 4 SLR 1201 (“Autoexport”), a decision of the Judge sitting in the General Division of the High Court. On 14 February 2022, the parties were informed by way of the fixture list that the Judge would be on the coram. At a case management conference on the same date, the applicant reiterated his request that AD/CA 102 not be fixed before the Judge on the basis of apparent bias. The applicant was directed to file a recusal application with supporting affidavit if so advised to do so.

The applicant proceeded to file SUM 6 on 21 February 2022 seeking the recusal of the Judge from hearing AD/CA 102 and the stay of AD/CA 102 pending the outcome of SUM 6 including any appeals therefrom. We reproduce the grounds stated in his supporting affidavit dated 18 February 2022 as follows: 5. I have been advised and verily believe that in my Appeal, I am appealing to a significant extent against the principles first stated in Autoexport, and that the Appellate Division of the High Court has the power to overrule the principles stated in decisions of the General Division of the High Court. 6. Since Autoexport was decided by [the Judge], with all due respect, I humbly believe that His Honour has or may have an interest in the principles stated in his decision being affirmed and/or not being overruled by a superior court and/or another court. 7. I humbly believe that it thus would not be appropriate for [the Judge] to sit in judgment on my appeal, and am gravely concerned that there would otherwise be an appearance of bias or apparent bias against my appeal …

The parties’ arguments

The applicant’s case for recusal is grounded on apparent bias. As the applicant seeks to argue in AD/CA 102 that Autoexport was wrongly decided, he somehow sees the Judge as effectively sitting in an appeal against his own earlier decision. Further, the applicant argues that the objective observer would have knowledge of the facts and the novelty of the legal principles stated in the Judge’s decision of Autoexport because it was decided relatively recently and publicised.¹ The objective observer would also know of the principle of stare decisis and that a litigant would have to appeal to a higher court in order for a precedent to be overruled and that an appeal would be dismissed if the Judges of the Appellate Division hearing the appeal are evenly divided under s 33(3) of the Supreme Court of Judicature Act 1969 (2020 Rev Ed).²

Given that Lee J and Wang AR dismissed the applicant’s transfer application in OS 171 on the basis of the principles stated in Autoexport and the applicant is similarly a counterclaimant seeking a transfer of proceedings to the High Court based on the fact that the quantum of the counterclaim exceeds the District Court’s limit, the fair-minded observer would conclude that “the very Judge who set the precedent in the General Division, effectively sitting in an appeal against his own decision, is unlikely to give a different result in the Appeal in the Appellate Division as judges are impartial and would apply the same principles to similar cases, especially given the short passage of time”.³ The failure of the Judge to give a different result would cause the applicant’s appeal to be dismissed regardless of the views of the other judge on the coram.⁴ If his appeal is dismissed, it would not be a fanciful belief for the objective observer to attribute the dismissal to the lack of desire of the Judge to “go behind and condemn” the very principles that he had set, or a desire to affirm his own precedent, an opportunity that he would not have had if this was an appeal in Autoexport itself.⁵ Therefore, a reasonable suspicion that a fair hearing for the applicant is not possible may arise if the Judge hears AD/CA 102.⁶

The respondent opposes the recusal application on the basis that no fair-minded, informed and reasonable observer would reasonably suspect or apprehend that there would be bias on the Judge’s part and/or that the Judge would reach a final and conclusive decision on AD/CA 102 before being made aware of all relevant evidence and arguments which the parties wish to put before him, such that he approaches the matter at hand with a closed mind. It argues that the applicant has not identified any reason to support his allegation of apparent bias beyond his bare assertion that the Judge decided Autoexport.⁷

The respondent argues that the court should view the application with great circumspection and guard against judge shopping.⁸ The applicant’s allegation of appearance of or apparent bias is plainly unmeritorious since it is only based on his own bare assertion and it is trite that a judge’s previous judicial decision is an irrelevant factor in determining whether apparent bias is present.⁹ It is also well-settled that judges have considered, on appeal, principles which they had enunciated in their earlier judgments.¹⁰

The applicable law

It is...