Re Nalpon Zero Geraldo Mario

• Court: Court of Appeal (Singapore)
• Judgment Date: 23 April 2013
• Docket Number: Civil Appeal No 62 of 2012
• Date: 23 April 2013

Re Nalpon Zero Geraldo Mario

[2013] SGCA 28

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 62 of 2012

Court of Appeal

Civil Procedure—Jurisdiction—Application for leave that investigation be commenced against legal service officer dismissed—Whether that decision not to grant leave could be appealed against—Section 82A (5) Legal Profession Act (Cap 161, 2009 Rev Ed)—Sections 29 A (1) and 29 A (2) Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Civil Procedure—Jurisdiction—Inherent—Meaning and scope of inherent jurisdiction of court

Legal Profession—Disciplinary proceedings—Type of jurisdiction exercised in disciplinary proceedings

Statutory Interpretation—Construction of statute —Meaning of ‘jurisdiction’

In Originating Summons No 77 of 2012, the appellant (‘the Appellant’) applied to the Chief Justice for leave that an investigation be commenced in relation to his complaint of misconduct against a deputy public prosecutor (‘DPP’), pursuant to s 82A (5) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (‘LPA’). The complaint arose out of a trial in the District Court, where the Appellant asserted that the DPP, in conducting proceedings, had intentionally withheld evidence, colluded with a witness, and misled the District Judge.

After hearing the Appellant's application for leave that an investigation be commenced, the Chief Justice determined that the Appellant failed to establish a prima facie case, and dismissed his application. An appeal was then initiated against that decision of the Chief Justice. The preliminary issue of whether there could even be an appeal from a decision made under s 82A (5) of the LPA was raised by the Court of Appeal.

Held, finding that the Court of Appeal had no jurisdiction to entertain the appeal:

(1) The jurisdiction of a court was its authority, however derived, to hear and determine a dispute that was brought before it: at [13] and [31] .

(2) The jurisdiction of a court was statutorily defined by the statute constituting it: at [14] to [20] .

(3) The inherent jurisdiction of the court was in fact an abbreviated reference to the court's residual powers and did not confer on a court the jurisdiction to hear matters that were not within the court's statutory remit: at [33] to [41] .

(4) The relevant legislation conferring jurisdiction upon the Court of Appeal in this case was the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)(‘SCJA’), in particular, ss 29 A (1) and 29 A (2). A close reading of ss 29A (1) and 29 A (2) revealed that two threshold requirements had to be met before the Court of Appeal was seized of jurisdiction: at [44] to [46] .

(5) The first threshold requirement was that the decision being appealed against had to have been a decision of the High Court. Three indicia suggested that a decision made by the Chief Justice not to grant leave under s 82A (5) of the LPA was not a decision of the High Court. Instead, the Chief Justice made this decision qua President of the Legal Service Commission: at [49] , [50] , [53] to [55] , [61] , [62] and [65] .

(6) The second threshold requirement was that the decision appealed against had to have been the exercise of the original/appellate civil jurisdiction or original criminal jurisdiction of the High Court. Disciplinary proceedings were an exercise of the court's peculiar disciplinary jurisdiction, rather than an exercise of civil or criminal jurisdiction: at [66] to [70] .

(7) Since both threshold requirements were not fulfilled, the Court of Appeal did not have the requisite jurisdiction to entertain the purported appeal: at [71] .

Abdullah bin A Rahman v PP [1994] 2 SLR (R) 1017; [1994] 3 SLR 129 (refd)

Blenwel Agencies Pte Ltd v Tan Lee King [2008] 2 SLR (R) 529; [2008] 2 SLR 529 (folld)

Donald Chadwick v Robin Hollingsworth [2010] EWCA Civ 1210 (refd)

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

Eastman v R (2000) 203 CLR 1 (refd)

Ezmiwardi bin Kanan v PP [2012] SGHC 44 (refd)

HKSAR v Ooi Lim Khoon [2011] 5 HKLRD 100 (refd)

Jeyaretnam Joshua Benjamin v Lee Kuan Yew [1991] 1 SLR (R) 728; [1991] SLR 118 (refd)

Knight Glenn Jeyasingam v PP [1998] 3 SLR (R) 196; [1999] 3 SLR 362 (refd)

Law Society of Singapore v Ang Boon Kong Lawrence [1992] 3 SLR (R) 825; [1993] 1 SLR 522 (refd)

Law Society of Singapore v Tham Yu Xian Rick [1999] 3 SLR (R) 68; [1999] 4 SLR 168 (refd)

Law Society of Singapore v Top Ten Entertainment Pte Ltd [2011] 2 SLR 1279 (folld)

MCST Plan No 301 v Lee Tat Development Pte Ltd [2011] 1 SLR 998 (refd)

Mc C, Re [1985] 1 AC 528 (refd)

Microsoft Corp v SM Summit Holdings Ltd [2000] 1 SLR (R) 423; [2000] 2 SLR 137 (refd)

Muhd Munir v Noor Hidah [1990] 2 SLR (R) 348; [1990] SLR 999 (folld)

Myers v Elman [1940] AC 282 (refd)

Ng Chye Huey v PP [2007] 2 SLR (R) 106; [2007] 2 SLR 106 (refd)

R v James Francis Hughes [2010] 1 Cr App R (S) 25 (refd)

R & T Thew Ltd v Reeves (No 2) [1982] QB 1283 (refd)

Ridehalgh v Horsefield [1994] Ch 205 (refd)

Roberto Building Material Pte Ltd v Oversea-Chinese Banking Corp Ltd [2003] 2 SLR (R) 353; [2003] 2 SLR 353 (folld)

Salijah bte Ab Latef v Mohd Irwan bin Abdullah Teo [1996] 2 SLR (R) 80; [1996] 2 SLR 201 (folld)

Swift-Fortune Ltd v Magnifica Marine SA [2007] 1 SLR (R) 629; [2007] 1 SLR 629 (refd)

Therrien c Québec (Ministre de la justice) [2001] 2 SCR 3 (refd)

Ting Sie Huong v State AG [1985] 1 MLJ 431 (refd)

UMCI Ltd v Tokio Marine & Fire Insurance Co (Singapore) Pte Ltd [2006] 4 SLR (R) 95; [2006] 4 SLR 95 (refd)

Wellmix Organics (International) Pte Ltd v Lau Yu Man [2006] 2 SLR (R) 117; [2006] 2 SLR 117 (refd)

Weston v Central Criminal Court Courts Administrator [1977] QB 32 (refd)

Advocates and Solicitors Ordinance 1934 (SS Ord No 32 of 1934) ss 25, 26 (1) , 26 (8)

Advocates and Solicitors Ordinance (Cap 188, 1955 Rev Ed) s 30 (7)

Court's Ordinance 1873 (SS) ss 34, 52, 64, chs VII, X, XII

Courts Ordinance 1878 (SS Ord No 3 of 1878) s 50, chs V, VI, IX

Courts Ordinance 1907 (SS Ord No 30 of 1907) ss 8, 9, 10, 110, chs XI, XII

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 374, 374 (1) , 405

Interpretation Act (Cap 1, 2002 Rev Ed) s 2

Legal Profession Act (Cap 161, 2009 Rev Ed) ss 82A (5) , 82A (6) (consd) ; ss 82, 82A, 91 (4) , 98, 98 (3) , 98 (6) , 98 (7)

Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 24 r 6 (2) , O 92 r 4

Rules of the Supreme Court 1970, The

Supreme Court Act 1867 (SS) ss 22, 27, 35

Supreme Court Ordinance 1868 (SS) ss 2, 24, 29, 40

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) ss 29 A (1) , 29 A (2) (consd) ; ss 3, 9, 15, 16, 16 (1) (b) , 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 27, 28, 29A, 29A (3) , 29A (4) , First Schedule

Criminal Justice Act 1988 (c 33) (UK) s 36

Appellant in person

Goh Yihan (Faculty of Law, National University of Singapore) as amicus curiae.

V K Rajah JA

(delivering the grounds of decision of the court):

Introduction

1 Mr Zero Geraldo Mario Nalpon (‘Mr Nalpon’) applied to Chan Sek Keong CJ for leave that an investigation be commenced in relation to his complaint of misconduct against Ms Nor'Ashikin binte Samdin (‘Ms Nor'Ashikin’), a deputy public prosecutor. The complaint arose out of a trial in the District Court (‘District Court Trial’), where Mr Nalpon's client faced two charges of criminal breach of trust (District Arrest Case No 18210 of 2009 (‘First Charge’) and District Arrest Case No 18211 of 2009 (‘Second Charge’). At the end of the trial, the District Judge (‘DJ’) convicted Mr Nalpon's client on the First Charge and fined him $6,000, but acquitted him of the Second Charge.

2 Both Mr Nalpon's client and the Prosecution appealed against the DJ's decision in Magistrate's Appeal No 401 of 2010 (‘MA 401/2010’). Mr Nalpon's client appealed against his conviction under the First Charge, while the Prosecution appealed against the sentence under the First Charge. The Prosecution also appealed against the DJ's decision to acquit Mr Nalpon's client under the Second Charge.

3 Before MA 401/2010 was heard, Mr Nalpon filed Criminal Motion No 58 of 2011 (‘CM 58/2011’) to adduce fresh evidence, namely, the transcript of a ‘999’ call. In his supporting affidavit, Mr Nalpon stated that one of the key reasons why the application should be allowed was that Ms Nor'Ashikin had intentionally withheld evidence of this call to the DJ, thereby misleading him. Further related allegations of a similar nature against Ms Nor'Ashikin were also made. In her reply affidavit, Ms Nor'Ashikin refuted Mr Nalpon's allegations and denied that she had any intention either to withhold any evidence or to mislead the court.

4 Mr Nalpon's application under CM 58/2011 was, by consent, acceded to and MA 401/2010 proceeded before Lee Seiu Kin J. In the appeal papers, Mr Nalpon maintained the same allegations against Ms Nor'Ashikin. Lee J subsequently directed Mr Nalpon to first inform Ms Nor'Ashikin of the said allegations before raising them in court.

5 From October 2011 to January 2012, a number of letters were exchanged between Mr Nalpon and the Attorney-General's Chambers (‘AGC’), where Mr Nalpon continued with his allegations against Ms Nor'Ashikin. The AGC, however, took the position that these allegations were baseless and speculative, and invited Mr Nalpon to withdraw all allegations against Ms Nor'Ashikin. Eventually, in a letter dated 11 January 2012, Mr Nalpon made clear his intentions to proceed with the ‘requisite application pursuant to the Legal Profession Act against Ms Nor'Ashikin Binte Samdin’.

6 On 31 January 2012, Mr Nalpon initiated Originating Summons No 77 of 2012 (‘OS 77/2012’) for leave for an investigation to be made into a complaint of misconduct against a Legal Service Officer. He asserted that Ms Nor'Ashikin, in conducting the District Court Trial, had intentionally withheld...