Registrar of Vehicles v Komoco Motors Pte Ltd

• Jurisdiction: Singapore
• Judgment Date: 08 May 2008
• Date: 08 May 2008
• Docket Number: Civil Appeal No 74 of 2007
• Court: Court of Appeal (Singapore)

Registrar of Vehicles

Plaintiff

and

Komoco Motors Pte Ltd

Defendant

[2008] SGCA 19

Chan Sek Keong CJ

,

Andrew Phang Boon Leong JA

and

V K Rajah JA

Civil Appeal No 74 of 2007

Court of Appeal

Administrative Law–Judicial review–Fettering of discretion and abrogation of power –Registrar of Vehicles having power to determine value of vehicle for purposes of levying additional registration fee–Registrar having practice of adopting Customs' valuation of open market value of vehicle as its “value”–Whether Registrar was entitled to rely on Customs' valuation of OMV to compute ARF payable–Whether Registrar failing to exercise power vested in her–Whether Registrar failing to give genuine consideration to car importer's representations–Rule 7 (3) Road Traffic (Motor Vehicles, Registration and Licensing) Rules (Cap 276, R 5, 2004 Rev Ed)

Since the 1960s, the Government had imposed an additional registration fee (“ARF”) on each motor vehicle imported into Singapore over and above other duties, such as excise duties, payable on the vehicle (“the ARF Scheme”). The power to determine the value of a motor vehicle for the purposes of ascertaining the ARF payable was vested in the appellant, the Registrar of Vehicles (“the Registrar”) under r 7 (3) of the Road Traffic (Motor Vehicles, Registration and Licensing) Rules (Cap 276, R 5, 2004 Rev Ed) (“the Rules”), which stated that “the value of a motor vehicle shall be determined by the Registrar after making such enquiries, if any, as he thinks fit and the decision of the Registrar shall be final”.

Since 1968, a practice had been established by the Registrar and which had been accepted by all dealers in the motor trade (“the Administrative Convention”) of determining the value of a motor vehicle, when computing the ARF payable, based on that vehicle's open market value (“OMV”) as determined by the Singapore Customs (“Customs”) (“Customs' OMV”). The respondent, Komoco Motors Pte Ltd (“Komoco”), was aware of this Administrative Convention. The OMV of a motor vehicle had always been determined (for the purposes of imposing, inter alia, excise duties) by Customs pursuant to regulations made under the Customs Act (Cap 70, 2004 Rev Ed) (“the Act”) and its predecessor statutes.

In 2001, Customs conducted a post-clearance audit on Komoco and determined that Komoco had made incorrect declarations as to the OMVs of 17,449 cars. Customs offered to compound the offence on payment by Komoco of the shortfall in the excise duty collected resulting from the incorrect declaration. Komoco accepted Customs' offer of composition (“the Offer of Composition”) in order to avoid prosecution. Subsequently, in accordance with its standard practice, Customs informed the Registrar of Komoco's under-declaration of the OMVs of the 17,449 cars. The Registrar discovered that one of the cars had yet to be registered but found that there had been a shortfall in ARF payments in relation to the remaining 17,448 cars (“the Cars”). Komoco sought judicial review of this decision. However, the parties reached an agreement for the Registrar to, inter alia, give Komoco a “fair, reasonable and just hearing” (“the Settlement Agreement”) before the judicial review application was heard.

Pursuant to the Settlement Agreement, Komoco met with the Registrar to present its case. About two months later, the Registrar called a meeting at which she informed Komoco that her previous decision on the additional ARF payable remained. Komoco again sought judicial review of the Registrar's decision arguing that the Registrar had fettered her discretion or, alternatively, had abrogated her power under r 7 (3) of the Rules to determine the OMVs of the Cars.

The judge in the court below (“the Judge”) found as a fact that the Registrar had slavishly used Customs' OMVs of the Cars to compute the ARF payable and found that the Registrar, in adhering rigidly to the Administrative Convention, had thereby fettered her discretion under r 7 (3) of the Rules to determine the values of the Cars. The Judge granted the prerogative orders of certiorari and mandamus against the Registrar.

Dissatisfied with the decision of the Judge, the Registrar filed this appeal. The main issues in this appeal were: (a) whether the Registrar gave a hearing to Komoco as agreed under the Settlement Agreement; (b) whether the Registrar was entitled to rely on Customs' OMVs of the Cars to compute the ARF payable; and (c) whether, on the facts, the Registrar had fettered her discretion or had abrogated her power under r 7 (3) of the Rules to determine the OMVs of the Cars.

Held, allowing the appeal:

(1) The Registrar had given Komoco a just, fair and reasonable hearing. There was ample evidence to show that the Registrar had given genuine consideration to the representations of Komoco. The Registrar had given her reasons for rejecting Komoco's representations and these reasons were relevant. The Registrar had also considered the materials from both Komoco and Customs which were placed before her: at [35] to [38].

(2) As the Registrar had given sworn evidence that she had given consideration to the representations of Komoco, Komoco should have applied to cross-examine her on her affidavit if it did not accept her evidence: at [38].

(3) The Registrar, in deciding to adhere to the Administrative Convention vis-à-vis Komoco, had not fettered the discretion conferred on her under r 7 (3) of the Rules as Komoco had not presented to her any evidence that was new or that had not already been provided to and rejected by Customs. Furthermore, the Registrar had not abrogated her power under r 7 (3) of the Rules simply because she had applied Customs' OMVs of the Cars: at [53] and [57].

(4) The Registrar, in deciding to adopt Customs' OMV of a motor vehicle as its “value” for the purposes of the ARF Scheme, was not taking instructions from Customs. The Registrar was exercising her power under r 7 (3) of the Rules. The words of r 7 (3) of the Rules permitted the Registrar to exercise her discretion to determine the value of a motor vehicle in every case by relying on Customs' OMV of that vehicle, whether or not the importer or trader concerned agreed to it, subject only to the court deciding that Customs' calculation of the vehicle's OMV was wrong: at [31] and [60].

[Observation: The legislative framework governing the ARF Scheme was structured such that the right of a motor vehicle dealer to be heard on the value of a motor vehicle, vis-à-vis the calculation of the ARF payable, was satisfied by the right of hearing provided to him under ss 22B (1) and 22B (5) of the Act when the OMV of the vehicle was being determined by Customs (vis-à-vis the imposition of, inter alia, excise duty): at [63].

Natural justice did not mandate that Komoco be given a hearing by the Registrar on an issue (ie, the valuation of the OMVs of the Cars) on which it had earlier already been heard by another administrative agency of the Government (viz, Customs). Komoco was not in any way denied procedural fairness by the Registrar, especially in the light of the objectivity and the transparency of the Administrative Convention: at [69].]

Creednz Inc v Governor-General [1981] 1 NZLR 172 (refd)

H Lavender and Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231 (refd)

King, The v Port of London Authority,ex parte Kynoch, Limited [1919] 1 KB 176 (refd)

Lim Chor Pee, Re [1990] 2 SLR (R) 117; [1990] SLR 809 (refd)

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

Lloyd v McMahon [1987] AC 625 (refd)

Murphy, Re [2004] NIQB 85 (refd)

Patterson v District Commissioner of Accra [1948] AC 341 (refd)

Regina v Amber Valley District Council,ex parte Jackson [1985] 1 WLR 298 (refd)

Smith v Lord Advocate1980 SC 227 (refd)

Town Investments Ltd v Department of the Environment [1978] AC 359 (refd)

Customs Act (Cap 70,2004 Rev Ed)ss 22B (1),22B (5),128, 128 (1),128 (1) (a),128 (1) (d)

Road Traffic (Motor Vehicles, Registration and Licensing) Rules (Cap 276, R 5,2004 Rev Ed)r 7 (3) (consd);r 7 (1),First SchedulePt II

Peace Preservation Ordinance (Laws of the Gold Coast, 1936 Revision,c 40) (West Africa)s 9

Sundaresh Menon, Simon Goh, Baldev Singh and Paul Tan (Rajah & Tann) for the appellant

Harry Elias SC, Philip Fong, Navin Joseph Lobo and Sharmini Selvaratnam (Harry Elias Partnership) for the respondent.

Chan Sek Keong CJ

(delivering the grounds of decision of the court):

Introduction

1 This was an appeal by the Registrar of Vehicles (“the Registrar”) against the decision of the judge in the court below (“the Judge”) granting the prerogative orders of certiorari and mandamus against the Registrar on the application of Komoco Motors Pte Ltd (“Komoco”) (seeKomoco Motors Pte Ltd v Registrar of Vehicles [2007] 4 SLR (R) 145) (“the GD”)).

2 The Judge found that the Registrar had failed to exercise her discretionary power under r 7 (3) of the Road Traffic (Motor Vehicles, Registration and Licensing) Rules (Cap 276, R 5, 2004 Rev Ed) (“the Rules”) to determine the value of 17,448 motor vehicles imported by Komoco (“the Cars”) for the purposes of calculating the additional registration fee (“ARF”) payable on those vehicles.

3 We allowed the appeal at the conclusion of the hearing of the appeal, and now give the reasons for our decision. For convenience, in these grounds of decision, the expression “the Registrar” will include, where the context requires, any predecessor of the Registrar, and the term “she” will include “he” (and vice versa) with regard to the gender of the Registrar.

Legal context

4 The relevant legal context of this case covers a period of about 40 years. Since the 1960s, the Government, under what we shall refer to as “the ARF Scheme”, has imposed an ARF on each motor vehicle imported into Singapore over and above other duties...