Singapore Medical Council v Ang Peng Tiam

• Jurisdiction: Singapore
• Judge: Pang Khang Chau JC
• Judgment Date: 07 April 2017
• Neutral Citation: [2017] SGHC 75
• Docket Number: Originating Summons No 9 of 2016 (Summons No 3 of 2016)
• Date: 07 April 2017
• Published date: 12 April 2017
• Plaintiff Counsel: Chang Man Phing, Cheronne Lim and Lim Ying Min (WongPartnership LLP)
• Defendant Counsel: Edwin Tong SC, Kristy Tan and Rachel Ong (Allen & Gledhill LLP)
• Hearing Date: 21 October 2016
• Court: Court of Appeal (Singapore)
• Subject Matter: Civil procedure,Leave to file affidavit,Affidavits - Appeals to High Court from court, tribunal or person,Paragraph 84(3) of the Supreme Court Practice Directions

Pang Khang Chau JC: Introduction

Paragraph 84(3) of the Supreme Court Practice Directions (“the Practice Directions”) provides that no affidavits shall be filed without the leave of court in appeals brought under Order 55 of the Rules of Court (Cap 332, R 5, 2014 Rev Ed) (“the ROC”). Order 55 applies to appeals to the High Court from “any court, tribunal or person”. The issue in the present application is when leave should be granted for affidavits to be filed in such appeals.

By way of the Court of Three Judges Originating Summons No. 9 of 2016 (“the Originating Summons”), the Singapore Medical Council (“SMC”) initiated an appeal (“the Appeal”) against the sentence imposed by the Disciplinary Tribunal (“DT”) on Dr Ang Peng Tiam (“the Respondent”). In keeping with SMC’s usual practice when appealing DT decisions, SMC filed an affidavit in support of the Originating Summons (“the Supporting Affidavit”). After the Respondent highlighted para 84(3) of the Practice Directions, SMC made the present application for leave to file the Supporting Affidavit.

In dismissing the application, I provided brief oral grounds to the effect that (a) the Supporting Affidavit is unnecessary, (b) the ostensible purpose of the Supporting Affidavit could be achieved in written submissions, and (c) granting leave would only add to litigation costs without corresponding benefit to the fair and efficient disposal of the case.

Even though there was no appeal against my decision, I decided to issue these written grounds of decision as the present application raised a point of general significance for appeals brought under O 55 of the ROC. It would appear from the submissions made before me that some practitioners may not be familiar with para 84(3) of the Practice Directions even though it has been in effect since 1 January 2013. Since this case concerns disciplinary complaints against a professional person, I decided that these written grounds should be released only after the Appeal has been argued in open court before the Court of Three Judges. The Appeal has since been heard on 13 February 2017, after which the Court of Three Judges reserved judgment.

Background

Following the receipt of a complaint against the Respondent on 15 December 2010, SMC commenced the inquiry process which culminated in the issuance of the notice of inquiry more than 4 years later, on 22 April 2015. After 10 days of hearings between November 2015 and February 2016, the DT delivered its decision on 12 July 2016. In finding the Respondent guilty of 2 out of the 4 charges brought under section 53(1)(d) of the Medical Registration Act (Cap 174, 2004 Rev Ed), the DT sentenced the Respondent to a fine, citing the long delay in the inquiry process as a reason for not imposing any period of suspension.

On 22 August 2016, SMC filed the Originating Summons to appeal against the DT’s decision on sentence. Of the seven grounds of appeal listed in the Originating Summons, ground (e) alleged that the DT erred in placing undue weight on the alleged delay in the disciplinary proceedings while ground (f) alleged that the DT erred in finding that the alleged delay had caused the Respondent tremendous suffering over the years.

On 31 August 2016, SMC filed the Supporting Affidavit. The Supporting Affidavit is a 271-page tome, with its main text spanning 23 pages, accompanied by 248 pages of exhibits. The main text of the Supporting Affidavit devoted eight pages to setting out the chronology and another seven pages to arguments justifying the delay in the commencement of disciplinary proceedings. Three pages were spent regurgitating the 19 paras and sub-paras of non-delay related grounds of appeal already set out in the Originating Summons. The 248 pages of exhibits comprise evidence from medical experts previously tendered at the DT, the 66-page decision of the DT and 180 pages of transcripts of the proceedings before the DT.

I pause here to note that, with or without the Supporting Affidavit, all of these exhibits would have to be filed eventually (and were indeed filed subsequently) as part of the record of proceedings for the Appeal (“Record of Proceedings”).

At the case management conference on 2 September 2016, the Respondent’s counsel objected to the Supporting Affidavit, citing para 84(3) of the Practice Directions. Paragraph 84 of the Practice Directions, in full, reads:

84. Civil appeals before the High Court from tribunal or person under Order 55 of the Rules of Court

(1) Order 55, Rule 6(4) of the Rules of Court states that it is the appellant's duty to apply to the Judge or other person presiding at the proceedings in which the decision appealed against was given, for the signed copy of any note made by him of the proceedings and to furnish that copy for the use of the Court. For the avoidance of doubt, the onus is on the appellant to file a record of proceedings, comprising the signed copy of the notes of proceedings, and any further grounds of decision, in the High Court. (2) The appellant and the respondent are to tender one hard copy of the notes of proceedings, grounds of decision and any skeletal arguments or bundles of authorities to be relied upon to the Legal Registry of the Supreme Court not less than 5 working days before the hearing of the appeal, to assist the Judge of the High Court. (3) No affidavits shall be filed in respect of the appeal without the leave of court.

[emphasis added]

In the light of the Respondent’s counsel’s objections, the learned assistant registrar presiding at the case management conference asked parties to confer and consider if they could reach agreement on whether the Supporting Affidavit should be filed. As no agreement was reached, SMC made the present application for leave to file the Supporting Affidavit.

Summary of the parties’ arguments

Before me, the counsel for SMC accepted that para 84(3) of the Practice Directions was applicable and that the Supporting Affidavit should not have been filed without the leave of court. In seeking leave to file the Supporting Affidavit, SMC gave two main reasons: the Supporting Affidavit would help to provide a “snapshot” of the background of disciplinary proceedings and highlight and crystallise the relevant issues to be determined on appeal, especially since there were no pleadings or equivalent in the DT proceedings; and in the light of the weight given by the DT to the alleged delay, SMC felt that it was important and necessary to consolidate and clarify the various timelines and events in order to assist the Court of Three Judges in determining the Appeal.

On the other hand, the Respondent pointed out that: the Supporting Affidavit introduced new evidence; and SMC’s affidavit in support of the present leave application provided no explanation as to why new evidence ought to be allowed at the appellate stage.

SMC responded that the contents of the Supporting Affidavit had been placed before the DT and there was no new evidence in the Supporting Affidavit.

The Respondent countered that, even accepting SMC’s own position that the Supporting Affidavit contained only matters which were already put before the DT, leave should not be granted as there was simply no reason to admit the Supporting Affidavit just to rehash matters which would already form part of the Record of Proceedings.

After hearing the parties and having examined the Supporting Affidavit, I found that it did indeed contain new evidence. To give just one example, the Supporting Affidavit at p 6 states that, between August 2012 and May 2013, SMC’s counsel approached 11 senior doctors to act as experts for SMC, all of whom declined. Neither the figure of 11 senior doctors nor the time period of August 2012 to May 2013 appeared anywhere in the written materials or submissions before the DT. When this was pointed out to SMC’s counsel during the hearing, the response given by SMC’s counsel to me was that, while some of these numbers were new, the “facts underlying those numbers” were placed before the DT and so “in substance” there was no new evidence in the Supporting Affidavit.

This court’s approach to the issues arising out of the application

I thus had before me, on the one hand, a Supporting Affidavit which contained new evidence and, on the other, a leave application which did not attempt...