Tan Eng Hong v Attorney-General

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 15 March 2011
• Neutral Citation: [2011] SGHC 56
• Plaintiff Counsel: M Ravi (LF Violet Netto)
• Date: 15 March 2011
• Docket Number: Originating Summons No 994 of 2010 (Registrar’s Appeal No 488 of 2010)
• Hearing Date: 26 January 2011
• Subject Matter: Striking Out,Constitutional Law,Fundamental Liberties,Civil Procedure
• Published date: 28 March 2011
• Citation: [2011] SGHC 56
• Defendant Counsel: Aedit Abdullah, Mohamed Faizal and Gail Wong (Attorney-General Chambers)
• Court: High Court (Singapore)
• Year: 2011

Lai Siu Chiu J : Introduction

This was an appeal by way of Registrar’s Appeal No 488 of 2010 (“the Appeal”) against the decision of the Assistant Registrar (“the AR”), who had struck out the Originating Summons No 994 of 2010 (“the OS”) filed by Tan Eng Hong (“Tan”) on the application of the Attorney-General (“the AG”).

Tan had been jointly charged with another person in District Arrest Case No 41402 of 2010 (“DAC 41402/2010”) for an offence under s 377A (“the charge”) of the Penal Code (Cap 224, 2008 Rev Ed) (“the Penal Code”). Tan subsequently filed the OS on 24 September 2010 under O 15 r 16 of the Rules of Court (Cap 322, R 5 2006 Rev Ed) (“the Rules”) to challenge the constitutionality of s 377A under the Constitution of the Republic of Singapore (1999 Rev Ed) (“the Constitution”) as follows: (a) Section 377A of the Penal Code was inconsistent with Article 9 of the Constitution and was therefore void by virtue of Article 4 of the Constitution (“Art 4”); (b) Section 377A was inconsistent with Articles 12 and 14 of the Constitution (“Art 12 and 14”) and was therefore void by virtue of Art 4. (c) For those reasons, the charge brought against Tan under s 377A was void.

On 15 October 2010, during a pre-trial conference at the Subordinate Courts, state counsel for the AG informed Tan that the charge against him had been amended to one under s 294(a) of the Penal Code (“the amended charge”). The AG then applied under Summons No 5063 of 2010 (“the striking-out application”) pursuant to O 18 r 19 of the Rules to strike out the OS. The AR granted the striking-out application on 7 December 2010 resulting in this Appeal. A week later, Tan pleaded guilty to the amended charge. He was convicted and fined $3,000.

The issues

In order to determine if the AR’s decision was correct, the court needs to look at the applicable principles in three areas of law viz: striking out; locus standi and the requirements for the granting of declaratory relief.

In brief, pleadings can be struck out under O 18 r 19 of the Rules on the ground that: (i) it discloses no reasonable cause of action; (ii) it is scandalous, frivolous or vexatious; (iii) it may prejudice, embarrass or delay the fair trial of the action; or (iv) it is otherwise an abuse of the process of the Court. The burden is on the applicant to prove a very clear case that one of the grounds in O 18 r 19 applies (per AG of Duchy of Lancaster v London and North Western Railway Co [1892] 3 Ch 274) as can be seen from the following cases: An action may be struck out under the “no reasonable cause of action” ground as being without legal basis where an aggrieved party is unable to establish locus standi (see Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru [1995] 2 MLJ 287. According to Yong Pung How CJ in Goh Koon Suan v Heng Gek Kiau [1990] 2 SLR(R) 705 at [15], an action is clearly vexatious in the following situations:

...when the party bringing it is not acting bona fide, and merely wishes to annoy or embarrass his opponent, or when it is not calculated to lead to any practical result.

In Chee Siok Chin & Ors v Minister for Home Affairs & Anor [2006] 1 SLR(R) 582 at [33] (“Chee Siok Chin”), V K Rajah J elaborated on the “frivolous and vexatious” ground:

Proceedings are frivolous when they are deemed to waste the court’s time, and are determined to be incapable of legally sustainable and reasoned argument. Proceedings are vexatious when they are shown to be without foundation and/or where they cannot possibly succeed and/or where an action is brought only for annoyance or to gain some fanciful advantage. [emphasis in original]

Rajah J in Chee Siok Chin also classified the abuse of process ground into four categories (at [34]): (i) proceedings which involve a deception on the court…; (ii) proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way; (iii) proceedings which are manifestly groundless or without foundation or which serve no useful purpose; (iv) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.

If a court cannot grant a party declaratory relief, it is arguable that the case is frivolous and vexatious, since it would have no practical value. To decide whether it can indeed do so, the court should consider the requirements for the granting of declaratory relief. In Karaha Bodas Co LLC v Pertamina Energy Trading Ltd and another appeal [2006] 1 SLR(R) 112 at [14] (“Karaha Bodas”), Judith Prakash J summarised them as follows:

…

(a) the court must have jurisdiction and power to award the remedy; (b) the matter must be justiciable in the court; (c) as a declaration is a discretionary remedy, it must be justified by the circumstances of the case; (d) the plaintiff must have locus standi to bring the suit and there must be a real controversy for the court to resolve; (e) any person whose interests might be affected by the declaration should be before the court; and (f) there must be some ambiguity or uncertainty about the issue in respect of which the declaration is sought so that the court’s determination would have the effect of laying such doubts to rest.

...

There is considerable overlap between the principles relating to striking-out and the granting of declaratory relief. In the light of this, this court will address the following issues: Does Tan have locus standi? Is there a real controversy? Is Tan’s claim certain to fail? Does the court have jurisdiction to declare s 377A of the Penal Code unconstitutional in view of the fact Tan did not come to court by way of s 56A of the Subordinate Courts Act (Cap 321, 2007 Rev Ed) (“the SCA”)?

Locus Standi The law on locus standi

In Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12 at 27 (“Lim Kit Siang”), the majority of the Malaysian Supreme Court ruled that to possess locus standi, a plaintiff must show that he has a private right that has been infringed. If a public right is involved, he must show that he has suffered a peculiar damage as a result of the alleged public act and that he has a genuine private interest to protect or further. In Lim Kit Siang at p 21, the majority had followed Boyce v Paddington Borough Council [1903] 1 Ch 109, which the House of Lords accepted in Gouriet v Union of Post Office Workers and Others [1978] AC 435.

Tan had argued that where constitutionally guaranteed liberties are at stake, locus standi is established simply by showing sufficient interest rather than substantial interest. In support, his counsel cited Chan Hiang Leng Colin & Ors v Minister for Information and the Arts [1996] 1 SLR(R) 294 (“Colin Chan”). There, Karthigesu JA expounded: 13 If a constitutional guarantee is to mean anything, it must mean that any citizen can complain to the courts if there is a violation of it. The fact that the violation would also affect every other citizen should not detract from a citizen’s interest in seeing that his constitutional rights are not violated. A citizen should not have to wait until he is prosecuted before he may assert his constitutional rights. 14 There is thus no need for the appellants to show that they are office holders in IBSA or members thereof. Their right to challenge Order 405/1994 arises not from membership of any society. Their right arises from every citizen’s right to profess, practise and propagate his religious beliefs. If there was a breach of Art 15, such a breach would affect the citizen qua citizen. If a citizen does not have sufficient interest to see that his constitutional rights are not violated, then it is hard to see who has.

[emphasis added]

Colin Chan

Before applying the test to the case, one must first be clear as to the proposition that Colin Chan stands for. Contrary to the submissions of Tan’s counsel, it is not immediately obvious from Karthigesu JA’s passing reference to “sufficient interest”, that he was articulating a test akin to its English counterpart. Academics Kevin Tan and Thio Li-Ann (“Tan and Thio”) have gone even further than Tan’s counsel. In Constitutional Law in Malaysia and Singapore (LexisNexis, 3rd Ed, 2010) at p 551, they wrote, “Where constitutionally- guaranteed liberties are at stake, locus standi is established without the need to show sufficiency of interest” before making reference to Colin Chan.

A more defensible interpretation is that Karthigesu JA was simply treating constitutional rights as being vested in every citizen. He was not articulating a new test that specifically applied to constitutional rights. Instead, he simply preferred applying the “substantial interest” test instead of the “special damage” test that is used for public rights and had ruled that the former was satisfied in Colin Chan. This interpretation was supported by the Court of Appeal’s decision in Eng Foong Ho and Ors v Attorney-General [2009] 2 SLR(R) 542 (“Eng Foong Ho”). If Colin Chan had articulated a new locus standi requirement for constitutional rights, the Court of Appeal in Eng Foong Ho might have been expected to have made reference to it. That the Court of Appeal did not do so strongly suggests Colin Chan is no authority for Tan’s proposition of a lower test of locus standi for constitutional rights. This is further supported by the Chief Justice’s speech to students from the Singapore Management University (reproduced in the article Judicial Review – From Angst to Empathy (2010) 22 SAcLJ 469 (“SMU Lecture”), where Chan Sek Keong CJ noted at para 33:

…In Singapore, although the courts appear to have accepted the same ‘sufficient interest’ test to determine whether leave for judicial review should be granted, that is not, in my view, also to say that our courts will apply the test with...