Tan Kok Ing v Tan Swee Meng & 3 Others

• Judge: Woo Bih Li JC
• Judgment Date: 31 July 2002
• Neutral Citation: [2002] SGHC 166
• Subject Matter: Transfer from Magistrate's Court to District Court,Magistrates’ courts,Civil Procedure,Jurisdiction,s 53 Subordinate Courts Act (Cap 321, 1999 Rev Ed),O 89 r 4 Rules of Court (Cap 322, R 5, 1997 Rev Ed),Courts and Jurisdiction,Quantum exceeding jurisdiction of Magistrate's Court,Whether quantum in itself constitutes "important question of law or fact" -s 53 Subordinate Courts Act (Cap 321, 1999 Rev Ed)
• Published date: 19 September 2003
• Defendant Counsel: Adeline Chong (Harry Elias Partnership),Linda Phua (Lee & Lee)
• Citation: [2002] SGHC 166
• Year: 2002
• Court: High Court (Singapore)
• Plaintiff Counsel: Cosmas Gomez (Hoh & Partners)

JUDGMENT GROUNDS OF DECISION

Background

1. The Plaintiff is one Tan Kok Ing.

2. Mr Tan’s claim arises from a road traffic accident on 11 July 1997 involving two motor vehicles. He sued various defendants for damages for personal injuries and loss suffered as a result of the motor accident. He was a passenger in one of these vehicles. His claim was filed in the Magistrate’s Court on 7 July 2000.

3. On 31 January 2002, Mr Tan filed an application in the Magistrate’s Court to transfer the action from the Magistrate’s Court to the District Court. The grounds in support of his application were that when his action was commenced, it appeared that his injuries were less serious in nature and the general and special damages which he might reasonably expect to be awarded would not exceed the Magistrate’s Court limit. But since his action was commenced, Mr Tan alleged that it became apparent that his injuries were more severe than he had thought. In this regard, he relied on several medical reports. Consequently, his claim might exceed the Magistrate’s Court limit.

4. It was further alleged by Mr Tan that the transfer of proceeding would not prejudice the defendants.

5. Mr Tan’s application was dismissed by a Deputy Registrar of the Subordinate Courts. He then appealed to a District Court and that appeal was dismissed. Thereafter, he appealed to the High Court and that appeal came before me. After hearing arguments, I dismissed the appeal. I now give my written reasons.

6. The relevant provision is s 53 of the Subordinate Courts Act (Cap 321). Section 53 states:

‘Transfer from Magistrate’s Courts to District Courts

53. A Magistrate’s Court may, either of its own motion or on the application of a party to an action, transfer the action to a District Court on the ground that some important question of law or fact is likely to arise.’

7. I was of the view that in the light of this provision, there was no inherent jurisdiction in the Magistrate’s Court to transfer an action commenced in the Magistrate’s Court to the District Court and any such transfer must meet the requirement in s 53, that is, (a) some important question of law, (b) or fact, is likely to arise. Otherwise s 53 would be otiose.

Order 89 rule 4 of the Rules of Court

8. Before I deal with the requirements in s 53, I refer to O 89 r 4 of the Rules of Court, on which some reliance was placed by Mr Cosmas Gomez, Counsel for Mr Tan. This rule provides:

‘Transfer of proceedings within the Subordinate Courts (O.89, r.4)

4. (1) Where a Subordinate Court is satisfied that any proceedings in that Court ought to be tried in some other Subordinate Court, it may order the proceedings to be transferred to the other Court.

(2) Any order under paragraph (1) may be made by the Court on its own motion or on the application by summons of any party to the proceedings.

(3) Where an order under paragraph (1) is made by the Court on its own motion, the Registrar must give notice of the transfer to every party to the proceedings.’

Mr Gomez was suggesting that this provision would enable the Magistrate’s Court to effect the transfer without Mr Tan having to satisfy the requirements in s 53.

9. On the other hand, Ms Linda Phua, Counsel for the First and Second Defendants, submitted that rule 4 provides the procedure for a transfer only if one of the requirements in s 53 is satisfied and that rule 4 should not be read in isolation.

10. I was of the view that O 89 r 4 is not a provision on procedure only. However I agreed that it should not be read in isolation. If rule 4 were interpreted to mean that any Subordinate Court has an unfettered discretion to order a transfer of proceedings from a Magistrate’s Court to a District Court so long as the court ordering the transfer is satisfied that the transfer ought to be effected, then s 53 would be otiose. It will then effectively override s 53. In my view, subsidiary legislation cannot override primary legislation and rule 4 must be read subject to s 53.

11. I found support in the Malaysian case of Kee Chai Heng v Ketua Polis Daerah Kuala Muda [1999] 2 MLJ 671. In that case, the plaintiff had filed an action against the defendant for negligence for failing to ensure that he was not harmed whilst under police custody. The action was commenced in the Sessions Court. The Sessions Court however, on its own initiative, was of the view that the claim was within the jurisdiction of a lower court, i.e the Magistrate’s Court. It then ordered that the case be transferred to that court.

12. On appeal, the High Court (Alor Setar) ruled that the Sessions Court did not have the power to...