Tan Seet Eng v Attorney-General and another matter

• Judge: Sundaresh Menon CJ
• Judgment Date: 25 November 2015
• Neutral Citation: [2015] SGCA 59
• Defendant Counsel: Hay Hung Chun, Jeyendran s/o Jeyapal, Tan Eu Shan Kevin and Chou Xiujue Ailene (Attorney-General's Chambers)
• Docket Number: Civil Appeal No 201 of 2014 and Summons No 263 of 2015
• Citation: [2015] SGCA 59
• Published date: 08 December 2015
• Year: 2015
• Subject Matter: habeas corpus,certiorari,remedies,procedure,Administrative law
• Court: Court of Three Judges (Singapore)
• Hearing Date: 27 July 2015,21 July 2015
• Plaintiff Counsel: Hamidul Haq, Thong Chee Kun, Ho Li Fong and Istyana Putri Ibrahim (Rajah & Tann Singapore LLP)

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

The rule of law is the bedrock on which our society was founded and on which it has thrived. The term, the rule of law, is not one that admits of a fixed or precise definition. However, one of its core ideas is the notion that the power of the State is vested in the various arms of government and that such power is subject to legal limits. But it would be meaningless to speak of power being limited were there no recourse to determine whether, how, and in what circumstances those limits had been exceeded. Under our system of government, which is based on the Westminster model, that task falls upon the Judiciary. Judges are entrusted with the task of ensuring that any exercise of state power is done within legal limits. In 2012, at the Rule of Law Symposium that was held in Singapore, Prof Brian Z Tamanaha observed that judges have the specific task of ensuring that the arms of government are held to the law, and in that sense, the ultimate responsibility for maintaining a system which abides by the rule of law lies with the Judiciary (“The History and Elements of the Rule of Law” [2012] SJLS 232 at p 244).

This is not new law. The underlying principle was aptly stated by Wee Chong Jin CJ almost three decades ago in Chng Suan Tze v Minister for Home Affairs and others and other appeals [1988] 2 SLR(R) 525 (“Chng Suan Tze”) at [86]:

… [T]he notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. If therefore the Executive in exercising its discretion under an Act of Parliament has exceeded the four corners within which Parliament has decided it can exercise its discretion, such an exercise of discretion would be ultra vires the Act and a court of law must be able to hold it to be so. … It must be clear therefore that the boundaries of the decision maker’s jurisdiction as conferred by an Act of Parliament is a question solely for the courts to decide. … Further, it is … no answer to refer to accountability to Parliament as an alternative safeguard. …

In this appeal, Tan Seet Eng (“the Appellant”), who was detained on 2 October 2013, seeks an Order for Review of Detention (“ORD”) pursuant to O 54 r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the ROC”). He was detained under s 30 of the Criminal Law (Temporary Provisions) Act (Cap 67, 2000 Rev Ed) (“the CLTPA”), which permits the Minister for Home Affairs (“the Minister”) to detain without trial a person who has been associated with activities of a criminal nature for a period of not more than a year if the Minister deems it necessary in the interests of public safety, peace and good order. This, however, is subject to the consent of the Public Prosecutor.

The Appellant’s application for an ORD was opposed by the Attorney-General (“the Respondent”). It was heard by a High Court judge (“the Judge”) on 19 November 2014 and dismissed on the same day. The Judge’s decision is reported as Tan Seet Eng v Attorney-General [2015] 2 SLR 453 (“the GD”), and the present appeal is brought against that decision.

We reserved judgment after hearing the parties’ submissions and, in this judgment, we set out our decision and the reasons for it. This case is of course important for the Appellant individually as he has been detained without trial. But it is also important for society as a whole because here we set out: what the limits of the Executive’s power under s 30 of the CLTPA are; what approach the court should adopt when hearing ORD applications; and how the court should carry out its constitutional responsibility in assessing whether the Executive has properly exercised its powers under the CLTPA.

The facts

On 16 September 2013, the Appellant was arrested for allegedly being involved in global football match-fixing activities (the GD at [3]). On the same day, he was also required to furnish a statement under s 27 of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“the PCA”). Assistant Superintendent Ho Kah King Joseph (“ASP Ho”), an officer from the Commercial Affairs Department (“CAD”), is said to have recorded this statement. ASP Ho also recorded statements from the Appellant on the second and third days of his arrest. On 18 September 2013, and within 48 hours of his initial arrest, the Appellant was re-arrested by ASP Ho under s 44(1) of the CLTPA and detained for a further 48 hours under s 44(2) (the GD at [4]). On 20 September 2013, and before the 48-hour detention period permitted under s 44(2) of the CLTPA expired, the Appellant was detained for a further period of 14 days under s 44(3) of the CLTPA.

On 27 September 2013, an ORD application was made by the Appellant’s lawyers on his behalf. This application was withdrawn on 4 October 2013 (the GD at [5]).

On 2 October 2013, the Minister issued and served an order under s 30 of the CLTPA on the Appellant, requiring his detention for a period of 12 months starting from that day (the GD at [6]). The basis for the detention was the Minister’s satisfaction that the Appellant had been associated with activities of a criminal nature and that his detention was necessary in the interests of public safety, peace and good order. The grounds of detention issued with the order stated that between 2009 and 2013, the Appellant had been the leader and financer of a global football match-fixing syndicate operating from Singapore, which fixed football matches in many parts of the world. The grounds of detention also furnished the following particulars of his football match-fixing activities: the Appellant recruited runners in Singapore and directed match-fixing agents and runners from Singapore to assist in fixing football matches between 2009 and September 2013; the Appellant financed and assisted with match-fixing activities in Egypt between September and December 2010 by providing a contact for a corrupt referee; the Appellant financed football match-fixing activities in South Africa in May 2010; the Appellant directed and financed football match-fixing activities in Nigeria in June 2011; the Appellant financed football match-fixing activities in Turkey in February 2011; and the Appellant assisted with attempted football match-fixing activities in Trinidad and Tobago in mid-2011 by sending a match-fixing agent to provide support to another match-fixing agent in relation to match-fixing activities.

In respect of each of the foregoing particulars, neither the number of runners recruited nor the matches fixed were specified. Nor were any particulars given as to the activities said to have been committed between mid-2011, the time of the latest particularised allegations above, and 2013, the time until when, it was alleged, the Appellant was the leader and financer of a global match-fixing syndicate.

A two-day hearing before the Criminal Law Advisory Committee took place on 17 October 2013 and 5 November 2013 (the GD at [7]). The Appellant was legally represented at those proceedings and his lawyers made submissions on his behalf. On 5 November 2013, the advisory committee submitted its written report with its recommendations to the President in accordance with s 31(2) of the CLTPA. The President confirmed the detention order in accordance with s 31(3) of the CLTPA on 7 April 2014, and the Appellant’s lawyers were informed of the President’s decision by a letter dated 8 April 2014 (the GD at [8]). The advisory committee’s report is not available to us. In any case, it is a body that performs only an advisory function and has no decision-making powers.

The Appellant’s lawyers wrote to the Criminal Law Advisory Committee (Review) on 23 September 2014, requesting that it consider releasing the Appellant unconditionally or placing him under police supervision instead (the GD at [9]). The review committee replied on 29 September 2014, stating that it had reviewed the matter and submitted a report to the President. The President, after considering the matter, then extended the Appellant’s detention order for a period of one year with effect from 2 October 2014, with reference to the review committee’s report and on the advice of the Cabinet. The review committee’s report was also not available to us.

The decision below

In the court below, the Appellant made submissions on four issues. We will set out in brief each of these submissions together with the Judge’s holding thereon. First, the Appellant submitted that both the Minister’s and the President’s decisions to issue and confirm the detention order could be reviewed on the grounds of illegality, irrationality and procedural impropriety (the GD at [11]–[16]). The Respondent accepted that both decisions were susceptible to review, but took the view that, at least as far as the Judge was concerned, the applicable test was set down in Kamal Jit Singh v Ministry of Home Affairs and others [1992] 3 SLR(R) 352 (“Kamal Jit Singh”) where it was held that the applicant had to show probable cause that the detention was unlawful (the GD at [17]). The Respondent submitted that since Kamal Jit Singh was a decision of the Court of Appeal concerning s 30 of the CLTPA, the High Court was bound by it (the GD at [21]). The Judge held that the Appellant bore the burden of showing probable cause that the detention was unlawful on the grounds of illegality, irrationality or procedural impropriety, while the detaining authority bore the burden of establishing that the detention was lawful (the GD at [28]).

Second, the Appellant submitted that his detention was “illegal” on one or more of the following grounds: (a) the activities undertaken by the Appellant did not fall within the category of offences contemplated by the CLTPA; (b) the CLTPA was to be used...