Tee Soon Kay v Attorney-General

• Judge: Lai Siu Chiu J
• Judgment Date: 04 May 2007
• Neutral Citation: [2007] SGCA 27
• Year: 2007
• Subject Matter: Constitution,Acceptance,Contract,Public officers voluntarily opting irrevocably to convert from pension scheme to Central Provident Fund scheme and then attempting to revert to pension scheme after more than 30 years,Whether public officer's right to pension protected under Constitution,Constitutional Law,Public officers voluntarily opting irrevocably to convert from pension scheme to Central Provident Fund scheme,Statutory Interpretation,Sections 8(1), 9(d) Pensions Act (Cap 225, 2004 Rev Ed),Whether option entered into by public officers binding,Whether public officers having right to pension under s 9(d) Pensions Act such that condition of irrevocability governing conversion from pension scheme to CPF scheme ultra vires,Articles 112, 113, 115 Constitution of the Republic of Singapore (1999 Rev Ed),Interpretation,Construction of statute,Formation
• Published date: 15 May 2007
• Court: Court of Three Judges (Singapore)
• Citation: [2007] SGCA 27
• Defendant Counsel: Walter Woon, Owi Beng Ki and Leonard Goh Choon Hian (Attorney-General's Chambers)
• Plaintiff Counsel: Ramayah Vangatharaman (Wee Ramayah & Partners)

4 May 2007 Judgment reserved.

Andrew Phang Boon Leong JA (delivering the judgment of the court):

Introduction

1 This is an appeal by Mr Tee Soon Kay, together with and on behalf of 99 public officers (collectively, “the appellants”), against the trial judge’s decision in Originating Summons No 618 of 2006 (“the OS”) holding, inter alia, that the appellants were not entitled to revert to the pension scheme as they had opted to convert from the pension scheme to the Central Provident Fund (“CPF”) scheme in 1973.

Background

2 The appellants had all been appointed to the public service prior to 1 December 1972. They were Division III and IV officers. When first employed, they were on the pension scheme and were under the Pensions Act (Cap 55, 1970 Rev Ed) which is now the Pensions Act (Cap 225, 2004 Rev Ed) (“the Act”). As counsel for the appellants, Mr Ramayah, has referred throughout to the latest versions of the Act as well as the Constitution of the Republic of Singapore (1999 Rev Ed) (“the Constitution”), we shall rely on them in making our determination. In any event, the substance of the various provisions and articles has remained the same during the relevant period.

3 On 14 May 1973, the Permanent Secretary (Finance-Budget) (“PS (Finance)”) issued a directive entitled Finance Circular No 8 of 1973 (“FC No 8/73”). Pursuant to FC No 8/73, the appellants had to exercise an option (“the 1973 Option”) to either remain on the existing pension scheme or convert to the CPF scheme. It was stated in the option form that the 1973 Option, once exercised, was irrevocable. Conversion to the CPF scheme presented two further options, as follows:

(a) to convert to the CPF scheme with accrued pension benefits frozen and payable as a lump sum on retirement under pensionable circumstances; or

(b) to convert to the CPF scheme with accrued pension benefits payable as commuted gratuity and reduced annual pension on retirement under pensionable circumstances.

Option (b) was applicable only to officers with not less than ten years’ pensionable service.

4 The appellants chose to convert to the option described in [3(a)] above. However, some 33 years later, in October 2005, the majority of the appellants wrote to the relevant government authorities expressing their desire to repay the Government the total amount paid by the Government to each of their CPF fund accounts with interest in accordance with s 9(d) of the Act. By doing so, they wished to have their respective CPF membership period count for the purposes of receiving a pension upon retirement instead. The appellants’ requests were rejected by the Government, thus giving rise to the present proceedings.

5 The appellants commenced the OS and sought the following declarations:

(a) that the purported condition of irrevocability in the 1973 Option was ultra vires, null and void, and of no effect; and

(b) that the appellants were entitled to rejoin the pension scheme, and to have their full service in pensionable office counted for the purposes of the Act, pursuant to the terms of s 9(d) of the Act.

6 The impact of this court’s decision will not be limited to the 100 appellants on the record. According to the affidavit of one Goh Soon Poh dated 3 May 2006 filed on behalf of the respondent, a total of 7,523 public officers (out of 12,158) participated in the 1973 Option. Out of these 7,523 officers, 927 are still in the civil service. Given the important issues that were raised as well as the additional consideration that a great many public officers would be affected by the outcome of this appeal, this court reserved judgment in order to consider the relevant legal material as well as arguments before it in greater detail. We now proceed to set out the detailed grounds for our decision.

Proceedings in the High Court

7 The trial judge (“the Judge”) held that s 9(d) of the Act could not aid the appellants in their attempt to return to the pension scheme as it did not create any right to a pension (see Tee Soon Kay v AG [2006] 4 SLR 385 (“the GD”)). Section 9(d) was simply a provision which barred the payment of a pension if the preconditions were not met. That the appellants had no right to a pension was further buttressed by s 8(1) of the Act which provided that no officer shall have “an absolute right” to a pension. Furthermore, the legislative history of s 9(d) showed that it had nothing to do with a pensionable officer’s right to return to the pension scheme by paying back the amounts made by the Government into their respective CPF accounts. Instead, it was clear that s 9(d) was enacted to ensure that the Government did not pay twice for retirement benefits.

8 The appellants also argued in the court below that the PS (Finance) had no legislative authority to bar public officers to whom the Act applied from the pension scheme and to make the exercise of the 1973 Option irrevocable. In support of this argument, the appellants pointed to the introduction of s 6(3) of the Act (s 3(1A) at the material time) and the promulgation of reg 3 of the Pensions (Conversion to the Central Provident Fund Scheme) Regulations 1986 (GN No S 237/1986) (“the 1986 Regulations”) as an acknowledgment by the Government that it did not have the power in 1973 to stipulate that the decision to convert to the CPF scheme was irrevocable. Section 6(3) of the Act provides as follows:

The President may, in making regulations under this section, provide for any officer or class of officers holding pensionable offices to opt for the provident fund scheme applicable to non-pensionable employees of the Government under the Central Provident Fund Act (Cap. 36) and for the terms and conditions of such option.

9 Regulation 3 of the 1986 Regulations provides as follows:

Option.

3.—(1) An officer to whom these Regulations apply may be given an option to convert to the provident fund scheme applicable to non-pensionable employees of the Government under the Central Provident Fund Act.

(2) The option exercised by the officer shall be irrevocable except that he may be required to revert to the pensionable service if he is appointed or transferred to a scheme of service which is excluded from these Regulations.

10 The Judge dismissed the appellants’ argument on the basis that it could not “without more, be said that the [PS (Finance)] lacked the said power merely because the position regarding conversion to the CPF scheme was subsequently put on a statutory footing in 1986” (at [29] of the GD). The Judge observed that “[w]hether the [PS (Finance)] lacked the power to stipulate that a decision under the 1973 Option was irrevocable depends on the law as it stood at the material time” and that prior to the introduction of the 1986 Regulations, “the exercise by senior public officers of this option had been implemented through internal directions and it was thought that as a matter of good governance, issues affecting public officers should be made absolutely transparent by the 1986 amendments” (ibid).

11 The Judge also held that the appellants’ reliance on Art 112 of the Constitution to support their argument that they had a right to a pension was misplaced because Art 112 merely directed the mind of the pension-awarding authority to the law that was to be applied should a pension be granted to a public officer. Furthermore, Art 112(3) of the Constitution envisaged that a public officer might opt for different forms of retirement benefits under the law and the law applicable to the option made by that public officer was deemed to be more favourable than any other law for which he might have opted.

12 Finally, the Judge accepted the respondent’s argument that the appellants were estopped from resiling from their decision to convert to the CPF scheme and that “it [was] far too late to set the clock back” (at [33] of the GD). The Government had made the requisite contributions to the appellants’ CPF accounts for the past 33 years and had not made any financial provision for the appellants’ pension benefits during that same period. In the light of the Judge’s finding on whether the appellants could be said to have a right to a pension, the appellants’ argument that estoppel could not arise in relation to the right to a pension, which was conferred by statute and the Constitution, also failed.

The appellants’ arguments

13 Mr Ramayah argued that even though s 8(1) of the Act stated that no officer shall have an “absolute right” to a pension, this could not be read as saying that a public officer had “no right” to a pension. A public officer had a right to a pension, albeit a right which was contingent upon retirement in pensionable circumstances. Some of the instances whereby an officer would lose his or her right to a pension would be if he or she was dismissed, was found to be guilty of “negligence, irregularity or misconduct” under s 8(2) of the Act, or was adjudged a bankrupt under s 17 of the Act.

14 In support of their argument that public officers have a right to a pension, the appellants pointed to the Act which speaks of pensions “which would be granted” [emphasis added] to the pensioner (s 17(1) of the Act) or “which the pensioner would have been entitled ... to” [emphasis added] (s 18(3) of the Act) in contrast to the permissive tenor of the corresponding Sri Lankan legislation which speaks of pensions which “may be awarded” or “may be granted” that was considered by the Sri Lankan Supreme Court in Attorney-General v Abeysinghe (1975) 78 NLR 361 (“Abeysinghe”). With respect, we are of the view that this particular argument is unpersuasive. Both ss 17(1) and 18(3) of the Act relate to situations where a pension would not be granted; neither, in other words, when read wholly and in context, points to a legal right to a pension as such.

15 The appellants also argued that a public officer’s right to a pension was constitutionally entrenched. In support of this contention, the appellants quoted a speech made by...