Tey Tsun Hang v National University of Singapore

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judgment Date: 14 January 2015
• Docket Number: Originating Summons No 511 of 2014
• Date: 14 January 2015

[2015] SGHC 7

High Court

Quentin Loh J

Originating Summons No 511 of 2014

Tey Tsun Hang

Plaintiff

and

National University of Singapore

Defendant

Ravi s/o Madasamy (L F Violet Netto) for the applicant

Cavinder Bull SC, Gerui Lim and Priscilla Lua (Drew & Napier LLC) for therespondent

David Chong SC and Sivakumar Ramasamy (Attorney-General's Chambers) for thenon-party.

Borissik Svetlana v Urban Redevelopment Authority [2009] 4 SLR (R) 92; [2009] 4 SLR 92 (refd)

Comptroller of Income Tax v ACC [2010] 2 SLR 1189 (folld)

Jeyaretnam Kenneth Andrew v AG [2014] 1 SLR 345 (folld)

Manjit Singh s/o Kirpal Singh v AG [2013] 2 SLR 1108 (refd)

PP v Tey Tsun Hang [2013] SGDC 165 (refd)

Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR (R) 133; [2001] 1 SLR 644 (refd)

R v East Berkshire Health Authority, ex parte Walsh [1985] QB 152 (refd)

Ten Leu Jiun Jeanne-Marie v National University of Singapore [2015] 1 SLR 708 (refd)

Tey Tsun Hang v PP [2014] 2 SLR 1189 (refd)

Thong Ah Fat v PP [2012] 1 SLR 676 (folld)

UDL Marine (Singapore) Pte Ltd v Jurong Town Corp [2011] 3 SLR 94 (folld)

Yeap Wai Kong v Singapore Exchange Securities Trading Ltd [2012] 3 SLR 565 (refd)

Criminal Procedure Code 2010 (Act 15 of 2010) s 235

National University of Singapore (Corporatisation) Act (Cap 204 A, 2006 Rev Ed)

Prevention of Corruption Act (Cap 241, 1993 Rev Ed) ss 2, 6 (a)

Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 53, O 53 r 1 (6)

Securities and Futures Act (Cap 289, 2006 Rev Ed) s 23

Administrative Law—Judicial review—Whether declaratory relief available under O 53 Rules of Court (Cap 322, R 5, 2014 Rev Ed) —Exhaustion of remedies—Application of judicial review principles to decision of university in relation to employment of faculty—Order 53 Rules of Court (Cap 322, R 5, 2014 Rev Ed)

Administrative Law—Judicial review—Whether declaratory relief available under O 53 Rules of Court (Cap 322, R 5, 2014 Rev Ed) —Susceptibility to judicial review—Application of judicial review principles to decision of university in relation to employment of faculty—Order 53 Rules of Court (Cap 322, R 5, 2014 Rev Ed)

The applicant, Tey Tsun Hang (‘Tey’), was appointed an associate professor at the Faculty of Law in the National University of Singapore (‘NUS’) in 2010. Tey's employment with NUS was primarily governed by a letter dated 18 February 2010 (‘the Employment Agreement’).

Clause 5 of the Employment Agreement empowered NUS to terminate Tey in certain circumstances. These circumstances included, at 5.2 (a), Tey's conviction by a court of law of any crime which in the opinion of NUS was likely to bring NUS into disrepute, at 5.2 (b), insobriety, misconduct, or gross impropriety on Tey's part, and at 5.2 (c), Tey's failure to perform his duties and/or obligations. Clause 6.5 provided that Tey shall be bound by, and conform with, all policies, rules and regulations affecting NUS staff.

On 27 July 2012, Tey was charged in court with six charges of corruption under s 6 (a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed). On that same day, NUS suspended Tey from duty, pursuant to para 18 of NUS' Staff Disciplinary Procedures. Paragraph 18 empowered NUS to suspend staff members facing disciplinary proceedings. It was contended that para 18 was incorporated into the Employment Agreement by cl 6.5 of the Employment Agreement.

During the trial before the District Court, Tey admitted that he had received gifts of significant value from one of his students at NUS, that he had been in an intimate relationship with that student, and that he had breached NUS' ‘Code of Conduct’, the ‘Conflict of Interest Policy for NUS Staff’, and the ‘NUS Policy on Acceptance of Gifts by Staff’.

On 28 May 2013, Tey was convicted of the six charges of corruption. On the same day, NUS wrote to Tey to inform him of the immediate termination of his employment. At the third paragraph of the letter, NUS cited cl 5.2 (a). At the fourth paragraph, NUS cited cll 5.2 (b) and 5.2 (c). At the fifth paragraph, NUS cited cl 5.2 as the grounds for termination.

Tey appealed against the decision of the District Court and on 28 February 2014, the High Court allowed the appeal. On the same day, NUS stated in a press release that Tey may choose to petition for reinstatement.

On 3 June 2014, Tey filed this application, seeking leave under O 53 of the Rules of Court (Cap 322, R 5,2014 Rev Ed) to commence judicial review proceedings against the decisions made by NUS to suspend, and then terminate, him (‘the Impugned Decisions’).

Through his counsel, Tey objected to, amongst other judges, the judge hearing this application during a pre-trial conference on 25 June 2014. No grounds were given. During the next pre-trial conference on 30 June 2014, Tey's counsel reiterated Tey's objection to the judge hearing the matter but was informed that the hearing had been fixed before the judge. On 31 October 2014, Tey sent an e-mail to the Chief Justice and Attorney-General, reiterating his objections and stated that the judge had allegedly failed to provide written grounds for his decision in related criminal motions brought by Tey in September 2012.

Held, dismissing the application:

(1) The recusal application was dismissed as it was based on grounds that were untrue. The judge had, in fact, in addition to giving oral grounds, handed down to all counsel a nine-page, 27-paragraph, signed and dated judgment entitled ‘Brief Oral Judgment’ which he had read out in open court: at [14] and [18] .

(2) Tey's application for leave failed for two reasons. First, it concerned matters that were not susceptible to judicial review. This was because NUS' power to suspend or dismiss Tey stemmed from the employment agreement. Secondly, even if the matter were susceptible to judicial review, Tey had not exhausted all available remedies: at [35] .

(3) The Impugned Decisions were not susceptible to judicial review as they were purely contractual in nature, as between employer and employee. Further, they did not involve an exercise of any public law function: at [44] .

(4) Even if the matters were susceptible to judicial review, Tey's case at the oral hearing on 3 November 2014, as conveyed by Tey's counsel, was that he had not communicated to NUS his desire to seek reinstatement since the time of his termination. On Tey's new case, communicated by way of a letter from Tey's counsel to the court on 4 November 2014, Tey stated that he had in fact communicated to NUS immediately after the press release on 28 February. This was not contained in any affidavit. Even if he had communicated to NUS, given the dearth of evidence, it was unclear what the contents of that communication were. Further, Tey could have commenced an action in breach of contract if he felt that NUS had breached the Employment Agreement, but he had not. For these reasons, Tey had not exhausted his alternative remedies before seeking judicial review: at [29] , [47] and [48] .

(5) Tey's application, which included quashing orders, were brought out of time. The Impugned Decisions were made in July 2012 and May 2013. Even with May 2013 as a starting point, Tey's application (filed on 3 June 2014) was brought far beyond the three-month period stipulated in O 53 r 1 (6) of the Rules of Court. Tey's counsel's argument that time should only have started running as at 28 February 2014 served to confuse rather than clarify. Even with 28 February as a starting point, Tey's application was a few days out of time. More importantly, there was no principled reason for taking 28 February 2014 as a starting date, as if Tey was affronted by the Impugned Decisions, the right time to seek a remedy would have been right after the decisions were made: at [49] to [51] .

Judgment reserved.

Quentin Loh J

1 The applicant, Tey Tsun Hang (‘Tey’), filed this originating summons (‘OS’) seeking leave under O 53 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) to bring judicial review proceedings against the National University of Singapore (‘NUS’).

2 Tey sought leave to pursue the following orders:

(a) aquashing order in relation to the decision of 27 July 2012 by NUS suspending Tey from duty, on the grounds that there was a breach of natural justice, whereby Tey's fundamental rights to a fair hearing and presumption of innocence were violated, and/or on the grounds that the decision to suspend Tey was illegal, irrational, and/or procedurally improper (‘the 1st Quashing Order’);

(b) aquashing order in relation to the decision of 28 May 2013 by NUS summarily dismissing Tey from his post, on the grounds that there was a breach of natural justice, whereby Tey's fundamental rights to a fair hearing and presumption of innocence were violated, and/or on the grounds that the decision to suspend Tey was illegal, irrational, and/or procedurally improper (‘the 2nd Quashing Order’); and

(c) amandatory order against NUS to reinstate Tey to his position as of 26 July 2012 (‘the 1st Mandatory Order’).

3 The central issue in this case is whether the decisions made by NUS are susceptible to judicial review.

Background

4 Tey was appointed an associate professor at the Faculty of Law in NUS in 2010. NUS is a university corporatised in 2006 by the National University of Singapore (Corporatisation) Act (Cap 204 A, 2006 Rev Ed). Tey's employment with NUS was primarily governed by a letter dated 18 February 2010 which Tey had executed on 26 February 2010 (‘the Employment Agreement’). The relevant clauses of the Employment Agreement are as follows:

1. 5.TERMINATION OF APPOINTMENT

   5.1 The University may terminate the appointment by giving you not less than three months' prior notice in writing or three months' salary in lieu of notice ...

2. 5.2 The University may terminate your appointment immediately without prior notice and without payment of any compensation to you should you -

3. (a)...