Tey Tsun Hang v AG

• Judgment Date: 01 December 2014
• Date: 01 December 2014
• Docket Number: Originating Summons No 512 of 2014 (Summons No 3987 of 2014)
• Court: High Court (Singapore)

Tey Tsun Hang

Plaintiff

and

Attorney-General

Defendant

[2014] SGHC 253

Quentin Loh J

Originating Summons No 512 of 2014 (Summons No 3987 of 2014)

High Court

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 public body concerning immigration in Singapore—Order 53 Rules of Court (Cap 322, R 5, 2014 Rev Ed)

Civil Procedure—Striking out—Originating Summons—Whether abuse of process under O 18 r 19 (1) (d) Rules of Court (Cap 322, R 5, 2014 Rev Ed) —Order 18 r 19 (1) (d) Rules of Court (Cap 322, R 5, 2014 Rev Ed)

The applicant, Tey Tsun Hang (‘Tey’), a Malaysian citizen, became a permanent resident of Singapore on 31 December 1997. Permanent residents required re-entry permits (‘REPs’) to leave, and return to, Singapore while retaining their permanent residency status. Tey's REP was granted on 4 January 2003, and was valid until 4 January 2013. His daughter, too, was a permanent resident holding an REP that was valid until 4 January 2013. She left Singapore in November 2012.

On 27 March 2012, the Immigration & Checkpoints Authority of Singapore (‘ICA’) was informed that Tey was under investigation by the Corrupt Practices Investigation Bureau. On 23 July 2012, Tey made applications for new REPs to be issued to him and his daughter. On 24 July 2012, Tey was informed that both applications were ‘cancelled’.

On 28 May 2013, Tey was convicted of six charges of corruption under the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) by the District Court. On 6 June 2013, after Tey's REP had expired, he made a second online application for an REP, this time only for himself. This, too, was unsuccessful. This was because only applicants holding on to valid REPs are eligible to apply online.

On 10 October 2013, Tey went to the ICA headquarters to submit an application for an REP. Again he made no application for his daughter. He stated that he required an REP to travel out of Singapore on 15 October 2013 to visit his frail parents. He was interviewed by two ICA officers.

It was the policy of the ICA not to grant an REP to a permanent resident who had been convicted of an offence. However, an exception was made for Tey on compassionate grounds, and on 14 October 2013, at 3.50 pm, the ICA informed him that his application for an REP was approved. The REP was stated to be valid for one month.

Tey agreed to go to the ICA headquarters by 5.30 pm to complete the necessary formalities for the REP to be issued, namely, to pay a $10 administrative fee. However, at 5.20 pm, Tey informed the ICA officer that he was not going to turn up as he felt that a one-month REP was meaningless. Tey did not turn up at the ICA headquarters.

On 15 October 2013, at about 9.00 am, Tey attempted to leave Singapore through the Tuas checkpoint. The ICA officers reminded him that if he left, he would lose his permanent residency status, as he did not have a valid REP. Nevertheless, after signing an acknowledgement that he was aware of the consequences of his exit from Singapore without an REP, he chose to leave.

On 28 February 2014, the High Court allowed Tey's appeal against the decision of the District Court, and acquitted him of his charges for corruption. On 4 June 2014, Tey filed this application, seeking leave under O 53 of the Rules of Court (Cap 322, R 5,2014 Rev Ed) to bring judicial review proceedings against the ICA, which was represented by the Attorney-General (collectively, ‘the Respondent’).

He initially sought quashing orders in relation to the cancellation of his applications for REPs for him and his daughter on 24 July 2012, and mandatory orders compelling the Respondent first to ‘reinstate’ his and his daughter's permanent residency status, and second to consider and process his applications for REPs for him and his daughter.

On 14 August 2014, the Respondent applied to strike out Tey's application on the ground that it was, among other things, an abuse of the court's process. During the hearing on 5 November 2014, after counsel for the Respondent completed his submissions on his striking out application, counsel for Tey sought leave to amend his application, by withdrawing the quashing orders and amending the first mandatory order replacing the word ‘reinstate’ with ‘reconsider’. Counsel for the Respondent did not object save as to costs. The court allowed these amendments and reserved on the question of costs.

Held, granting the application in Summons No 3987 of 2014:

(1) There was an overlap between applications for leave and striking out. Both were concerned with preventing wastage of judicial time and resources: at [34] .

(2) In identifying what an abuse of process was, three guideposts were useful. First, proceedings were an abuse of process when they were manifestly groundless or without foundation or served no useful purpose. Secondly, the judicial process should not be allowed to supplant the normal statutory appeal procedure. Thirdly, a delay in bringing proceedings might constitute an abuse of process: at [37] .

(3) The application should be struck out for three reasons. First, in the light of s 39 A of the Immigration Act (Cap 133, 2008 Rev Ed), the court had no jurisdiction to review the merits of the Controller's exercise of discretion in dealing with Tey's REP applications: at [38] to [46] .

(4) Secondly, Tey had failed to pursue his statutory right to appeal to the Minister against the decisions of the ICA on 24 July 2012, and therefore failed to exhaust his remedies before seeking judicial review: at [47] .

(5) Thirdly, Tey's conduct was a clear case of abuse of process. This could be seen from his volte face on 14 October 2013, his choosing to leave Singapore despite being warned of the consequences to his permanent residency status and then his resort to the court in seeking the first mandatory order.

[Observation: Even if the application were not struck out, leave would have been denied: at [62] .]

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

Bunga Melati 5, The [2012] 4 SLR 546 (folld)

Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR (R) 582; [2006] 1 SLR 582 (refd)

Chiu Teng @ Kallang Pte Ltd v Singapore Land Authority [2014] 1 SLR 1047 (refd)

Chua Choon Lim Robert v MN Swami [2000] 2 SLR (R) 589; [2000] 4 SLR 494 (refd)

Gabriel Peter & Partners v Wee Chong Jin [1997] 3 SLR (R) 649; [1998] 1 SLR 374 (folld)

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

Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2002] 3 MLJ 72 (refd)

Preston, Re [1985] AC 835 (refd)

Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398 (refd)

Tan Eng Hong v AG [2012] 4 SLR 476 (refd)

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

Immigration Act (Cap 133, 2008 Rev Ed) s 39 A (consd) ;ss 10, 11, 11 (3) , 11 (6) , 39 A (1)

Planning Act (Cap 232, 1998 Rev Ed) ss 22 (1) , 22 (7)

Prevention of Corruption Act (Cap 241, 1993 Rev Ed)

Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 18 r 19 (1) (d) (consd) ;O 18 r 19, O 18 r 19 (1) (a) , O 18 r 19 (1) (b) , O 53, O 53 r 1, O 53 r 1 (2) , O 53 r 1 (6)

Immigration Act 1959/63 (No 155 of 1975) (M'sia) ss 59 A, 59 A (1) , 65 (1) (c)

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

David Chong SC, Elaine Liew and Elgina Chua (Attorney-General's Chambers) for the respondent.

Judgment reserved.

Quentin Loh J

1 The applicant, Tey Tsun Hang (‘Tey’), filed this Originating Summons (‘OS’) on 4 June 2014. He sought leave under O 53 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) to bring judicial review proceedings against the Immigration & Checkpoints Authority of Singapore (‘the ICA’), which was represented by the Attorney-General (collectively, ‘the Respondent’).

2 Tey sought the following orders:

(a) an order quashing the cancellation of Tey's application for the renewal of his and his daughter's re-entry permits (‘REPs’) sometime between 23 and 24 July 2012 by the Respondent, on the grounds of a breach of natural justice (‘the 1st Quashing Order’);

(b) an order quashing the cancellation of Tey's application for the renewal of his and his daughter's REPs on the grounds that the cancellation was made arbitrarily and/or unreasonably (‘the 2nd Quashing Order’);

(c) amandatory order against the Respondent to reinstate the permanent residency (‘PR’) status of Tey and his daughter (‘the 1st Mandatory Order’); and

(d) amandatory order against the Respondent to consider and process Tey's application for the renewal of his and his daughter's REPs in full accordance with the fundamental principles of due process, natural justice and procedural propriety (‘the 2nd Mandatory Order’).

The dates ‘between 23 and 24 July 2012’ were used because, although Tey had applied for the REPs on 23 July 2012, he claimed to have only been informed that the applications were ‘cancelled’ on 24 July 2012, when he accessed the online portal through which the applications were made. For the purposes of this judgment, I will assume that 24 July 2012 was the date on which the REP applications were cancelled.

3 The Respondent applied, on 14 August 2014, to strike out Tey's OS on the ground that, amongst other things, it was an abuse of the process of the court.

4 Parties appeared before me on 5 November 2014. I first heard counsel for the ICA, Mr David Chong SC (‘Mr Chong SC’), on his striking out application under O 18 r 19 of the Rules of Court. As the facts and arguments in this case for a striking out and for leave under O 53 r 1 of the Rules of Court overlapped significantly, I then heard counsel for Tey, Mr Ravi s/o Madasamy (‘Mr Ravi’), on his response, in which he also included the grounds upon which he would be seeking leave. I exceptionally...