Yeap Wai Kong v Singapore Exchange Securities Trading Ltd

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Philip Pillai J
• Judgment Date: 09 May 2012
• Neutral Citation: [2012] SGHC 103
• Citation: [2012] SGHC 103
• Plaintiff Counsel: Tan Cheng Han SC and Angie Tan An Qi (TSMP Law Corporation)
• Docket Number: Originating Summons No 72 of 2012
• Date: 09 May 2012
• Published date: 29 May 2012
• Subject Matter: Judicial review,Administrative Law
• Defendant Counsel: Davinder Singh SC, Una Khng, Pardeep Singh Khosa, Isaac Lum and Harpreet Kaur Dhillon (Draw & Napier LLC)
• Hearing Date: 20 February 2012,26 April 2012,18 April 2012,09 February 2012,24 April 2012,19 April 2012,21 February 2012,20 April 2012

Philip Pillai J: Introduction

This application raises two issues: first, whether the Singapore Exchange Securities Trading Limited’s (“SGX-ST”) public reprimand of a director of an SGX-ST listed company is susceptible to judicial review? And second, if it is, whether the applicant was accorded a fair hearing as required by the rules of natural justice?

The applicant, who was, during the material time, a non-executive director of China Sky Fibre Chemical Limited (“China Sky” or “Company”), applied for leave to apply for a quashing order of the SGX-ST’s reprimand of him, on 16 December 2011 (“SGX-ST Reprimand”) and was granted leave. The gist of his complaint is that SGX-ST reprimanded him in breach of the rules of natural justice.

Judicial Review

Judicial review is the limited means through which the court holds bodies exercising a “public” function to fundamental thresholds of legality. It is to be emphasised that in judicial review the court is not concerned with the merits or correctness of the decision under review. Judicial review is not an appeal to the court nor does the court substitute its own judgment for that of the decision-maker. In the exercise of its supervisory jurisdiction, the court confines itself to reviewing the decision making process, to ensure that the process met the standards of “legality, rationality and procedural propriety” (per Lord Diplock in Council of Civil Service Union v. Minis ter for the Civil Services [1985] A.C. 374). Since judicial review is confined to decisions which are characterised as being of a public function, it is unavailable for the enforcement of private law rights, for which private law and other court processes are readily available.

Is the SGX-ST’s Reprimand susceptible to Judicial Review?

The foundations of Singapore law on judicial review are the common law principles as they have developed in England prior to the influence and impact of the European Union law, the latter having no application to Singapore. Accordingly it is necessary for this court to return to the pre-1972 bedrock judicial review principles, and to apply those principles to the present case. In considering post-1972 judicial review decisions in England, care has to be taken to extract only those common law principles where these principles have not morphed into English law judicial review principles as a result of European Union law, such as the European Convention on Human Rights which was incorporated into English law by the 1998 UK Human Rights Act. A similar cautionary approach is warranted when considering judicial review decisions by the Australian courts which have been shaped by the Australian Administrative Decisions (Judicial Review) Act 1977 which has no application to Singapore.

Michael Fordham, Judicial Review Handbook, 2nd ed, 1997 (at p 5) provides a useful bird’s eye distillation of the court’s approach to judicial review at pages 145, 148 and 172:

Judicial review is: the means by which High Court judges scrutinise public law functions, intervening as a matter of discretion, to quash, prevent, require, clarify or compensate, not because they disagree with the merits judgment, but so as to right a recognisable public law wrong, whether, unlawfulness, unreasonableness or unfairness. The applicant is a person with sufficient interest, who lacks any suitable alternative remedy, and who must commence proceedings promptly.” “Judicial review is a contextual, discretionary jurisdiction which is changing dramatically and incrementally. (At p. 145)

Courts promote their interventionist capacities, driven by the rule of law and aversion to inconsistency and abuse: Judicial review is the Courts’ way of enforcing the rule of law: ensuring that public decision-making is undertaken according to law and is accountable to law. In other words, reminding public bodies that they are not above the law. (At p.148)

Courts adopt a primary deference, preserving for public bodies a margin of responsibility and choice: Public decision-makers exist for a purpose and there must necessarily be questions which it are for them, rather than judges, to decide.

Principles of judicial review are a Court-struck balance, faithful to both vigilance and restraint: The tension between vigilance and restraint is a main undercurrent of judicial review, responsible for producing the principles which govern the supervisory jurisdiction. (At p.172)

The foundational common law principles in England have as their starting point the source test (“Source Test”), which was then extended by the nature test (“Nature Test”) to take into account the changing public governance landscape. The development from the statutory Source Test where the court looks to whether the body had its origins in statutes, to the Nature Test where the court looks at the nature of the decision, is discernable in the following sequence of the seminal English judgments. In Reg v Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 QB 864, per Lord Parker CJ at 882 where he describes the limits of the origins of certiorari, (today the quashing order):

... They have varied from time to time being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned. ... We have, as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the board in my judgment comes fairly and squarely within the jurisdiction of this court...

At 884 to 885, Diplock LJ observed:

... If new tribunals are established by acts of government, the supervisory jurisdiction of the High Court extends to them if they possess the essential characteristics upon which the subjection of inferior tribunal to the supervisory control of the High Court is based. What are these characteristics? It is plain on the authorities that the tribunal need not be one whose determinations give rise directly to any legally enforceable right or liability. Its determination may be subject to certiorari notwithstanding that it is merely one step in the process which may have the result of altering the legal rights or liabilities of a person to whom it relates...

In Reg v Panel on Take-overs and Mergers, ex parte Datafin plc And Another [1987] 1 QB 815 (“Datafin”), Sir John Donaldson MR described the same development in the following manner at 838:

... The Criminal Injuries Compensation Board, in the form which it then took, was an administrative novelty. Accordingly it would have been impossible to find a precedent for the exercise of the supervisory jurisdiction of the court which fitted the facts. Nevertheless the court not only asserted its jurisdiction, but further asserted that it was a jurisdiction which was adaptable thereafter. ...In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction...

[emphasis added]

In the modern era, public policy is increasingly effected not only by government and statutory bodies but also through self-regulating entities in sectors where the domain nature and complexity of the sector requires front- line expertise coupled with back-line regulators to regulate the relevant sector. The question arose in England in Datafin, with respect to the then newly created London Panel on Take-overs which operated the City Code on Take-overs and Mergers (“London Panel”). The legal question there (and in this application) was succinctly framed by Sir John Donaldson in Datafin at 828 in the following terms:

… whether the courts of this country have any jurisdiction to control the activities of a body which de facto exercises what can only be characterised as powers in the nature of public law powers...

While the London Panel “oversees and regulates a very important function of the United Kingdom financial market ... [it performs] this function without visible means of legal support” (see Datafin at 824). The court also noted that the London Panel had no “statutory, prerogative or common law powers and it is not in a contractual relationship with the financial market or those who deal in that market” (see Datafin at 825).

While lacking statutory authority, Sir John Donaldson MR noted (at 826) that the Panel:

… exercises immense power de facto by devising, promulgating, amending and interpreting the City Code on Take-overs and Mergers, by waiving or modifying of the code in particular circumstances, by investigating and reporting upon the alleged breaches of the code and by application or threat of sanctions. These sanctions are no less effective because they are applied indirectly and lack a legally enforceable base.

...

The unspoken assumption, which I do not doubt is a reality, is that the Department of Trade and Industry or, as the case may be, the Stock Exchange or other appropriate body would in fact exercise statutory powers or contractual powers to...