Yip Kok Seng v Traditional Chinese Medicine Practitioners Board

• Jurisdiction: Singapore
• Judgment Date: 06 August 2010
• Date: 06 August 2010
• Docket Number: Originating Summons No 113 of 2010
• Court: High Court (Singapore)

Yip Kok Seng

Plaintiff

and

Traditional Chinese Medicine Practitioners Board

Defendant

[2010] SGHC 226

Woo Bih Li J

Originating Summons No 113 of 2010

High Court

Administrative Law–Traditional Chinese Medicine Practitioners Act–Whether Traditional Chinese Medicine Practitioners Board acted ultra vires s 30 (1) Traditional Chinese Medicine Practitioners Act in investigating conduct of practitioner without complaint supported by statutory declaration–Section 30 (1) Traditional Chinese Medicine Practitioners Act (Cap 333A, 2001 Rev Ed)–Whether Traditional Chinese Medicine Practitioners Board had no jurisdiction under Traditional Chinese Medicine Practitioners Act because alleged misconduct did not occur in course of practicing traditional Chinese medicine–Traditional Chinese Medicine Practitioners Act (Cap 333A, 2001 Rev Ed)

Administrative Law–Remedies–Whether declaration or certiorari more appropriate for acts of Traditional Chinese Medicine Practitioners Board alleged to be in excess of its jurisdiction and powers under Traditional Chinese Medicine Practitioners Act–Traditional Chinese Medicine Practitioners Act (Cap 333A, 2001 Rev Ed)

Civil procedure–Originating processes–Whether administrative law action ought to have been brought under O 53 Rules of Court instead of ordinary action–Order 53 Rules of Court (Cap 322, R 5, 2006 Rev Ed)

The plaintiff, Yip Kok Seng, was a registered acupuncturist with the defendant, the Traditional Chinese Medicine Practitioners Board ( the Board ) constituted under the Traditional Chinese Medicine Practitioners Act (Cap 333A, 2001 Rev Ed) ( the Act ). On 2 May 2008, [B] complained that Yip molested her during an appointment. This was not supported by a statutory declaration. On 6 May 2008, Toh Keng Wang, an Inspection Officer of the Board, visited Yip's wellness centre to inspect it and Mr Yip's medical records. On 8 May 2008, the Board informed [B] that her complaint had to be supported by a statutory declaration (as required under reg 3 (2) of the Traditional Chinese Medicine Practitioners (Investigation of Complaints) Regulations (Cap 333A, Rg 4, 2002 Rev Ed)). [B] lodged the complaint with the required statutory declaration on 2 June 2008. The Board subsequently directed that the matter be referred to an Investigation Committee ( IC ) under the Act.

Yip then brought this action by way of originating summons. After clarification, Yip chose to pursue only two prayers. Prayer 1 was for a declaration that the Board lacked the jurisdiction to investigate Yip's conduct because it did not occur in the practice of traditional Chinese medicine. Prayer 2 was for a declaration that the Board actedultra vires the Act when it acted on [B]'s complaint of 2 May 2008, which was not supported by a statutory declaration.

A preliminary issue arose as to whether Yip should have brought his action under O 53 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed). Amongst other thingsO'Reilly v Mackman [1983] 2 AC 237 was cited.

Held, dismissing the action:

(1) The ratio of O'Reilly v Mackman, where it was held that that it would generally be contrary to public policy and an abuse of the process of the court for a plaintiff complaining of a public authority's infringement of his public law rights to seek redress by ordinary action, was based on the availability of a unified procedure by which all the remedies for the infringement of public law rights could be obtained. In Singapore, the procedure was bifurcated, and because of this the ratio in O'Reilly v Mackman was inapplicable. The only preliminary question was whether Yip should have applied for certiorari under O 53: at [20] and [21].

(2) On a plain reading of O 15 r 16, the fact that certiorari was or could be claimed was not a ground for refusing declaratory relief. The wide powers of the court to give declaratory relief also meant that there was likely to be a large degree of overlap between declaration and certiorari: at [25].

(3) If Yip succeeded on prayer 1, a declaration would suffice - an ultra vires decision was a nullity and after it was declared to be so there was nothing left to be quashed by certiorari.There was also no argument that the Board was in any way vexed or prejudiced because Yip did not proceed by way of O 53. For prayer 2, the complaint was against Toh's investigation on 6 May 2008. The act had been completed and had no continuing legal effect which could be quashed. A declaration was the only possible remedy, should the investigation be found illegal. Also, if prayer 1 was to proceed under O 53, Yip would have to bring two applications. Accordingly, Yip was not required to proceed by way of O 53 to obtain certiorari: at [30] to [34].

(4) As regards the substantive merits of prayer 1, it should be for the IC to decide in the first instance whether it had the jurisdiction to adjudicate the matter brought before it: at [35].

(5) As regards prayer 2, the Board could send Toh to inspect Yip's centre pursuant to s 30 (1) of the Act, which was not premised on a complaint being made: at [36] and [37].

[Observation: The present bifurcated procedure, under which only the prerogative remedies could be obtained under O 53, was both uncertain and cumbersome. Other jurisdictions, eg, the United Kingdom, Ontario, New Zealand and Malaysia had reformed their procedures, and it might be that reform was also needed in Singapore: at [17] to [19].

Under s 30 (1) of the Act, Toh could not inspect Yip's medical records. Governing bodies of regulatory, professional and other organisations should ensure that they acted in accordance with their power and duties under law. If they failed to do so, they should be prepared to acknowledge the fact: at [38].]

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (refd)

Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR (R) 294; [1996] 1 SLR 609 (folld)

Chan Hiang Leng Colin v PP [1994] 3 SLR (R) 209; [1994] 3 SLR 662 (not folld)

Dow Jones (Asia) Inc, Re Application by [1987] SLR (R) 627; [1987] SLR 505 (folld)

Drilex Systems Pte Ltd v Registrar of Companies [1989] 2 SLR (R) 511; [1989] SLR 1051 (refd)

Eshah bte Sa'at v Meriam bte Sa'at [1975] 2 MLJ 97 (refd)

O'Reilly v Mackman [1983] 2 AC 237 (not folld)

Punton v Ministry of Pensions and National Insurance (No 2) [1964] 1 WLR 226; [1964] 1 All ER 448 (refd)

Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 (refd)

Teh Guan Teik v Inspector General of Police [1998] 3 MLJ 137 (refd)

Vine v National Dock Labour Board [1957] AC 488 (refd)

Wong Keng Leong Rayney v Law Society of Singapore [2006] 4 SLR (R) 934; [2006] 4 SLR 934 (folld)

YAB Dato' Dr Zambry bin Abd Kadir v YB Sivakumar a/l Varatharaju Naidu (AG Malaysia, intervener) [2009] 4 MLJ 24 (refd)

Rules of Court (Cap 322,R 5, 2006 Rev Ed) O 15r 16, O 53 (consd)

Traditional Chinese Medicine Practitioners Act (Cap 333A, 2001 Rev Ed) s 30 (1) (consd)

Traditional Chinese Medicine Practitioners (Investigation of Complaints) Regulations (Cap 333A, Rg 4,2002 Rev Ed) reg 3 (2)

Judicature Amendment Act 1972 (Act 30 of 1972) (NZ) s 4

Judicial Review Procedure Act (RSO 1990, c J1) (Can) s 2

Rules of the High Court 1980 (PU (A) 50/1980) (M'sia) O 15r 16, O 53

Rules of the Supreme Court1883 (UK) O 25r 5

Rules of the Supreme Court 1965 (SI 1965/1776) (UK) O 53

P Padman (K S Chia Gurdeep & Param) for the plaintiff

Rebecca Chew and Mark Cheng (Rajah & Tann LLP) for the defendant.

Woo Bih Li J

Introduction

1 The plaintiff, Yip Kok Seng ( Mr Yip ) said that he is a registered acupuncturist with the defendant, the Traditional Chinese Medicine Practitioners Board ( the Board ) and not a full Traditional Chinese Medicine ( TCM ) physician. He runs a wellness centre at Block 463 #02-21 Crawford Lane known as the National and Electro Wellness Centre ( the Centre ).

2 He had two primary complaints. The first was that the Board had acted ultra vires its powers when it acted on a complaint made by [B] on 2 May 2008 which was not supported by a statutory declaration as required by reg 3 (2) of the Traditional Chinese Medicine Practitioners (Investigation of Complaints) Regulations (Cap 333A, Rg 4, 2002 Rev Ed).

3 The second was that the Board lacked jurisdiction to investigate a second complaint dated 2 June 2008 by [B] because the conduct complained of was not performed in the course of a healing session under TCM methods.

4 In his action, Mr Yip sought the following reliefs:

1. 1. There be a declaration that the [Board] lacks the jurisdiction to investigate [Mr Yip's] conduct in respect of a complaint made against him by [B] on 2 June 2008 because:

   1. a. The conduct complained of was not performed in the course of a healing session under [TCM]; and

   2. b. The [Board] has no...