Académique Documents
Professionnel Documents
Culture Documents
- Caveat: s 7
– No action except for breach of contract on account of anything done or
omitted or refused to be done by government officer in ‘exercise of public
duties’.
– 4 specific categories listed – construction, maintenance of eg railways,
roads bridges, schools, hospitals, public buildings, drainage works, rivers,
waterways. (ie all public works – cannot take out action for such cases)
JUDICIAL REVIEW
- The process of judicial review can be defined as that by which the High Court
exercises its supervisory jurisdiction over the proceedings and decisions of inferior
courts, tribunals and other bodies or persons who carry out quasi-functions or who
charged with the performance of public acts and duties.
- Colin Chan v PP [1994] 3 SLR 642
– On the scope of the Court’s power under s 18(2) SCJA.
– Effect: “It is one thing to say that the court has a specific power to review, but
another to infer that the court can exercise that power in every proceeding
brought before it”.
– (1) A court’s powers, when sitting as an appellate court, are necessarily limited
to that of the subordinate court from which the appeal emanated.
– (2) A criminal court has jurisdiction to consider a defence alleging that a
subsidiary legislation is substantially invalid but cannot consider whether it is
procedurally invalid. Subsidiary legislation can therefore only be challenged if
it is ultra vires its enabling Act or is invalid on the face of it.
– (3) It is clearly not proper to raise ultra vires issues which extend beyond
substantive validity, in the sense of being clearly wrong on the face of it, in
subordinate court proceedings. Nevertheless, the court had to still take into
account the fact that both parties were ad idem with each other as to the
court’s competence in determining all the issues raised. This was, therefore, an
appropriate case for the application of Lord Diplock’s second exception in
O’Reilly v Mackman. The facts of this case being undoubtedly exceptional, in
the interests of justice and in consideration
- Chin Hong Onn Ronny v Tanah Merah Country Club [2001] SGHC 101
– can just file OS under ord civil proced
– for such action can bring either in sub court or high court: Jurisdiction:
Subordinate Courts and High Court
– in above case, ronie chin a member of golfing club and while palying on
green ball ran out, captain of bluc issued suspension order on Ronnie chin
for 3 mths, he filed OS, one prelim pt raised by them was that need to go
for judicial review
– court held tt many precedents wher such parties have used normal OS
proced and court dimised the prelim objection of tanah merah country club
Examples:
- Harun Mundir v SAAA: Singapore Amateur Athletics Assoc.
- Re Singh Kalpanath: Disciplinary Committee.
- A Kanesananthan v Singapore Ceylon Tamils’ Association: unincorporated
association.
- Mohammed Aziz bin Ibrahim v PKMS: political party
- Shorvon v SMC: Singapore Medical Council
- Rehearing: some precedence accorded to tribunal of first instance
– Ling Uk Choon v Public Accountants Board [2004] 3 SLR 517:
Accountants Act – in isues of proff misconduct, tribunal has best
knowledge to deal with such issues
- Where statute provides for appeal in relation to professional body’s findings:
– Chia Yang Pong v Singapore Medical Council [2004] 3 SLR 151:
Singapore Medical Council
– this statute may itself prov for parties to apply to court when unhappy with
what SMC has decided
Ling Uk Choon and Another v Public Accountants Board [2004] 3 SLR 517
- Facts
- The appellants were certified public accountants. Ryoma Steel Enterprise (S) Pte Ltd
(“Ryoma”), their client, complained to the Public Accountants Board (“the Board”)
that the appellants’ had refused to return certain documents belonging
to Ryoma. An Inquiry Committee (“IC”) was constituted, which subsequently
concluded that the appellants were guilty of improper conduct under s 34(1)(c) of the
Accountants Act (Cap 2, 2001 Rev Ed) (“the Act”). The IC also concluded that the
appellants had refused to return the documents because they were under a mistaken
belief that they were under a duty to disclose irregularities in those documents. The
Board accepted the findings of the IC, censured both appellants and ordered each of
them to pay to the Board a sum of $6,281 being the costs and expenses incidental to
the hearing held by the IC. The appellants appealed against the decision of the Board
to the High Court pursuant to s 36 of the Act.
- Held, allowing the appeal:
- Section 36 of the Act provided the appellants with a right of appeal to the High Court.
The appeal against the decision of the Board to the High Court was by way of
rehearing pursuant to O 55 rr 1 and 2 of the Rules of Court (Cap 322, R 5, 2004 Rev
Ed). Therefore, the High Court was not confined to considering whether the rules of
natural justice had been observed and whether the decision of the Board had been
honestly reached: at [27], [30] and [32].
- The court’s role in the appeal
- The Board’s counsel Mr Devinder Rai, initially argued that the court’s role in the
appeal was limited to considering whether the rules of natural justice had been
observed and whether the decision of the Board had been honestly reached. A few
cases were cited for this proposition. However, as the appellants’ counsel, Mr Quek
Mong Hua, rightly pointed out, those cases involved applications seeking judicial
review where there was no statutory right of appeal. Here, s 36 of the Act provides the
appellants with a right to appeal to the High Court. Order 55 r 1 of the Rules of Court
(Cap 322, R 5, 2004 Rev Ed) provides that the Order shall apply to every appeal
which under any written law lies to the High Court from any court, tribunal or person.
Order 55 r 2 provides that such an appeal “shall be by way of rehearing”.
- Mr Quek relied on L P Thean J’s judgment in Chew Kia Ngee v Singapore Society of
Accountants [1988] SLR 999 where Thean J said, at 1003, [8]:
- Against that decision this appeal is now brought. Under s 34(2) of the Act, the
procedure governing such an appeal is the same as that for appeals to the High Court
from the decisions of District Courts in civil matters. Like an appeal from the District
Courts, this appeal is in the nature of a re-hearing and the same principles apply as are
applicable to an appeal to the High Court against the decision of the District Court.
- Using the analogy of appeals from the district courts, Mr Quek then further cited a
passage from Singapore Civil Procedure 2003 (Sweet & Maxwell Asia, 2003) in
respect of O 55D r 2 on the question of rehearing. The passage cited was inaccurately
set out in his further submissions and I set it out below:
- 55D/3/1 “By way of rehearing” — This provision does not mean that the High Court
hears the witnesses afresh. The High Court reviews the whole of the evidence (so far
as is relevant to the appeal) in the court below and the course of the trial. The general
practice is essentially a “rehearing on documents” in that the court sits to review the
official transcript of the evidence, the judge’s notes and the grounds of his decision.
The court rehears counsel on the issues of fact or law or both which form the
substance of the appeal. The court is not confined to the issues raised by the parties on
appeal and is not limited to making an order which should have been made by the
court below but may consider any relevant facts which have occurred since the trial
and may make such further or other orders as it deems fit according to the state of
things at the time of the hearing of the appeal. …
- It should be noted that the statute being considered in Chew Kia Ngee was the
Accountants Act (Cap 2, 1985 Rev Ed) and s 34(2) thereof states that the procedure
governing appeals to the High Court “shall be the same as for appeals to the High
Court from decisions of District Courts in civil matters”. On the other hand, s 36(1) of
the Act does not mention appeals from the district courts. Accordingly, one must be
careful when citing Thean J’s judgment on this point. Fortunately, the end result is the
same because, although s 36(1) of the Act does not mention appeals from the district
courts, O 55 rr 1 and 2 do provide that an appeal under any written law to the High
Court shall be by way of rehearing, as I have mentioned.
- However, one should also be careful about citing the above passage from the
Singapore Civil Procedure 2003 in respect of O 55D r 2 because O 55D pertains to
appeals from the subordinate courts and not appeals under any written law. There is a
separate order for the latter, ie, O 55. Order 55 r 5(3) states that, “Except with the
leave of the Court hearing any such appeal, no grounds other than those stated in the
notice of motion … may be relied upon by the appellant …”. So for the purpose of
O 55, it would be inaccurate to say that the court is not confined to the issues raised
by the parties on appeal.
- Nevertheless, I accept that because the appeal before me is by way of rehearing, I am
not confined to considering whether the rules of natural justice have been observed
and whether the decision of the Board had been honestly reached.
- Indeed, in further submissions, Mr Rai no longer submitted that the court’s role in a
statutory appeal was as limited as originally suggested. He pointed out that in Fox v
General Medical Council [1960] 1 WLR 1017, Lord Radcliffe said at 1022:
- Their Lordships think, therefore, that it would be an undue limitation of their duty and
powers in dealing with the statutory appeal to require no more for the upholding of a
determination than observance of what are known as the rules of natural justice.
- However, Mr Rai submitted that the decision of the tribunal below should be given
some measure of precedence. For this proposition, he cited the following from Lord
Radcliffe’s judgment in Fox at 1020:
- The appeal in this case lies as of right and by statute – see section 36 of the Medical
Act, 1956. The terms of the statute that confers the right do not limit or qualify the
appeal in any way, so that an appellant is entitled to claim that it is in a general sense
nothing less than a re-hearing of his case and a review of the decision. Nevertheless,
an appellate court works under certain limitations which are inherent in any appeal
that does not take the form, as this does not, of starting the case all over again and
hearing the witnesses afresh. In the High Court, where appeals to the Court of Appeal
are by function by way of re-hearing, there are well-recognised principles which give
some measure of precedence to the decisions of the tribunal that has seen and heard
the witnesses over what might otherwise be the view of the facts preferred by the
appellate court which has only the record of the evidence to study.
- I do not disagree that the decision below should be given some precedence provided
that the court’s wider role in an appeal is borne in mind.
- : - comment: it depends on what the relevant statute provides for. Judicial rview
is confined to reviewing whether the relevant auth have exceeded their auth
under the sttute
- Even if it is a public authority, may still be an issue of private and not public law,
such as contract.
- If the applicant asserts rights which lie in private law, rather than public law,
judicial review is not available.
- Payment is ex gratia
- Judicial review is not concerned with whether the applicant is dissatisfied with the
decision of the tribunal. It is concerned only with the improprieties of the
decision-making process.
- (see Fong Tin Choo above too]
- In the following case, the Court of Appeal considered the matter of whether or not the
decision-making process of a public authority was being challenged.
- Seah Hong Say v HDB
– Minister issued press releases promising some amts to be given when acqg
property
– When he got the payment, it was less than what press released promised
– Tried to sue
– But by defn, ex gratia so cannot sue for it
– The applicant claimed a cash grant in respect of building premises which
had been compulsorily acquired by the government. The claim, brought in
private law by writ of summons, was based on a ministerial statement to
the effect that a sole occupier was entitled to a certain amount.
– CA held that as there had been no beach of the appellant’s private law
rights, there was no basis for an action founded on the writ process.
The court said that there was no tort or breach of contract or breach of
statutory duty alleged against the HDB.
– The Court considered whether judicial review was available in the
circumstances of the case, and pointed out that this remedy might have
been available if the HDB’s decision-making process was being
impugned. As the appellant had not contended that this process had been
carried out improperly, there was no basis on which the court could grant
any relief.
- Restricted by statute
– See compulsory acquisition powers of HDB – HDB Act s 56(5):
- ‘,,, decision of Minister shall be final and not open to review or
challenge on any ground whatsoever’.
– Such restriction not absolute – see Stansfield Business School v Ministry
of Manpower [1999] 3 SLR 742.
- This case involves a decision by MOM in relation to the Stansfield
Business School. Court held: although the relevant legislation
stated that the decision of the Minister was final and conclusive
and could not be challenged, this did not preclude the Court
from ensuring that the principles of natural justices were
adhered to. The court held that there was a breach of natural
justice and quashed the decision of MOM. [There had been a
number of procedural deficiencies and a failure to observe the rules
of natural justice]
- Justice khoo – commission of ministry and manpower
- Under EA s14.5, decision of inister shallbe final and ocnsluvei and
x challenged in any court; commr made order against stansfield
and minister dismissed appeal
- Decisions made perusuant to EA
- Justie Khoo said however tt if process used is in breach of nat
justice, s14.5 is not effective
- Min tt govt dept can give someone is natural justice
• Told of allegations
• Fair oppty to contradict allegations
• Sigf pt of allegations must be put to him
- Khoo J held tt MOM had breached tt process – stansfield not told
propery of complaint and had not reasonable oppty to present their
caxse and no sigf pts were actually put to them
- Comment: Court had power to review, notwithstanding the
statutory restriction, the manner in which the decision had
been reached and not so much the correctness of the decision. [In
this case, s 14(5) of the Employment Act, which purported to
exclude judicial review, did not constrain the court]
- Not all errors committed in an administrative action are susceptible to judicial review
- Compare:
- Tan Eng Chye v Director of Prisons (No 2) [2004] 4 SLR 521 And
– On first time, appealed
– AG argd tt no leave to appeal
– But allowed leave to appeal but at actual hearing of the appeal, court held
tt this is not decision susceptible to appeal
– Tan eng chye an accused, and offence tt he had PG to was robbery –
mandatory caning of no less than 12 strokes. Crim court usu imposes
caning and then accused sent for a med exam, if doctor feels tt ccused is
not able to take caning for med reasons, will send back to court and based
on med report court will remnit sentence on caning
– In tan case, counsel sought case tt client unsuited for canig
– Court persuaded to call for med report prior to impsing madnaotry term
– In med report, doctor was doctor wee who merely stated tt tan is fit for
caning
– Caning then imposed
– JR – applied. Sought to argue tt this was a terse report, doctor had failed to
take into acct real possib tt canig potentially dang, this amted to
unreaonableness in wedb=nesbury sense
– Choo held tt decision maker must be empowered to make law by public
law tt wld lead to admin action
– In gthis case, wees decision not amenable to judicial review because
district judge duty bound to impose caning iresp of report
– Held tt doctor wee’s report did not matter
– Not JR case at all so unreaosanble to ask whether he had acted reasonably
– Accused x allowed to attack dr wee’s report
- Tan Eng Chye v Director of Prisons [2004] 2 SLR 640
- In exg discretion of court, there may be diff
Procedure: Order 53
- The application for a prerogative order consists of 2 stages. (1) the application for
leave to apply for the order; (2) the substantive application itself.
1st stage
- Leave necessary: O 53 r 1(1)
– How to apply:
– Ex parte OS with grounds
– Notice to AG [AG may object]
- Judge may direct application for leave operates as a stay [of the decision sought to be
challenged].
- Order 53, rule 1(2) - How to apply? Application for leave by ex parte originating
summons.
– The application must be supported by a statement setting out the name and
description of the applicant, the relief sought, and the grounds on which it
is sought, and by affidavit, to be filed when the application is made,
verifying the facts relied on.
- Order 53, rule 1(3) – The applicant must give notice of the application for leave to
the Attorney-General (AG may object). The applicant must serve the ex parte
originating summons, the statement and the affidavit no later than the preceding day
(of the application) on the Attorney-General’s Chambers.
- Order 53, rule 1(4) - The Judge, in granting leave, may “impose such terms as to
costs and as to security as he thinks fit”.
- Order 53, rule 1(5) - The Judge may direct the grant of leave operates as a stay of
proceedings in question until the determination of the application.
- Order 53, rule 1(6) - No leave of court to be granted to apply for an order of
certiorari to remove any judgment, order, conviction or other proceedings - unless
application for leave was made within 3 months after the date of the proceedings.
- Other remedies available? [Must you Exhaust all available remedies before applying
for Judicial Review]
Locus standi
- Easy test
- Sufficient interest: Chan Hiang Leng v MITA
- Held: appellants had sufficient interest as citizens of Singapore to challenge a ban
under the Undesirable Publications Act.
- Application for order:
- By motion in the OS in which leave was given: 8 clear days
- Notice served on all parties directly affected.
- Need affidavit with names and addresses of all persons who have been served. If not
served but should have been served, affid must state fact and reason.
- A major consideration for the court in determining whether leave should be granted
for the substantive application is whether the applicant has “sufficient interest” in the
matter. This is apart from the test to be applied by the court on application for leave
[i.e. that of an Arguable case –see above]
- This requirement of “sufficient interest” must be determined at the hearing of the
application for leave, rather than at the hearing of the substantive application. It is a
safeguard against the courts being flooded, and public bodies being harassed by
irresponsible applications.
- Chan Hiang Leng Colin v. MITA
– Held: Appellants had sufficient interest as citizens of Singapore to
challenge a ban under the Undesirable Publications Act as being
unconstitutional in lieu of Article 15 of the Republic of Singapore
Constitution providing Freedom of Religion.
– Despite the Jehovah Witnesses being deregistered as a society, the
applicants were not applying for JR as members of a banned group but
rather in their capacity as Citizens. If a constitutional guarantee is to
mean anything, a citizen must have the right to complain to the courts
if there has been a violation of it.
– Hence: the right of the applicants came from the right as citizens to
profess, practice and propagate his beliefs [irrespective of whether they
were members of the IBSA – International Bible Students Association].
– It would be strange that the only party with capacity to challenge was the
IBSA, which was neither a citizen or resident of Singapore.
- George John v Goh Eng Wah Bros [1988] 1 MLJ 319
– The applicant has made an ex parte application for leave to apply for an order
of certiorari to quash the decision of the second respondent, Board of Film
Censors, in approving the film publicity material. At the hearing, the learned
Senior Federal Counsel challenged the locus standi of the applicant in the
present proceeding
– Held:
– (1).in order to have the locus standi to invoke the jurisdiction of judicial
review, the applicant should claim, if not a legal or equitable right, a least a
sufficient interest in respect of matter to be litigated. The extent of sufficient
interest depends on diverse variable factors such as the content and intent of
the statute of which contravention is alleged, the nature of the breaches of
statutory power, the specific circumstances of the case, the nature and extent
of the applicant`s interest or grievance and the nature and extent of the
prejudice or injury suffered by him;
– (2).this court was satisfied that: (i) the applicant is a rate-payer, (ii) he had
contracted monogamous marriage, and (iii) he strongly adheres to the sanctity
of a monogamous marriage which has the backing of an Act of Parliament,
namely, the Law Reform (Marriage and Divorce) Act 1976. The applicant
therefore has a standing to challenge the decision of the second respondent
and the endorsement of the said decision by the third respondent at least at this
threshold stage of the application for leave;
– (3).the opposition to the locus standi of the learned Senior Federal Counsel
has no merit
Hearing
- No grounds other than that set out in Statement: r 3, though court may allow
amendment. Order 53 rule 3
- Any proper person not served but desires to oppose shall be heard: order 53 r 4.
- Cross-examination?
- Ridge v Baldwin: if justice of case requires
- Re Singh Kalpanath: allowed.
- Facts: he claimed tt chairman guilty of prejudice against ihm
- Held: grave injustice may have been caused otherwise. There were 2 conflicting
accounts central to each party’s case. Whether bias can be established or not
depends on their testimony as to bias. Applicant’s career and integrity of the
disciplinary tribunal were at stake. Truth of witness’ allegations of bias was
central to D’s case.
- Is Cross-examination allowed?
– Cross-examination is generally not allowed in proceedings for judicial
review. [Colin Chan v PP ] save for very special circumstances.
– [Note: there is no express provision for cross-examination in judicial review
proceedings under Order 53, unlike in England] This restriction has the force
of practice rather than law. Its primary objective is to protect the integrity of
the tribunal or authority concerned.
– “Special Circumstances”???
- Colin Chan v PP [1994] 3 SLR 662
– Adopted the Malaysian Position dispute of facts or other exceptional
circumstances.
– BUT: the court may allow cross-examination if “justice of case requires”
[None in that case]
- The following case is a leading authority in Singapore on the principles governing
the Court’s discretion to allow cross-examination in judicial review proceedings.
The case stands for the proposition that the court will allow cross-examination in
judicial review proceedings whenever it is in the interest of justice do to so.
– Re Singh Kalpanath [1992] 2 SLR 639 [Leading case on ‘Bias’ too]
– This case concerned an application by a lawyer for an order of certrorari to
quash the findings of a disciplinary committee which had found him guilty of
misconduct. The basis of the application was that the chairman of the
disciplinary committee was biased. Chan Sek Keong J held that this was an
appropriate case for the chairman and the applicant’s counsel to be cross-
examined.
– Held that grave injustice may be caused if the applicant was not allowed to
test the truth of the chairman’s account of the case. 2 conflicting accounts
central to each party’s case. The applicant’s career and integrity of the
disciplinary tribunal were at stake. The truth of witnesses’ allegations of bias
was central to defendant’s case.
– Specifically the judge said:
– The nature of the disputes between CS and SS on the one hand, and between
the applicant and CS on the other, made this an appropriate case that CS
submit to cross-examination. The difference between the ‘exceptional case’
test and the ‘justice of the case’ test is not one of substance. Grave injustice
might have been caused the applicant if he were not allowed to test the truth
of CS’s account of the conversations. The truth of SS’s account was central to
the applicant’s primary case just as much as the truth of CS’s account was
central to his defence. The objection, if upheld, would have resulted in a
denial to the applicant of the natural justice which he alleged had already
been denied him by CS. Not only was the applicant’s career at stake, but more
importantly, confidence in the integrity of the administration of justice by a
disciplinary tribunal would have been diminished if CS had been immunized
from cross-examination.
– Comment: Dispute as to facts and their importance/relevance to the case was
the key here. In Colin Chan v PP, there no such dispute and there was no
relevance!
- Chiam See Tong v SDP [1994] 1 SLR 293
o Chiam See Tong brought proceedings to restrain the SDP from expelling or
taking steps to expel him from the party. One of the issues that arose Was
there a need to exhaust the internal remedy of a Party Congress before
applying to Court, given that such a congress was held once every 2 years by
the SDP’s constitution?
o Held:
o (1) Case involved the question of whether rules of natural justice were
breached [no notice, no time to frame defence, no right to be heard, bias,
prejudice] which were eminently a matter for the courts. Party conference (i.e.
the congress) was inappropriate to decide questions of this sort as the issue of
rights and wrongs over the expulsion of a party member was likely to be
decided based on different considerations than those taken into consideration
by a court of law.
o (2) The next party congress was more than 1 year away since one had already
being held in Jan of this year. Applicant argued that his seat in parliament was
in jeopardy. Needed to have his party status resolved expeditiously. Court
agreed. JR.
- Mohammad Aziz Bin Ibrahim v PKMS [see above for facts]
o Held that the Disciplinary Committee did not tell him of charges so it was
impossible to present his case and relief under the internal constitution was
meaningless and not exhaustive.
- Mathi Alegen s/o Gothendaraman v The Tamils Representative Council of Singapore
[2004 case]
o Held that even if there is internal remedy, it does not oust JR of court. But
court discourages the use of JR as a first resort. It is a supervisory power.
Scope of Review
- Chng Suan Tze [1989] 1 MLJ 69
- Scope of review depends whether case falls within the ‘precedent fact’ category; or
whether discretion has been conferred
Discretion conferred:
- In sg, usu discretion is conferred
- Eg – ‘the Minister, if he is of the opinion …, may…’
- Scope of review limited to illegality, irrationality and procedural impropriety.
- Chng Suan Tze -
– • Illegality
– • Irrationality
– • Procedural impropriety
– : - reasoanbleness
– Scope of review depends whether case falls within the “precedent fact”
category; or whether discretion has been conferred. Chng Suan Tze
[1989] 1 MLJ 69
- Chee Siok Chin v MHA
– • Proportionality not ground of review
– • Reasonableness test
- Ng Hock Guan v Attorney –General [2004] 1 SLR 415
– Concern is not with evaluation of relative weight or probative value of
evidence, but with “legality, fairness or propriety of the decision making
process”
– Police officer interviewing some Filipino accused persons
– They made allegations that police officer had bashed them up, other
witneses not allowed in room
– Discip body said tt all colleagues and might collude
– Court held tt insuff regard to fairness; their evid shld have been tested
against evid of accused
– Also med evid in tt case which was not tested
– Doctors not called during hearing, contrary to fairness of proceedings
– Police officer sentenced by internal disciplinary Committee. Reviewing
officer conducted a trial-like procedure. Doctors not called or cross-X.
said that witnesses were biased and would corroborate.
– Lai Kew Chai J overturned decision on the grounds that (i) expert neutral
not relied on, (ii) other witnesses ignored and therefore IO was not
reasonable to conclude and decision was not rational.
– Comment: affirms Colin Chan line of cases [Wednesbury
Unreasonableness]
Examples…
- Tribunal has miscontrued scope of its statutory power -
– Lim Teng Ee Joyce v SMC [2005] 3 SLR 709
- Joyce lim faced three charges, idnicatewd fr beg trt wld PG to two
and claiming trial for 3rd
- Went thorugh discp proceedings, acquitted her on third charge but
made her pay for full costs of hearing before DC
- Statute p0nly allows them to make cost order in context of finding,
but they acquitted her of third charge yet imposed on her full cost
sof hearing 3 chargs
- Held tt imporer and set aside order, powr to orer cost is limited to
cases whjere there is fidin of guilt
- Court substituted order of costs for 1/3 order of costs since 3
charges
– Shorvon Simon v SMC [2006] 1 SLR 182
- Simon shorvon censured and made seceral findings of guilt
- Prior to discip committeeproceedings, had complaints proced
- SMc tried to get costs for getting up and complaitns proced
- CA held tt this was improper – under statute, can only get csots
relevant to discip proceedings
- For earlier stage of complaints proced, not sth tt cld be allowed and
outside scope of power delegated to them under statute
- So costs made smaller
- Allegation of bias -
– Tang Kin Hwa v Traditional Chinese Medicine Practitioners Board [2005]
4 SLR 604
- ‘reasonable suspicion’ of bias revealed by facts
- or ‘real likelihood’ of bias
- court went on discourse on2 tests – but on pt of fact, both grds are
the same thing – premised on obj basis\
- Both tests premised on ‘objective basis’?
- It was said tt allegations are unfounded
Reliefs Obtainable
- In Singapore, may only obtain the prerogative reliefs under Order 53:
- Chan Hiang Leng Colin v MITA
– No declaration, injunction, damages.
– O get this, use Ronnie Chin procedure. Normal proceudre
- Position in England is different because of reform in 1977 / 1981. ie declaration, injn
and damages can be obtained
– Cannot obtain declaration, injunction or damages. Such relief may be
obtained in England. The position in Singapore differs from that in
England because of reform in 1977/1981: Chan Hiang Leng Colin v.
MITA
- Chan Hiang Leng Colin v MITA
– Held: did not follow that because the High Court had the power to grant a
declaration by virtue of s 18(2) and the First Schedule to the SCJA that it
had the power to grant one in an application under the Rules of Court,
O53.
– O53 based on old English O53, and there was no power under that
provision to grant a declaration.
- Note: Reliefs Are Discretionary. The court will consider:
- Conduct of applicant?
- Any non-disclosure?
- Delay? If delay is long, court will decide you are not interested.
- Alternative remedies not exhausted?
- Prejudice suffered?
- Third party interests?
Stage 2
- Second Stage: Application for the prerogative order: Order 53, rule 2
- “Entered for Hearing”???
- Jasabena Sdn Bhd v Beh Heng Poo [1985] 1 MLJ 394
– In this case the sole question for decision arising out of a preliminary
objection taken by the respondents concerned the meaning and ambit of the
phrase "entered for hearing" in O 53 r 2 of RHC 1980. After leave has been
granted, the motion under O 53 r 2(2), must be entered for hearing within 14
days. In this case, the application for certiorari was fixed for hearing 52 days
after leave was obtained
– Held: for purposes of O 53 r 2(2),[Our O 53 r(2)] "filing" corresponds to
"entry" so that there is sufficient compliance once the applicant files his
application within 14 days after leave has been granted. Alternatively, if there
has been a breach of O 53 r 2(2) by the Applicant, the Court would regard its
requirements as purely directory and therefore capable of being condoned
under the provisions of O 2 r 1(1).
– The notice must be served on “all parties directly affected”. / Affidavit of
service or non-service
Appeal
- Order 53, rule 7 – Where leave to apply for an order of mandamus, prohibition or
certiorari has been refused by a Judge, an application for such leave may be made to
the Court of Appeal under Order 57, rule 16.