Anwar Siraj and Another v Ting Kang Chung John

Chao Hick Tin JA (delivering the grounds of decision of the court):

[1] This was an application made by Ting Kang Chung John (“the applicant”) to strike out the appeal, Civil Appeal No 18 of 2009 (“the appeal” or “CA 18/2009”), filed by Anwar Siraj and Norma Khoo (“the appellants”) against the decision of the High Court in Anwar Siraj and another v Ting Kang Chung John and another [2009] SGHC 71. We granted the application to strike out the appeal and now give our reasons.

[2] A brief account of the main events leading to the application to strike out the appeal are these. Pursuant to an agreement signed on 30 December 1999 (“the Agreement”) the appellants had engaged Teo Hee Lai Building Construction Pte Ltd (“Contractor”) to demolish and reconstruct their house located at No 2 Siglap Valley. The Agreement provided that in the event of a dispute arising thereunder, the same would be referred to arbitration. It also provided that in the event of the parties being unable to agree on the appointment of an arbitrator, the President of the Singapore Institute of Architects (“SIA”) was empowered to appoint an arbitrator for them.

[3] In July 2001, a dispute arose between the appellants and their Contractor, and they were unable to agree on an arbitrator. Accordingly, on 12 December 2001, the President of the SIA appointed the applicant, John Ting, as the sole arbitrator. As will be seen, from then on, for one reason or another, the parties, as well as the arbitrator, were mired in one difficulty after another.

[4] The appellants were unhappy with the applicant as the appellants felt that the latter did not proceed with the arbitration with due despatch. The appellants complained about the applicant’s competence as an arbitrator and even alleged bias on his part and proceeded to institute Originating Motion No 26 of 2002 to have him removed as arbitrator. The High Court ruled that there were insufficient grounds to remove the applicant as arbitrator in Anwar Siraj and another v Ting Kang Chung and another [2003] 2 SLR 287 as the allegations of misconduct and bias were not shown on the facts.

[5] The appellants alleged that on 13 May 2003, the applicant required the parties pay the sum of $50,000 by 27 May 2003 as arbitration fees before he would commence the arbitration hearing. The Contractor claimed to have made payment of its share of the fees, ie, a sum of $25, 000, on 10 September 2003.

[6] Thereafter, arbitration hearing began. However, the appellants complained that on 24 November 2003 the applicant conducted the arbitration hearing ex parte, with only the presence of the Contractor but not the appellants. They further claimed that the applicant refused to furnish them with copies of the notes of hearing when so requested. However, on 1 December 2003, the applicant invited the Contractor and the appellants to present submissions. The appellants replied that without the benefit of the notes of evidence, they were unable to do so.

[7] On 15 April 2005, after a lapse of more than a year, the applicant wrote the arbitration award, but refused to release it until the appellants or the Contractor paid the sum of $199,178.40, which represented the balance of his total fees (at $242,200).

[8] On 2 June 2006, the appellants filed Suit No 348 of 2006/M (“Suit 348/2006”) against the Contractor claiming for overpayment.

[9] On 21 September 2006, the applicant filed Originating Summons No 1807 of 2006/S (“OS 1807/2006”) against the Contractor (as the first defendant) and the appellants (as second and third defendants) seeking an extension of time from the court to issue his award. He also prayed for an order that the Contractor and the appellants do jointly and severally pay the sum of $199,178.40 as arbitrator’s fees.

[10] On 24 September 2008, by way of Originating Summons No 1231 of 2008/W (“OS 1231/2008”), the appellants sought to set aside the arbitration award rendered by the applicant, and to obtain an order declaring that the arbitration agreement had ceased to have any effect.

[11] On 31 October 2008, by way of an application (Summons No 4814/2008/F) made in OS 1231/2008, the appellants asked for, inter alia, the following orders:

a. pursuant to O 4 r 1 of the Rules of Court (Cap No 322, R 5, 2006 Rev Ed) (“ROC”), that the three proceedings, namely, OS1231/2008, OS1807/2006 and Suit 348/2006 be consolidated;

b. any other directions which the court may deem fit and just to make in respect of the aforementioned consolidation;

c. pursuant to O 28 r 8 and O 5 rr 2 and 4 of the ROC, that OS1231/2008 be converted into a writ of summons;

d. any other directions which the court may deem fit and just in respect of the aforementioned conversion;

e. that the police and/or Commercial Affairs Department (“CAD”) and/or other investigating authority be directed to:

(i) speedily complete their investigations into the magistrate’s complaints (namely, CM-002943-04, CM002436-04 and CM-002282-05) and to furnish their comprehensive report to the court;

(ii) speedily investigate all allegations of fraud, cheating and falsification of bills made against the applicant, the Contractors and their agents; and all allegations of criminal negligence due to loss of documents or any other evidence resulting from the actions/omissions of the applicant.

[12] The third prayer listed in [11] above was considered by the High Court in Anwar Siraj and another v Ting Kang Chung John and another [2009] SGHC 129 and was dismissed. Being dissatisfied, the appellants filed an appeal (Civil Appeal No 49 of 2009) against that decision. The appeal in Civil Appeal No 49 of 2009 was dismissed by this court which found that as there was really no substantial dispute of fact in OS 1231/2008 necessitating the conversion of the originating summons into a writ; witnesses could be cross-examined on specific aspects of their affidavits.

[14] Lee J declined to make the orders asked for in the fifth prayer essentially on two grounds. First, a judge had no power to order the police to conduct an investigation or to speed up that process. Second, even if the court had such a power, it would not exercise that power because there was no connection between the events which formed the subject matters in the magistrate’s complaints and the dispute in OS1231/2008, or in the other related proceedings involving the arbitration dispute. This was how Lee J explained the position (at [2] of his grounds of decision):

[15] Lee J made his ruling on 19 January 2009. Thereafter, on 5 February 2009, this court, in Civil Appeal No 172 of 2008 (which arose from an interlocutory application made in OS 1807/2006), made the direction that OS1807/2006 and OS1231/2008 were to be consolidated and heard together by the same judge. The court also directed that all parties were enjoined from making any further applications or filing of further affidavits in respect of the aforesaid consolidated originating summonses.

[18] In the meantime, by a letter dated 23 February 2009, the appellants informed the applicant that on 19 February 2009 a notice of appeal had been filed against Lee J’s decision, and should the applicant choose to proceed with the taxation of the bill, the appellants would proceed to serve the notice of appeal in CA 18/2009 on the applicant.

[19] The period within which a notice of appeal must be served on the respondent is prescribed in O 57 r 4 of the ROC which reads:

[20] Order 3 r 2(2) states that “[w]here the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date”. As Lee J’s order was made on 19 January 2009, the notice should have been filed and served by the latest on the 19 February 2009. In this instance, the notice of appeal was served more than five months later on 24 July 2009.

[21] The applicant’s application was for the appeal to be struck out. While there are no provisions in the ROC that directly relate to the striking out of notices of appeal, in Riduan bin Yusof v Khng Thian Huat and another [2005] 2 SLR 188 at [18], this court recognised the court’s inherent jurisdiction to strike out a notice of appeal that was filed out of time:

[22] Now, the instant case was not one where the notice of appeal was filed out of time. Therefore, the question that needs to be addressed is whether a notice of appeal which was filed within time but served out of time could similarly be struck out. In this regard, one must bear in mind that an appeal only comes into being when both the filing of the notice of appeal as well as its service are made within the prescribed time. One of the earliest cases which established the principle that service of the notice of appeal on the respondent was critical was the English Court of Appeal case of Ex parte Saffery. In re Lambert (1877) 5 Ch D 365 where, at 367, Jessel MR said that the “meaning of appealing is giving notice to your adversary of your intention to appeal, by serving upon him a notice of appeal”. This approach was endorsed by our High Court in the case of Tan Thye Heng v Pan Mercantile (S) Pte Ltd and another [1989] SLR 973 (“Tan Thye Heng”) which held that before there could be an appeal before an appellate court, the notice of appeal must be both filed and served within the prescribed time. The ruling in Tan Thye Heng was accepted in the later case of Nomura Regionalisation Venture Fund Ltd v Ethical Investments Ltd [2000] 2 SLR 686 at [16] and approved by this court in Lee Hsien Loong v Singapore Democratic Party and others and another suit [2008] 1SLR 757 (“Lee Hsien Loong”) at [30]. Thus, we would reiterate that the filing and service of the notice of appeal are both critical and any non-compliance with either requirement would be fatal to an appeal coming into being. This is exactly what is provided for in O 57 r 4.

[23] In AD v AE [2004] 2 SLR 505 at [9], this court expressly held that in determining whether to grant an extension of time to enable the service of a notice of appeal out of time, there ought, in principle, be no difference between the two circumstances of late filing of notice of appeal and of late service of notice of appeal:

[24] As the effect of either event, whether it is a case of late filing of a notice of appeal or late service of a notice of appeal, is that there is no appeal in existence, this court should have the same power to strike out a notice of appeal which was served out of time. In other words, if the court has the power to strike out a notice of appeal in the former event, it should also be able to do so in the latter event. There is no reason of principle to distinguish between the two events.

[25] In this connection, we note that in Lai Swee Lin Linda v Attorney-General [2006] 2 SLR 565 (“Linda Lai”), the notice of appeal was set aside for, inter alia, being filed and served out of time. We did not think that this case intended to draw a distinction between the “striking out” and “setting aside” of a notice of appeal. No issue was raised there as to whether there was any difference between these two orders. The prayer there asked the court to “set aside” the notice of appeal. The practical effect of these two orders, in the context of a case like the present, is the same, ie, the appeal is no longer in existence.

[26] We turn next to consider the question of whether there is a discretion in the court to extend time to enable a notice of appeal, which was not served within time, to be served out of time. For this purpose, we need to refer to O 2 r 1(1) and O 3 r 4 of the ROC which read:

In the light of these two rules, it is abundantly clear that the non-service of the notice of appeal on the applicant within time is an irregularity which could be cured by the court in the exercise of its discretion to extend time pursuant to O 3 r 4.

[27] At this juncture, we should add a qualification to what appears to be the plain sense of O 3 r 4(2). Here, it is necessary to refer to O 57 r 17 of the ROC which states:

Thus, the High Court has the power to extend time to file or serve a notice of appeal out of time only if the application is made to the High Court before the expiration of the prescribed period for filing or service. If the application to extend time is made after the deadline for the aforesaid, the application has to be made to the Court of Appeal – see Chen Chien Wen Edwin v Pearson [1991] SLR 578.

[28] However, in the present case, although no formal application was made by the appellants to court asking for an extension of time to serve the notice of appeal out of time, we were nonetheless prepared to consider whether this was a case in which the court should exercise indulgence in favour of the appellants.

[30] While these are the factors which are relevant to the court in determining how its discretion should be exercised, there are two other considerations which should nevertheless not be disregarded. In Linda Lai at [45], relying on the Privy Council decision in Thamboo Ratnam v Thamboo Cumarasamy and Cumarasamy Ariamany d/o Kumarasa [1965] 1 WLR 8 at 12, this court held that when applying these factors, the court should nevertheless bear in mind the fact that the overriding consideration was that the ROC must prima facie be obeyed, with reasonable diligence being exercised. Second, in The Melati [2004] 4 SLR 7 at [37], this court underscored the point that the need for finality was a “paramount consideration”.

[31] In Linda Lai, there was a lapse of three months and 19 days. The court there noted that it was a delay of more than four times the period prescribed under Order 57 r 4. By way of comparison, in AD v AE the delay was 49 days and the court there thought that such a period was “[b]y any standard[s], ... a very substantial delay”. We should add that in AD v AE, the prescribed period for service of the notice was seven days of it being issued, pursuant to O 55C r 1(4), it being a case involving an appeal from the District Court.

[32] Admittedly, the delay in the present case was more than five times the period prescribed by O 57 r 4. However, the length of delay must be seen in its context as the facts of each case are different: see Lee Hsien Loong at [52].

[34] The appellants sought to explain the delay of the service as being due to their uncertainty over whether they had the right to appeal. However, we could not see how this explanation could hold. If the appellants really had any doubt or uncertainty over their right to appeal we would have thought that they would hold back the filing of the notice of appeal and seek legal advice. More significantly, this explanation of theirs could hardly jell with their action in filing the notice, and not serving it and using the fact of the filing of the notice of appeal as a leverage to extract some concession from the applicant. In our opinion, their letters of 16 and 23 February 2009 spoke more loudly than the purported explanation. No reason was given as to why they did not seek legal advice if they had real doubts as to their right to appeal. On the contrary, their actions were quite deliberate, taken in the hope that such actions would bring about the desired result. We would also add that while recognising the appellants are lay persons, they are no strangers to court proceedings, having been involved in numerous interlocutory applications and several appeals. They have become seasoned lay litigators.

[36] In our judgment, if oversight or negligence per se was insufficient to justify an extension of time, a fortiori, a conscious assumption of risk on the appellants’ part, coupled with a move (ie, withholding service) which was deliberately aimed at a specific collateral purpose (see [16] and [18] above). It was not a case where the appellants could legitimately claim ignorance of the rules or had bone fide misunderstood the rules.

[37] Turning now to the third factor, the threshold set for this factor is a rather low one – is the appeal hopeless? : see Lee Hsien Loong at [19] and Aberdeen Asset Management Asia Ltd v Fraser & Neave Ltd and another [2001] 4 SLR 441 (“Aberdeen Asset”). In Aberdeen Asset at [43], this court stated:

[38] It would be recalled (see[14] and [17] above) that the subject matter of CA 18 /2009, was in relation to the High Court’s refusal to order the police, or the CAD, to speedily investigate into the magistrate’s complaints and allegations of fraud made against the applicant. The question here was whether the court could, in a civil proceedings, to which neither of these law enforcement agencies was a party, compel them to investigate more speedily into the magistrate’s complaints lodged by the appellants.

[39] We would first observe that the appellants had failed to submit any authorities which showed that the court had the power, in a civil suit, to make a mandatory order against the said law enforcement agencies in those terms when the agencies were not a party to the proceedings. The appellants relied on the case of Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 (“Fagan”), a case which was quite irrelevant. We were nonplussed as to why Fagan was cited because that case concerned a question of law as to whether the offence of assault under s 51 of the Police Act 1964 (c 48) (UK) necessarily required mens rea and actus reus to be present at the same time. It had no bearing on the question of whether the court had the power to make a mandatory order against the police, who were not a party to the proceedings.

[40] The proper process for the Appellants to invoke for the said object would have been to commence proceedings for an order of mandamus : see, eg, R v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1982] QB 458 (“R v Chief Constable of Devon and Cornwall”). Without deciding here on the outcome of any application for such an order, it is interesting to note that even in cases where an application for a mandamus order has been made, the English Courts have been slow in granting such an order against the police. As succinctly summarised in Clive Lewis QC, Judicial Remedies in Public Law (Sweet & Maxwell, 4th Ed, 2009) at para 4-084:

[41] In R v Chief Constable of Devon and Cornwall, a statutory board applied to the Divisional Court for a mandamus order directing the police to remove protestors and obstructors at a worksite where a nuclear power station was planned to be built upon. The board appealed against the Divisional Court’s refusal to grant the order. The English Court of Appeal found that although the obstructors’ actions had resulted in a breach of the peace, the court would not grant orders to the police as to how the police should carry out their duties (at 472):

Equally pertinent are the views of Templeman LJ at 481:

[42] In the light of these authorities, it was clear to us that the appeal against the decision of Lee J in refusing to make an order directing the police or the CAD to investigate more speedily into the magistrate’s complaints lodged by the appellants was hopeless and bound to fail. There would be no point in allowing the appeal to continue. In coming to this view, we were not concerned so much by the procedural defect as such, ie, the law enforcement agencies were not before the court. We would add that even if the appellant had commenced proceedings by the correct process, namely for an order of mandamus, we would still refuse the order because it was not for this court to instruct the law enforcement agencies as to how they should go about doing their jobs. Moreover, for the reasons set out in the next two paragraphs, which was also the alternative ground given by Lee J in refusing to grant the order asked for by the appellants (see [14] above), the appeal was wholly without merit.

[43] A perusal of the three magistrate’s complaints clearly show that they have nothing to do with OS 1231/2008 and OS 1807/2006 (“the consolidated proceedings”). In the first complaint, the appellants alleged that several parties dumped articles/objects outside the gate of the appellants’ house. They alleged that these parties were engaged and abetted by the applicant to carry out the offensive acts. In the second complaint, it was alleged that the applicant had on earlier occasions threatened to dump articles/objects outside the office of a solicitor. It was further alleged that the applicant had ceased threatening the solicitor but instead directed his threats to the appellants and their family. In the third complaint, the same parties were alleged to have harassed, disturbed the peace, caused anxiety, and intruded upon the privacy of the appellants and their family all brought about or abetted by the applicant.

[44] In contrast, the substantive issues that the court would be concerned with in the consolidated proceedings are: whether the applicant is entitled to the fees demanded by the applicant as arbitrator, and if so, what is the proper quantum; whether the arbitration award given by the applicant ought to be set aside; and whether the arbitration agreement shall cease to have effect. Clearly, the three magistrate’s complaints, and any investigations revolving around them, are totally unrelated to the issues in the consolidated proceedings.