High Court · Decided 15 March 2013

Manjit Singh s/o Kirpal Singh and another v Attorney-General

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[2013] SGHC 62Case no. Originating Summons No 107 of 2013

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Vinodh Coomaraswamy JC:
[1] Mr Manjit Singh s/o Kirpal Singh and Mr Sree Govind Menon are advocates and solicitors of the Supreme Court of Singapore. Mr Singh was admitted to practise in 1977. Mr Menon was admitted to practise in 1998.
[2] Mr Singh and Mr Menon sought leave under O 53 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) to apply for judicial review arising from their request to the Chief Justice to exercise his power under s 90(3)(a) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the Act”) to revoke the appointment of a Disciplinary Tribunal (“DT”) inquiring into charges of misconduct against them. They represent themselves in these proceedings and before the DT.
Introduction
Ms Rankine complains to the Law Society
[4] In December 2010, one Ms Bernadette Adeline Rankine complained of professional misconduct by Mr Singh and Mr Menon. She lodged her complaint formally with the Law Society of Singapore. The Law Society duly initiated the statutory procedure under the Act (see [99] below) to inquire into Ms Rankine’s complaint. In due course, the Law Society applied to the Chief Justice under s 89(1) of the Act to appoint a DT to hear and investigate the matter. In response, on 13 February 2012, the Chief Justice exercised his power under s 90(1) of the Act to appoint a DT.
[5] The precise grounds of Ms Rankine’s complaint are not material to the application before me. What is material is that on 23 November 2012, Ms Rankine unreservedly withdrew her complaint against Mr Singh and Mr Menon. She did so in writing, by a letter bearing that date addressed to the Law Society. She signed her letter before a commissioner for oaths. She copied her letter to the DT Secretariat, to the Law Society’s counsel and to the applicants. Ms Rankine concluded her letter by inviting the Law Society to discontinue the disciplinary proceedings against Mr Singh and Mr Menon.
[6] The Law Society did not respond to Ms Rankine’s invitation. Instead, at a directions hearing on 3 January 2013, the Law Society’s counsel indicated to the DT that the Law Society intended to continue the disciplinary proceedings. Mr Singh and Mr Menon did not, at that time, object to this. But on 7 January 2013, they initiated correspondence with the Law Society. The purpose of this correspondence was to inquire how and why the Law Society had come to its decision to continue the disciplinary proceedings against them despite Ms Rankine’s unreserved withdrawal of her complaint. On 11 January 2013, they initiated a parallel correspondence with the Chief Justice. The purpose of this correspondence was to urge the Chief Justice to exercise his power under s 90(3)(a) of the Act to revoke the appointment of the DT on the ground that Ms Rankine had unreservedly withdrawn her complaint. I will go through this correspondence in detail in [58] - [75] below. The Chief Justice did not revoke the DT’s appointment. That is how this application arose.
Mr Singh and Mr Menon apply for judicial review
[7] Before me, Mr Singh and Mr Menon challenge the Chief Justice’s response to their request on two grounds:
(a) The Chief Justice’s failure to revoke the DT’s appointment was unreasonable in the Wednesbury sense (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (“Wednesbury”)).
(b) Alternatively, the Chief Justice was precluded by apparent bias from acting on Mr Singh’s and Mr Menon’s request to him to exercise his power under s 90(3)(a) of the Act.
[8] The applicants brought their application by ex parte originating summons, as is required: see O 53 r 1(2). The applicants duly served their application and supporting material on the Attorney-General, as is also required: see O 53 r 1(3). The Attorney-General attended the hearing and opposed the application.
[9] Before I could deal with the merits of the leave application, however, I had to deal with two preliminary applications. The first was the Law Society’s application to hold a watching brief. The second was the applicants’ application for me to recuse myself on grounds of apparent bias.
Two preliminary applications
Law Society seeks to hold a watching brief
[10] At the very outset of the hearing, counsel for the Law Society asked for my permission to hold a watching brief for his client. He accepted that the Law Society is not a party to the application and is accordingly not entitled to be served with the papers, to attend the hearing or to address the Court. He confirmed that he did not seek a right to be heard but only to attend in chambers on the hearing of the application. He invited me to exercise my inherent power to allow the Law Society, as a non-party with an interest in the matter, to do so. He submitted that the Law Society’s interest arose for three reasons: (1) because the Law Society initiates all disciplinary proceedings against advocates and solicitors; (2) because the disciplinary proceedings underlying this application were now ongoing but had been stayed at the applicants’ request; and (3) because the ultimate objective of the applicants was to secure an order revoking this DT’s appointment.
[11] The Attorney-General did not object to the Law Society’s request.
[12] The applicants objected to the Law Society’s request. Mr Singh drew my attention to O 53 r 4 of the Rules of Court. That rule gives a right to be heard to a person who wishes to oppose an application under O 53 r 2(1) and who appears to be a proper person to be heard, even though the documents have not been served on him. The applicants submitted that because there was no equivalent rule giving a non-party a right to be heard on an application under O 53 r 1, I had no discretion to permit the Law Society to attend the hearing.
[13] I pointed out to Mr Singh that the Law Society was seeking only to attend and not to be heard. Mr Singh submitted that that made no difference. First, he submitted, I had no discretion to allow the Law Society to hold a watching brief in the absence of an express provision which granted me the discretion to do so on an application under O 53 r 1. Second, to recognise a discretion to allow even an interested non-party merely to attend an application under O 53 r 1 would result in the Courts being flooded with interested non-parties inviting the court to exercise that discretion. Third, the Law Society had no interest in the initial, leave stage of judicial review proceedings, save possibly in respect of an interim stay of the proceedings. So counsel for the Law Society ought to be permitted to attend only that part of the hearing which related directly to his client’s interest. Finally, even if I had a power to allow Law Society’s counsel to hold a watching brief, I should not exercise it because of the prejudice the applicants would suffer. This prejudice, Mr Singh submitted, was that counsel for the Law Society might be unfairly coloured in his prosecution of the disciplinary proceedings by becoming aware of material which was relevant to the application for leave to bring judicial review proceedings, but which was quite irrelevant to the disciplinary proceedings.
[14] In Lee Hsien Loong v Review Publishing Co Ltd and another and another suit [2007] 2 SLR(R) 453 (“Lee Hsien Loong”), Sundaresh Menon JC (as the Chief Justice then was) considered whether the Court had a general discretion to permit a non-party to attend a hearing in chambers. The non-party in that case was – like the Law Society – seeking only to be present and not to be heard. Menon JC started from the premise that hearings in chambers are private and so non-parties have no entitlement to be present. But he held that he had a very wide discretion to allow a non-party who could establish a sufficient interest in the proceedings to be present (at [8]). In exercising the discretion, the Court will have regard to all the circumstances including the non-party’s interest in the litigation, the litigants’ interests, the non-party’s reasons for seeking permission and the court's interest in preserving and upholding its authority and dignity (at [13]). On the facts of that case, Menon JC held that the non-party was within the class of persons in whose favour the discretion might be exercised but declined to exercise the discretion in favour of the non-party. Menon JC’s analysis is undoubtedly correct and I adopt it.
[15] The question, in the specific context of O 53 r 1, is whether Mr Singh’s submission is correct that the presence of O 53 r 4 of the Rules of Court in relation to an application under O 53 r 2 excludes by implication this general discretion on an application under O 53 r 1. I cannot accept that submission.
[16] I express no view on whether the effect of O 53 r 4 is by implication to preclude the court from granting a non-party permission to be heard on a leave application under O 53 r 1. But it seems to me that the purpose of O 53 r 4 is to give a right to a non-party on an application under O 53 r 2 rather than to take away a right from a non-party on other applications. O 53 r 4 gives a non-party who fulfils its criteria a right that the non-party would not normally have in ordinary civil proceedings. Given that, I cannot see how O 53 r 4 can be read to eliminate by implication the court’s undoubted general discretion to permit a non-party to attend any hearing in chambers. There is a difference of substance between a non-party being heard on an application and a non-party attending an application. A non-party who is heard on an application is given an opportunity to influence the court’s decision. It is easy to see why a non-party, being a party by definition uninvolved in the matter, ought not to be able to exert that influence in the absence of an express rule. A non-party who attends a hearing, on the other hand, cannot influence the court’s decision at all. There is no reason in principle why O 53 r 4 should have the implied effect that Mr Singh attributed to it.
[17] I exercised my discretion in the Law Society’s favour. My general discretion to allow counsel for the Law Society to hold a watching brief in chambers on the hearing of the entirety of the leave application was unaffected by any specific considerations in the context of O 53 r 1. I considered Mr Singh’s floodgates argument to be fanciful. I was satisfied that the Law Society had an interest in the application by reason of its undeniable statutory role in the ongoing disciplinary proceedings. I was not persuaded by the applicants’ argument that the Law Society’s interest was limited to the applicants’ prayer to stay the disciplinary proceedings pending the substantive judicial review application. The Law Society is by statute entrusted with the heavy duty of having the carriage of all aspects of the disciplinary procedure under the Act. All of the relief which the applicants sought leave to apply for on a principal application under O 53 r 2 touched on the underlying disciplinary proceedings, not just their prayer for a stay pending a principal application. The Law Society therefore had a legitimate interest in attending for the entirety of the hearing before me.
[18] I was also satisfied that the Law Society’s presence would not cause the applicants any prejudice, let alone any material prejudice. The submission that counsel for the Law Society’s prosecution of the applicants would be unfairly coloured by knowledge of the information presented at the leave application was without merit. Mr Singh did not assert that any of the information to be presented before me was confidential. He also did not point to any specific prejudice that the Law Society's knowledge of this material – which was, on Mr Singh’s own submission, irrelevant to the disciplinary proceedings – would cause to Mr Singh and Mr Menon there. And if counsel for the Law Society chose to attend the hearing of the leave application and as a result burdened his mind with material which was neither confidential to the applicants nor relevant to the disciplinary proceedings, the only prejudice would be to the Law Society itself, not to the applicants.
[19] I therefore allowed counsel for the Law Society to hold a watching brief for the entirety of the hearing before me. He did not address the court at all save in respect of his application to hold a watching brief. On one other occasion, he attempted to address the court, but I reminded him that he had no right to do so. He desisted. To the extent that it is necessary to record it, I took no cognisance of the little that he said.
[20] Since giving my decision on 18 February 2013, paragraph 13A of the Supreme Court Practice Directions has come into force with effect from 1 March 2013. Paragraph 13A reads as follows:
[21] The content of the new paragraph 13A(2) mirrors the language of Menon JC (as the Chief Justice then was) in Lee Hsien Loong. It does not change the law. It simply restates the law. I have aligned myself with that law and concluded that nothing specific in the context of O 53 displaces it.
Application to recuse myself
[22] The next preliminary point was one which Mr Singh raised. He submitted, on behalf of Mr Menon and himself, that I should recuse myself on grounds of apparent bias and refer their leave application to be determined by another judge. Neither Mr Singh nor Mr Menon suggested that I should not hear and determine the recusal application (cf. El-Farargy v El-Farargy [2007] EWCA Civ 1149 at [32]). Therefore, I did so.
[23] I make the following point at the outset. Like every judge, I take with utmost seriousness my solemn oath to perform my constitutional judicial duties “without fear or favour, affection or ill-will” (Art 97 read with para 6 of the First Schedule of the Constitution of the Republic of Singapore). It is therefore my invariable practice, as it must be of every judge, to consider at the earliest point in time when a matter is placed before me whether there is any reason for me to recuse myself on grounds of actual bias, apparent bias or for any other reason. In considering this issue, I consciously address my mind to any connection I might have or be seen to have with the subject-matter, with the parties, with the witnesses, with counsel or in any other material respect. Mr Singh’s and Mr Menon’s application was no exception. Before they appeared before me on 18 February 2013, I undertook this exercise with regard to their application. Further, because the applicants were two advocates and solicitors and because I have only recently left practice, I specifically considered prior to the hearing whether I had had any interaction with Mr Singh or Mr Menon while in practice which could give rise to bias or the appearance of bias. I could think of none. I did not, therefore, recuse myself before the hearing commenced on 18 February 2013.
Application made at earliest opportunity
[24] After I had disposed of the Law Society’s application to hold watching brief on the morning of 18 February 2013, Mr Singh applied to me to recuse myself. He did so on behalf of himself and Mr Menon. He began by submitting that the hearing was the earliest opportunity for them to make this application. He said that he learned only in the late afternoon of Friday, 15 February 2013 that I had been assigned to hear their application for leave the following Monday, 18 February 2013. He added that his first inclination was to seek directions from the duty judge. But, by coincidence, I was also the duty judge for the week beginning 18 February 2013. So, he submitted, the applicants had no alternative but to raise this matter at the hearing itself, to me.
[25] I had some difficulty with Mr Singh’s submission. The fact that I was the duty judge for the week beginning 18 February 2013 did not explain why Mr Singh did not follow through on his initial inclination to seek directions urgently from the duty judge on 15 February 2013, Quentin Loh J.
[26] It also did not explain why Mr Singh did not give advance notice of his application and the grounds for his application to all concerned. An applicant who intends to invite a judge to recuse himself should, upon forming that intention, give immediate notice to those concerned of both the intention and the grounds. In this case, the applicants could have foreshadowed their application and the grounds for it by letter to the Registry with a copy to the Attorney-General in the late afternoon of 15 February 2013. Indeed, they could have done so at any time up to 10.00 am on Monday, 18 February 2013. They should have done so.
[27] Be that as it may, I did not consider that any of this was a basis on which to shut the applicants out from applying to me to recuse myself. I therefore heard and considered carefully their submissions. I also permitted Mr Singh and Mr Menon to put forward the factual basis for their application from the bar in the course of their submissions rather than on affidavit despite the concerns of the Attorney-General.
Mr Singh’s four grounds for recusal
[28] The applicants’ position on recusal appeared to be that any person with any connection to Mr GP Selvam, to VK Rajah JA or to his wife, Mrs Rajah, was precluded by apparent bias from hearing their leave application. Mr Selvam has been appointed by the Chief Justice to preside over the disciplinary proceedings at which Mr Singh’s and Mr Menon’s application for leave is directed. The basis on which the applicants allege VK Rajah JA and Mrs Rajah are connected to the disciplinary proceedings underlying their application is set out in the judgment of Choo Han Teck J in Re Manjit Singh s/o Kirpal Singh and another [2012] 4 SLR 81 (“Manjit Singh (No 1)”). I need not and do not repeat here those allegations. I also need not and do not express any view on the truth of those allegations. To give the applicants the benefit of every doubt on the facts and the law, I heard and determined Mr Singh’s recusal application on the basis that he could succeed in making out apparent bias on my part if he could establish circumstances connecting me in a material way to Mr Selvam, VK Rajah JA or Mrs Rajah.
[29] Mr Singh submitted to me that I should recuse myself on the following four grounds:
(a) Aspects pertaining to Mr Singh and me. Mr Singh submitted that, when I was in practice at Shook Lin & Bok LLP, I was engaged in a matter in which there had been an acrimonious exchange of correspondence with him. In his submissions, he named Shook Lin & Bok LLP’s client and he named the junior partner at Shook Lin & Bok LLP on the file. In the course of that correspondence, he alleged that I took the position that I “would not have anything to do with [Mr] Manjit Singh and would not be communicating with him.” Mr Singh told me that for me to have taken that kind of a position against him was sufficient to cause real concern to him that I could “dissect [my] mind” and ensure that justice was not only done but was seen to be done.
(b) Aspects pertaining to Mr G P Selvam and me. Mr Selvam was a judge of the High Court, serving on the High Court bench from 1991 to 2001. Mr Punch Coomaraswamy, my late father, was also a judge of the High Court, serving from 1984 to 1993. Mr Singh submitted that, while Mr Selvam was still a High Court judge but after my father had retired, Mr Singh attended before Mr Selvam on a chambers matter. Mr Singh submitted that he saw my father sitting in Mr Selvam’s inner chambers. Mr Singh asked me to have regard to the need for me to have distance and objectivity in hearing the leave application in light of my father’s friendship with Mr Selvam.
(c) Aspects pertaining to V K Rajah JA and his wife and me. Mr Singh told me that he saw me and VK Rajah JA together with some ladies at the basement of Paragon Shopping Centre on a weekend morning. He also told me that VK Rajah JA and I would know whether those ladies were our respective wives. He said that this took place while I was still at the bar. On the basis of his sighting, Mr Singh queried me as to whether I know VK Rajah JA and his wife.
(d) Aspects especially within my personal knowledge. Mr Singh told me that whether I should recuse myself does not depend only on the material he raised to support his application. That, he submitted, is necessarily limited by what he knows about me. He submitted that I was duty-bound as a judicial officer to consider all material known to me – whether or not raised by him – in order to satisfy myself whether I should or should not decline to hear his application.
[30] Mr Menon supported Mr Singh’s application and associated himself with all of Mr Singh’s submissions.
[31] Mr Singh made it clear on a number of occasions that he did not allege actual bias on my part, but only apparent bias. But Mr Singh made it equally clear that he stopped short of alleging actual bias only because he did not yet have at hand the letter which he said I had written to him in order to prove actual bias, not because he accepted that such an allegation would be unfounded.
Law on apparent bias
[32] Justice must not only be done, but must manifestly and undoubtedly be seen to be done. Nobody can gainsay that proposition, least of all those directly involved in the administration of justice. But this does not mean that a judge should recuse himself upon mere allegations of apparent bias.
[33] Sundaresh Menon JC (as he then was) stated the legal test for apparent bias in Re Shankar Alan s/o Anant Kulkarni [2007] 1 SLR(R) 85 at [91]: are there circumstances which would give rise to a reasonable suspicion or apprehension in a fair-minded reasonable person with knowledge of the relevant facts that the decision-maker was biased? Philip Pillai J adopted and applied this test in Lim Mey Lee Susan v Singapore Medical Council [2011] 4 SLR 156 at [52] (“Lim Mey Lee Susan”). As for the characteristics of the “fair-minded reasonable person”, Pillai J at [54] adopted and applied the reasoning of Silber J at first instance, quoted with approval by Lord Philips MR in R v West Midlands and North West Mental Health Review Tribunal [2004] EWCA Civ 311 at [6]:
[34] The following further principles are also relevant:
(a) An application to a judge to recuse himself must be based on credible grounds: per Andrew Phang and VK Rajah JJA in Yong Vui Kong v Attorney-General [2011] 2 SLR 1189 at [148].
(b) “A claim that there is apparent bias on the part of a judge must be based on facts that are substantially true and accurate. The fact that an allegation of bias has been made against a judge is not enough; otherwise a party could secure a judge of his choice by merely alleging bias or apparent bias on the part of another or other judges.”:Tang Liang Hong v Lee Kuan Yew and another and other appeals [1997] 3 SLR(R) 576 at [51] (“Tang Liang Hong”).
(c) The applicant bears the onus on the application: Locabail (UK) Ltd v Bayfield Properties and another [2000] 2 WLR 870 (“Locabail”) at [21].
(d) In determining the application, the judge must have regard to the quality of the allegation. “He would be as wrong to yield to a tenuous or frivolous objection as he would to ignore an objection of substance”: Locabail at [21].
(e) To apply the test for apparent bias, “all that is necessary is to ask whether, in the light of the judge’s actual knowledge at the time of the hearing and of any other relevant facts established by the evidence”, the test is satisfied. There is no duty on the judge to make inquiries into matters that are not known to him: Locabail at [55].
[35] I determined the applicant’s submissions bearing these principles in mind.
Mr Singh’s first ground: an acrimonious matter with him
[36] The applicants’ application that I should recuse myself was unsound in law and in fact.
[37] I deal first with Mr Singh’s first ground – aspects pertaining Mr Singh and me. As stated at [23] above, before the hearing in this matter commenced, I considered whether there were any factors at all that should lead me to decline to hear the matter. I concluded then that there were none.
[38] When Mr Singh, in the course of his submissions, named a specific client and a specific junior partner at my former firm, that jogged my memory about the matter which Mr Singh mentioned. I could remember the existence of the matter and the client. I could also remember that it was not a substantial matter for me and that I therefore assigned it to the junior partner. I could also remember that I left it to him to run the matter from beginning to end. But even with the assistance of the details which Mr Singh supplied, I could not remember what the matter was about, I could not remember interacting with Mr Singh in connection with it and I could not remember the correspondence exchanged in it. I could not even remember when it took place. All I could say was that it must have taken place more than six years ago because that was when the junior partner who handled the matter left my former firm.
[39] I also have no recollection whatsoever of the acrimonious letter said to have been written in that matter to Mr Singh. He informed me that he did not have a copy of the letter because the file was no longer with him. He suggested that I was in a better position than he was to obtain a copy of that letter. That is not correct: having left my former firm, I quite rightly no longer have direct or indirect access to any of its client-confidential material. In any event, a judge who is asked to recuse himself “has no obligation to disclose what he does not know. Nor is he bound to fill any gaps in his knowledge which, if filled, might provide stronger grounds for objection to his hearing . . . the case”: Locabail at [26]. The same is true of matters of which the judge no longer has any recollection. I made this precise point to Mr Singh in the course of submissions, though I did so as a matter of common sense, without reference to authority.
[40] The applicants’ main point under this head appeared to be that even if I had no recollection of the letter, they recollected the letter and that caused each of them to harbour deep concerns about my objectivity. Indeed, Mr Singh in terms invited me to hold as follows: “All right, Mr Singh, I cannot say that the concerns are proved, but I can understand your concerns sufficient for me to say to do justice, I will remit the file to another High Court Judge”. But that is not the test for apparent bias. When I pointed this out to Mr Singh, he simply asserted again that the reasonable observer would indeed find sufficient concerns. So it is to that test which I now turn.
[41] In my view, even if a letter as described by Mr Singh was issued to him, I have no doubt that the test for apparent bias would not be satisfied. The fair-minded reasonable person would bear in mind the following:
(a) Mr Singh told me that one of his admitted weaknesses is that he does not associate in any way with persons for whom he does not have full regard or respect. He told me that it was for that reason that he had kept a distance from me when we were both at the bar. But Mr Singh did not suggest that I was ever aware of his feelings towards me. Nor does he suggest that I have ever on any occasion – other than in the one letter said to have been written – expressed or manifested any animosity or lack of regard or respect towards him. That is correct: I had and have no reason to do so.
(b) Lawyers not infrequently do write strongly-worded letters to one another. They quite often rely on hyperbole for effect. But they do all of this as professionals carrying out their duties to their clients, on instructions from their clients. Able advocates never share their client’s hostility to the opposing party or to opposing counsel, no matter how acrimonious the correspondence may appear on its surface to be.
(c) Mr Singh himself, an undoubtedly able advocate, is equally undoubtedly well aware of all of this. He has no doubt written and received many of these letters in the course of his practice without any transient or enduring personal animosity in the writer or the recipient.
(d) Other than its existence and the junior partner handling it, I have no recollection of the matter which Mr Singh raised or of any acrimonious letter written in the course of that matter.
(e) I had and have no general feeling of transient or lingering personal animosity towards Mr Singh whether during that matter, arising from that matter or from that letter or otherwise. “How can there be . . . any real apprehension or likelihood of bias, if the judge does not know of the facts that, in argument, are relied on as giving rise” to the grounds for apparent bias?: Locabail at [55].
(f) The matter in question took place more than six years ago. “The greater the passage of time between the event relied upon . . . and the case in which the objection is raised, the weaker (other things being equal) the objection will be”: Locabail at [25].
[42] For all these reasons, I was satisfied that a letter said by Mr Singh to have been written over six years ago, even if it existed, and the matter in which it was said to have been written do not constitute circumstances which would give rise to a reasonable suspicion or apprehension in a fair-minded reasonable person with knowledge of the relevant facts that I was biased against Mr Singh or Mr Menon.
Mr Singh’s second ground: aspects pertaining to Mr GP Selvam and me
[43] Mr Singh’s second ground relied on aspects pertaining to Mr GP Selvam and me. To support this ground, Mr Singh relied on my late father’s relationship with Mr Selvam. My late father, Mr Punch Coomaraswamy, retired from the bench in 1993 and passed away in 1999. He was a colleague of Mr Selvam on the High Court bench. They no doubt kept in touch even after my father retired in 1993 and before Mr Selvam retired in 2001. They may even have met, as alleged by Mr Singh. But I was not aware then and am not aware now of any meetings they might have had before, during or after that period. I do not and cannot know whether, as Mr Singh says, my father was in Mr Selvam’s inner chambers on the occasion that Mr Singh cites – or indeed on any other occasion.
[44] Indeed, Mr Singh put forward no facts concerning my relationship (as opposed to my father’s relationship) with Mr GP Selvam which would or could constitute circumstances satisfying the test for apparent bias. He did not do so because he could not do so. He could not do so because there are none. My own relationship with Mr Selvam is and has always been purely professional. I have never interacted with him socially. I would not presume to call him a friend or even a friend of the family.
[45] Mr Singh’s second ground, therefore, is no ground at all. There was zero factual basis under this head for the test of apparent bias to be applied to.
Mr Singh’s third ground: aspects pertaining to VK Rajah JA and Mrs Rajah and me
[46] Mr Singh’s third ground relied on aspects pertaining to VK Rajah JA and Mrs Rajah and me. Mr Singh put forward only one positive circumstance which could conceivably satisfy the test of apparent bias. That was Mr Singh’s alleged sighting on a weekend morning at the basement of the Paragon Shopping Centre (see [29(c)] above). I told Mr Singh specifically and categorically that no such meeting ever took place. Mr Singh did not accept what I told him. He told me: “I hear Your Honour, but I am sorry to say, I did see Mr Rajah, I did see Your Honour and I did see the ladies.” He declined to withdraw his assertion.
[47] Instead, he queried me whether there were other circumstances not known to him in my relationship with VK Rajah JA and his wife which could give rise to apparent bias. There are none. I am now a judicial commissioner of a court below that of VK Rajah JA. Our relationship past and present has always been purely professional. We never – not even once – interacted socially when I was at the bar. That is why I can say with certainty that I have never met VK Rajah JA as alleged by Mr Singh. Even now, our social interaction is limited to formal or semi-formal events organised for members of the judiciary. As for Mrs Rajah, I have met her on perhaps three occasions before joining the bench and perhaps two occasions after. All of our interchanges have comprised purely perfunctory exchanges of pleasantries. My wife has no separate relationship of any kind with Mrs Rajah.
[48] Mr Singh’s third ground for suggesting apparent bias was no ground at all. An application to recuse based on apparent bias must be based on credible grounds, not on conjecture or on misapprehensions. Further, “[a] Judge is not obliged to withdraw based on facts which are inaccurate, false or devoid of substantiation” (see Tang Liang Hong at [51]). Once again, there was zero factual basis under this head for the test of apparent bias to be applied to.
Mr Singh’s fourth ground: other aspects uniquely within my personal knowledge
[49] Mr Singh’s fourth ground relied on aspects within my personal knowledge which might affect my objectivity but which were not within his personal knowledge. He connected this final ground to each of his preceding three grounds, but relied on it as an independent ground as well. This ground is not a valid ground on which to invite a judge to recuse himself for apparent bias. Because judicial officers are bound by their judicial oath (see [23] above), the onus on a recusal application lies on the party making the application: Locabail at [21]. A party who raises a ground such as Mr Singh’s fourth ground shirks that onus.
[50] Despite this, I indulged Mr Singh and Mr Menon. I disclosed the facts and circumstances set out above on each of the three preceding grounds which Mr Singh raised. I have already explained why none of them could conceivably have satisfied the test of apparent bias. There were no other grounds known to me but unknown to Mr Singh for Mr Singh’s fourth catch-all ground to catch.
[51] In the result, I declined to recuse myself from hearing the applicants’ leave application.
Leave to appeal my refusal to recuse myself
[52] Immediately after I made known my decision not to recuse myself, the applicants indicated their intention to appeal to the Court of Appeal against my decision. The applicants needed leave to appeal because their recusal application was an interlocutory application within the meaning of paragraph (e) of the Fifth Schedule to the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) read with s 34(2)(d) of that Act. Given the importance of this matter to the applicants personally and professionally, I did not wish to stand in their way in case I had gone wrong in my decision. So I granted them leave to appeal. The Attorney General did not object.
[53] I leave this section of my judgment by noting that nothing that either Mr Singh or Mr Menon had said to me in the course of their submissions on their recusal application moved me from a position of neutrality on the matters before me.
The Leave Application
Evidence before the Court
[54] With the two preliminary points disposed of, I now turn to the applicants’ leave application itself. In determining this application, I took into account all of the evidence in all of the affidavits placed before me. The applicants also placed before me, but only towards the end of their submissions, four recent letters which they had not exhibited to any of their affidavits. I took these letters into account also, on the applicants’ undertaking that the letters would be exhibited to a fresh affidavit to be filed at the earliest opportunity. These letters have since been exhibited to the 4th affidavit of Mr Menon filed on 19 February 2013.
[55] I now set out the factual background leading up to and subsequent to the applicants’ leave application, the relief sought by the applicants and my determination of the application.
Factual background
DT gives directions on 3 January 2013
[56] On 3 January 2013, the DT held a hearing for directions. The applicants and counsel for the Law Society attended this hearing. Counsel for the Law Society informed the DT at the outset about Ms Rankine’s letter. He further informed the DT that he had taken instructions from the Law Society as to whether it wished to proceed with the disciplinary proceedings in view of Ms Rankine’s letter. He told the DT that the Law Society had instructed him to proceed with the charges against the applicants. The applicants did not object. They did not allege that the Law Society’s decision to proceed with the inquiry despite Ms Rankine’s withdrawal was irrational, ultra vires or otherwise contrary to law. They did not assert a right to have the DT proceedings terminated by reason only that Ms Rankine had voluntarily withdrawn her complaint. They did not even reserve their right to take these points at some later time or before some other forum. Their only complaint was that they had not brought their diaries with them because they had not been told in advance – unlike on a previous occasion – that they would need to take dates.
[57] The DT suggested some dates and gave them an opportunity to check their diaries with their office by telephone. The applicants did so. With the applicants’ consent, therefore, the DT directed that the hearing take place from 13 to 23 February 2013.
[58] On 3 January 2013, the DT also gave directions on the Law Society’s renewed application to the DT for leave to prefer an additional charge against the applicants. The applicants accepted that the Law Society had the right to make that application and to have it assessed by the DT. They did not suggest that it was wrong in law for the Law Society even to apply for leave to prefer an additional charge against them. They did not suggest that the genesis of this additional charge against each of them was in any way tainted. They did not reserve their position on these issues. Mr Singh’s only concern was to ensure that the Law Society gave him a copy of its written submissions dated 20 May 2012. Counsel for the Law Society indicated that that would be the only material that the Law Society would rely upon at the hearing of its application. The DT gave procedural directions for the exchange of submissions and fixed a date to hear the Law Society’s application. The applicants consented to these directions.
Correspondence with the Law Society and Chief Justice
[59] Over the weekend between 3 January 2013 and 7 January 2013, the applicants’ position evolved. On 7 January 2013, the applicants wrote to the Law Society. They drew the Law Society’s attention to Ms Rankine’s unreserved withdrawal of her complaint dated 23 November 2012. They complained that neither Ms Rankine nor they were either consulted or heard before the Law Society took the decision to proceed with the matter against them. They concluded their letter by asking the Law Society to state precisely by which of its organs or officers that decision had been made, the procedure by which that decision had been made and the statutory provision under which that decision had been made. They also asked the Law Society to supply copies of all documents evidencing the process by which that decision had been made.
[60] On 11 January 2013, the applicants wrote to the Chief Justice. They put before the Chief Justice their letter dated 7 January 2013 to the Law Society. They drew the Chief Justice’s attention to the matters raised in that letter and to s 90(3)(a) of the Act. They expressed the view that neither the interests of justice nor of the legal profession would be served by “persecuting” them or pursuing the proceedings in circumstances where Ms Rankine had withdrawn her complaint and where the possibility of future adjustments after the DT’s decision would not provide them any comfort. They humbly urged the Chief Justice to exercise his power under s 90(3)(a) of the Act and revoke the appointment of the DT in the circumstances of this case.
[61] On 11 January 2013, the Law Society responded to the applicants. The Law Society pointed out that it had a statutory duty under s 89(1) of the Act to apply to the Chief Justice to appoint a DT to hear and investigate a complaint which merited formal investigation. The Law Society pointed out that once appointed, a DT has a statutory duty under section 89(1) of the Act to hear and investigate the matter before it. The Law Society pointed out that a DT remained subject to its statutory duty even if a complainant withdrew her complaint after its appointment. The Law Society concluded by inviting the applicants to raise to the DT any issues or points they had about the continuation of the DT despite Ms Rankine’s withdrawal of her complaint. The applicants received this letter on 14 January 2013.
[62] On 15 January 2013, the applicants responded to the Law Society’s letter of 11 January 2013. They noted that the Law Society’s position was that the proceedings continued because the DT was statutorily bound to do so. They said that this conveyed the impression that the Law Society did not make the decision of its own volition. They rejected this position as a matter of law. They asserted that there was no statutory basis for this position. They cited two authorities which they said contradicted the Law Society’s view of the law. They pointed out that the Law Society’s position was new and was inconsistent with the position taken by its counsel on 3 January 2013. The applicants’ point was that the Law Society’s decision was conveyed to the DT as an exercise of volition. It will be remembered that Law Society’s counsel had informed the DT then that the Law Society had first considered whether it wished to proceed with the disciplinary proceedings and had then instructed him to do so (see [56] above). The applicants reiterated their complaint that they had had a right to be heard by the Law Society before it had decided to proceed with the disciplinary proceedings against them.
[63] On the same day, 15 January 2013, the applicants wrote to the Chief Justice. They enclosed a copy of their response to the Law Society of that date. They reiterated that they urged the Chief Justice to exercise his power under s 90(3)(a) of the Act to revoke the appointment of the DT.
[64] On 17 January 2013, counsel for the Law Society wrote to the Chief Justice responding to the points made by the applicants in their letter dated 15 January 2013. Counsel for the Law Society pointed out that the Act did not contain any specific provision empowering the Law Society to “withdraw or discontinue” the DT proceedings. He reiterated the Law Society’s position that it had no power to “seek termination or revocation” of the DT’s appointment and that the only power to revoke the appointment of the DT was the power vested in the Chief Justice under s 90(3) of the Act. He took the position that the proper course for the applicants would be to make submissions to the DT on the effect of Ms Rankine’s withdrawal of her complaint.
[65] On 21 January 2013, the applicants wrote to the Chief Justice. They responded to the letter from counsel for the Law Society to the Chief Justice dated 17 January 2013. They pointed out that the Law Society undoubtedly has the power to apply to a DT to withdraw or discontinue an inquiry pending before it. They also pointed out that the Law Society undoubtedly has the power to invite the Chief Justice to exercise his power under section 90(3)(a) of the Act to revoke the appointment of a DT. They expressly took the position that it was wrong in law for the disciplinary proceedings to continue in light of Ms Rankine’s withdrawal of her complaint. They objected in limine to the DT’s decision even to hear the Law Society’s renewed application to prefer an additional charge. They took the position that the legislative objective of s 90(3)(a) is “to ensure that justice is served,” requiring “all relevant considerations to be reviewed.”
[66] On 22 January 2013, the Law Society wrote to the applicants. They received this letter on 23 January 2013. In this letter, the Law Society referred to its counsel’s letter dated 17 January 2013 to the Chief Justice as setting out its position. The Law Society declined to furnish to Mr Singh and Mr Menon any information or documents about its internal decision-making processes. The Law Society once again invited the applicants to take up with the DT their points arising from Ms Rankine’s withdrawal of her complaint.
[67] On 24 January 2013, the applicants wrote to the Chief Justice again. They complained that the Law Society was acting beyond its powers even to seek to prefer an additional charge against them. They asserted that s 90(3) “empowers the Chief Justice to review any issue of law concerning an additional charge in the consideration as to whether the DT should be revoked.” They asserted that the Chief Justice ought to revoke the appointment of the DT because it was clear that the premise at law for the additional charge was not proper. They said that the appropriate “relief should be granted at the earliest”. They concluded by asking the Chief Justice for an urgent response and in any event by 30 January 2013 in light of the DT hearing then scheduled to commence on 13 February 2013.
[68] It suffices for the moment to note the following points about the applicants’ correspondence with the Chief Justice. It was the applicants who, by their very first letter dated 11 January 2013, chose to seek out the Chief Justice in order to urge him to exercise his power under s 90(3)(a). They did not take the position in any letter that the Chief Justice should not deal with their request, whether on grounds of apparent or actual bias or on any other grounds. They said in their letters of 11 January 2013 and 21 January 2013 that they were available at short notice to address the Chief Justice. But they did not take the position that the Chief Justice was obliged to hear them. They did not take the position that the Chief Justice was obliged to respond. They did not take the position that if the Chief Justice did so, he was obliged to respond within a specified or a reasonable time. They did not take the position that the Chief Justice was obliged to give reasons for his response. They did not take the position that the Chief Justice was obliged in law to revoke the DT’s appointment in light of Ms Rankine’s withdrawal and the Law Society’s failure to put any contrary material before him. Until their letter dated 21 January 2013, they did not take the position that the DT’s decision simply to hear the Law Society’s renewed application to prefer an additional charge caused them any prejudice in itself.
Mr Singh and Mr Menon apply for leave to bring judicial review proceedings
[69] At 11.10 am on 4 February 2013, Mr Singh and Mr Menon filed their application under O 53 r 1(2) of the Rules of Court supported by the required statement and affidavit.
[70] At 4.15 pm on the same day, Mr Singh and Mr Menon received a letter from the DT Secretariat. The letter conveyed the Chief Justice’s response to Mr Singh and Mr Menon. The letter began by confirming that all the correspondence between the parties up to 4 February 2013 had been placed before the Chief Justice as requested. The letter concluded by conveying the Chief Justice’s view “that the proceedings that are now before the Disciplinary Tribunal in relation to the matters for which [it] was constituted should take their course” and that the applicants may raise any issues “pertaining to any determination of the [DT] in connection with the additional charge or otherwise . . . in accordance with the applicable procedures set out in the [Act]”.
[71] On 13 February 2013, the DT commenced its hearing. The applicants sought an adjournment of the hearing until after this application had been heard. The DT President, relying on the Chief Justice’s letter dated 4 February 2013, indicated that he was not inclined to adjourn the proceedings. The applicants then withdrew from the DT hearing. They appeared urgently before the duty registrar and then before the duty judge, Quentin Loh J. They asked Loh J to stay the DT proceedings until this application had been heard. The Attorney-General was not informed of this urgent application and was therefore not heard. The Law Society was aware of this application and its counsel was heard on it. After hearing arguments, Quentin Loh J granted what was expressed to be a stay of the DT proceedings until the hearing of the applicants’ leave application fixed for 18 February 2013.
[72] On 14 February 2013, the applicants wrote to the Chief Justice. They drew to his attention the events of 13 February 2013. They asked the Chief Justice once again to exercise his power under s 90(3)(a) of the Act and revoke the appointment of the DT.
[73] On 15 February 2013, the applicants wrote again to the Chief Justice. They accused the DT President, Mr Selvam, of bias. For the first time, they drew to the Chief Justice’s attention certain events which occurred on 21 May 2012 in relation to the additional charge which the Law Society was seeking to prefer against them. Their fundamental point was that because of these events, amongst others, they were concerned that they would not get a fair hearing before the DT. They criticised the DT President for, amongst other reasons, not hearing them on 3 January 2013 after counsel for the Law Society conveyed the Law Society’s intention to proceed with the inquiry. But it will be remembered that the applicants neither objected to the Law Society’s position nor reserved their right to do so (see [56] above).
[74] On 15 February 2013, the DT Secretariat wrote a letter to Mr Singh and Mr Menon. The letter informed them that the Chief Justice, “having considered the matter, does not revoke the appointment of the Disciplinary Tribunal”.
[75] On 18 February 2013, Mr Singh and Mr Menon replied to the Chief Justice. They took the position that “Section 90(3) is a substantive provision of law passed by Parliament for an appropriate person to grant access to justice and reliefs for withdrawn complaints taken with the benefit of legal advice and on the record since 23rd November 2012.” They stated their view that s 90(3) is an overriding substantive power which the Chief Justice can exercise at any time, and was not subservient to procedures or to the DT proceedings. They took the position that they disagreed with the Chief Justice’s view of the law and would “pursue all rights in law”.
[76] That is where the correspondence rested when I heard Mr Singh’s and Mr Menon’s application on 18 February 2013.
Relief sought
[77] The relief which Mr Singh and Mr Menon sought leave to apply for comprised the following 7 prayers:
[78] I shall refer to these prayers by the numbers which the applicants assigned to them.
[79] Prayer 1 sought leave to apply for an order to compel the Chief Justice to exercise his power under s 90(3) of the Act. When the applicants filed their application at 11.10 am on 4 February 2013, the Chief Justice had not yet exercised his power either way under s 90(3) of the Act. I therefore read prayer 1 as a prayer for a mandatory order to compel the Chief Justice simply to exercise his power whereas Prayer 3 was a prayer for a specific mandatory order to compel the Chief Justice to exercise his power in a particular way: by revoking the appointment of the DT. But after the application was filed, the Chief Justice did exercise his power under s 90(3) as conveyed by the DT Secretariat’s letter dated 4 February 2013, albeit not in the manner the applicants prayed for in prayer 3. It seemed to me that what the applicants needed in light of subsequent events was no longer leave to apply for an order in terms of prayer 1 but leave to apply for an order to quash the Chief Justice’s exercise of his power under s 90(3) on 4 February 2013.
[80] I therefore inquired at the outset of the substantive hearing whether the applicants still sought leave to apply for an order in terms of prayer 1, given the supervening events. Mr Singh’s position was that they did. He submitted, first, that I ought to approach his leave application on the facts as they stood on 4 February 2013, not as they stood on 18 February 2013. I address this submission at [134] below. He submitted, further, that the DT Secretariat’s letter dated 4 February 2013 did not, in terms, convey an exercise of the Chief Justice’s power under s 90(3) of the Act one way or the other. What Mr Singh was looking for, it appears, was either a statement that “The Chief Justice exercises his power under s 90(3)(a) of the Act and revokes the appointment of the DT” or a statement that “The Chief Justice declines to exercise his power under s 90(3)(a) of the Act to revoke the appointment of the DT”. At this point in the hearing, Mr Singh had not yet placed before the court the DT Secretariat’s letter dated 15 February 2013 (the contents of which are briefly described at [74] above) doing precisely that.
[81] Mr Singh did, however, accept that it was possible on one view to read the DT Secretariat’s letter of 4 February 2013 as conveying the Chief Justice’s exercise of his power under s 90(3) even though that was not Mr Singh’s view. He therefore sought leave to amend the omnibus prayer 4 by adding a specific prayer on an alternative case. His proposed amendment was to add the following words to prayer 4: “In the event Prayer 1 is not granted because of the delayed response of the Chief Justice sent after the OS was filed, there be an order that the decision of the Chief Justice given on 4th February, received at 4.15, be quashed”. The Attorney-General did not object to the application. I therefore granted the applicants leave to amend the leave application in those terms. For the purposes of the leave application and any appeal from it, the Attorney-General confirmed that no objection would be taken to the discrepancy between the amended leave application and the unamended statement in support of it. But the Attorney-General took the position that, if leave were granted, the applicants would need to seek leave of court at the substantive judicial review application to align their statement with the leave that had been granted on the basis of the amended originating summons.
[82] The applicants also agreed to withdraw prayer 2 at the leave stage. The Attorney-General pointed out that prayer 2, despite being worded ostensibly as a prayer for an order, was in substance a prayer for a declaration. An applicant under O 53 needs leave to make a principal application for a mandatory order, a prohibiting order or a quashing order but not to make a principal application for a declaration: Vellama d/o Marie Muthu v Attorney-General [2012] 4 SLR 698 at [32] (“Vellama”). The applicants therefore did not need at the leave stage to include prayer 2, and I did not at the leave stage need to deal with it. They therefore withdrew prayer 2, while reserving their right to seek that declaration on any principal application that I might give them leave to make.
Whether leave to apply for judicial review should be granted
[83] It is well-established that leave to apply for judicial review is not granted unless the court is satisfied that: (a) the matter complained of is susceptible to judicial review; (b) the applicants have sufficient interest in the matter; and (c) the material before the court discloses an arguable case or a prima facie case of reasonable suspicion in favour of granting the public law remedies sought by the applicant: Lim Mey Lee Susan at [3]; Vellama at [10]; Jeyaretnam Kenneth Andrew v Attorney-General [2012] SGHC 210 at [5].
Susceptible to judicial review
[84] At the hearing, the Attorney-General accepted that the exercise by the Chief Justice of his power under s 90(3)(a) of the Act was susceptible to judicial review. This concession must be correct. As the Court of Appeal said in Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR(R) 133 at [41] - [42] (“Lai Swee Lin Linda”), when a decision is made in the exercise of a power, one of the tests – and usually the decisive test – for whether that decision is susceptible to judicial review is whether the source of the power is public law. That test will typically be satisfied if the source of the power is statute or subsidiary legislation. In this case, the power of the Chief Justice in question is his statutory power under s 90(3)(a) of the Act to revoke the appointment of a DT. Accordingly, the exercise of that power must, at least in principle, be susceptible to judicial review.
[85] However, I am aware that this conclusion could be seen to conflict with the decision of Choo J in Manjit Singh (No 1) ([28] above). He determined at first instance the applicants’ earlier judicial review proceedings. There, the applicants sought leave to apply to quash the Chief Justice’s exercise of his power under s 90(1) of the Act to appoint Mr Selvam to be the President of the DT. Choo J dismissed the applicants’ application for leave. One of the grounds Choo J gave for dismissing the application was that the Chief Justice’s exercise of his power under s 90(1) was not susceptible to judicial review. Choo J gave two reasons for this conclusion:
(a) The Chief Justice, in appointing Mr Selvam, was acting in a judicial capacity. Orders made in the Chief Justice’s judicial capacity are not subject to judicial review, because judicial review does not lie against decisions of the High Court. Even if the Chief Justice was acting in an administrative rather than judicial capacity, his was a “ministerial” act, which means that it did not involve the exercise of any discretion or judgment. “Ministerial” acts are not subject to judicial review (at [6]).
(b) The statutory disciplinary scheme enacted by Parliament in the Act – and in particular s 91A of the Act – made it clear that the appointment of the President of a DT is not susceptible to judicial review (at [7]).
[86] The applicants appealed against the decision of Choo J. The Court of Appeal dismissed the appeal, indicating it would deliver its grounds separately. Mr Singh submitted to me that his impression in the course of argument was that the Court of Appeal was of the view that the exercise of the Chief Justice’s power under s 90(1) of the Act was susceptible to judicial review. I do not wish to pre-empt – or worse, cut across – anything the Court of Appeal might say regarding this aspect of Choo J’s decision. But I do not consider that Choo J’s reasoning concerning s 90(1) of the Act leads to the conclusion that the Chief Justice’s exercise of his power under s 90(3)(a) of the Act is not susceptible to judicial review.
[87] First, whatever the case may be when the Chief Justice exercises his power to appoint a DT under s 90(1) of the Act, he does not act in a judicial capacity when he exercises his power under s 90(3)(a) of the Act to revoke the DT’s appointment. Neither do I think that his exercise of the s 90(3)(a) power is merely “ministerial”. Choo J relied, for his decision on s 90(1) of the Act, on the Court of Appeal’s decision in Lim Mey Lee Susan. In that case, the Court of Appeal characterised the Singapore Medical Council’s appointment of members of a Disciplinary Committee as “ministerial” because it is obliged by statute to appoint a Committee once certain statutory prerequisites are satisfied (at [19(e)]). The only discretion it has is in the selection of the Committee’s members (at [47]-[48]). By contrast, section 90(3)(a) of the Act gives the Chief Justice what is clearly a power. It does not impose an obligation. And, with respect, I do not in any event read Lim Mey Lee Susan as authority for the proposition that “ministerial” powers are not susceptible to judicial review.
[88] Second, I do not think that s 91A of the Act can govern whether the exercise of the Chief Justice’s power under s 90(3)(a) of the Act is susceptible to judicial review. Section 91A in terms excludes judicial review only in respect of acts done and decisions made by a DT. What the applicants challenge before me is not any act or decision of the DT, but an act or decision of the Chief Justice. Section 91A may be relevant to this application insofar as it sheds light on the underlying policy of the statutory disciplinary scheme. But it would be taking purposive statutory interpretation too far to read s 91A as excluding judicial review of the Chief Justice’s decisions under s 90(3)(a).
Sufficient interest
[89] Again, the Attorney-General did not dispute that the applicants have sufficient interest in the matter. Subject to the point I make at [116] below, this must be right. The applicants are the subject of the disciplinary proceedings in question and their professional reputations and status are very much at stake.
Arguable case or prima facie case of reasonable suspicion
Origins of the test
[90] The final requirement is that the applicants must establish an arguable case or a prima facie case of reasonable suspicion in favour of granting the public law remedies which they seek.
[91] I have always found curious the phrase “a prima facie case of reasonable suspicion”. The concept of a “prima facie case” and the concept of “reasonable suspicion” are two legal concepts which are usually presented by way of contrast to each other in the criminal law not the civil law. Further, “reasonable suspicion” implies that there is an unknown fact which an applicant suspects on reasonable grounds to be true but is unable to establish at a prima facie level. Judicial review permits a party to challenge administrative action on grounds of illegality, irrationality or procedural impropriety (per Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410D (“CCSU”).) The basis for bringing the challenge on any one of these grounds in the typical judicial review case will involve questions of law, not fact, and will be patent, not latent. In applying for leave in the typical case, the suspicions of the applicant or the Court about the facts will be wholly irrelevant, whether reasonably held or otherwise.
[92] To understand this formulation of the test in context, I go back to its origins. The first Court of Appeal decision in Singapore to adopt this formulation is Chan Hiang Leng Colin and others v Minister for Information and the Arts [1996] 1 SLR(R) 294 at [21] (“Colin Chan”). The Court of Appeal drew this formulation from the decision of the House of Lords in Inland Revenue Commissions v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 643. In that case, the applicant federation suspected that the tax authorities had granted an income tax amnesty to a particular class of income tax defaulters for an improper motive: as capitulation to threats of industrial action by trade unions. The federation therefore sought a declaration that the amnesty was ultra vires and an order of mandamus to require the tax authorities to collect the unpaid income tax from the defaulters covered by the amnesty.
[93] To make out its case at the leave stage, the federation produced evidence which it asserted showed the significantly harsher treatment which the tax authorities had meted out to two other categories of tax defaulters who did not have trade union backing. Lord Diplock accepted that this evidence had “made out a prima facie case, albeit a somewhat flimsy one” of the differing treatment of the three classes of tax defaulters. This gave rise to a “reasonable suspicion” that the tax authorities had been motivated by ulterior reasons extraneous to good management (at 643). For that reason, he held that the federation had been correctly found to have standing to bring judicial review proceedings challenging the amnesty as ultra vires. In the factual context of that case, it was appropriate for Lord Diplock to have spoken of a “prima facie case of reasonable suspicion” (at 643G): the only grounds on which the applicants argued that the tax authorities’ amnesty was ultra vires was by reason of a hidden improper motive. But I have some difficulty in transposing this formulation of the test to the usual application for leave to bring judicial review proceedings where the grounds for alleging an act was illegal, irrational or procedurally improper will ordinarily be manifest.
[94] For this reason, I prefer the formulation which expresses the test at the leave stage as “an arguable case”. Lord Diplock used this test as an equivalent alternative formulation to a “prima facie case of reasonable suspicion” (at 644A). The Court of Appeal in Colin Chan too saw no difference between an “arguable case” and a “prima facie case of reasonable suspicion” (at [22]-[25]).
[95] I am mindful that, whichever formulation of the test I adopt, it is intended to be a means of filtering out groundless or hopeless cases at an early stage, to prevent a waste of judicial time and to protect public bodies from harassment: Lai Swee Lin Linda at [23]. To serve its purpose, the test must be given some meaning. But at the same time, I am mindful that, however the test may be expressed, it is a “very low threshold”: Vellama at [29].
[96] I now examine the relief which the applicants seek to see whether the material before me discloses an arguable case that the Chief Justice’s response to the applicants’ invitation under s 90(3)(a) of the Act is vitiated as the applicants allege.
Applicants’ legal position on 18 February 2013
[97] Although the applicants’ legal position evolved over time in the course of the events I have summarised at [56]-[75], at the heart of the applicants’ legal position as it stood on 18 February 2013 on all of the prayers they were pursuing were the following stark propositions of law:
(a) Section 90(3)(a) of the Act gives interested persons the right to ask the Chief Justice to revoke the appointment of a DT and imposes a duty on the Chief Justice to consider the material put before him and to act on any such application.
(b) If the Chief Justice receives a request to exercise his power under s 90(3)(a) of the Act on grounds that the complainant has voluntarily withdrawn her complaint, and there is no contrary material placed before the Chief Justice, then the Chief Justice is obliged to revoke the DT’s appointment. Every other decision by the Chief Justice is unreasonable in the Wednesbury sense.
[98] Mr Singh’s submission gives rise to two subsidiary issues of law. First, do the applicants have an arguable case on their interpretation of s 90(3)(a) of the Act? Second, do the applicants have an arguable case that when a complainant to the Law Society voluntarily and unreservedly withdraws her complaint, and there is no material to contradict that, the disciplinary proceedings must be revoked?
Statutory scheme for processing complaints
[99] I begin my analysis of these two questions of law by summarising the statutory procedure set in motion when a complainant makes a complaint to the Law Society against an advocate and solicitor under s 85(1) of the Act. If the complaint fulfils the formal requirements of s 85(1), the Law Society is obliged to refer the complaint to the Chairman of the Inquiry Panel: s 85(1A). The Chairman of the Inquiry Panel is obliged to constitute a Review Committee to review the complaint: s 85(6). Unless the Review Committee finds that the complaint is frivolous, vexatious, misconceived or lacking in substance, it is obliged to refer the matter back to the Chairman of the Inquiry Panel (s 85(8)), who is obliged to constitute an Inquiry Committee to inquire into the complaint: s 85(10). If the Inquiry Committee decides, after inquiry, that a formal investigation by a DT is necessary, it is obliged to make that recommendation to the Law Society and to recommend the charges to be preferred against the advocate and solicitor: s 86(7)(a). The Law Society is then obliged to apply to the Chief Justice to appoint a DT: s 87(2)(a) read with s 89(1). The Chief Justice then exercises his power under s 90(1) to appoint a DT.
Effect in law of withdrawal of a complaint
[100] Disciplinary proceedings against an advocate and solicitor do not come to an automatic end when the complainant withdraws the complaint, no matter how voluntarily or unreservedly. The charges which the Law Society formulates are conceptually distinct from and independent of the original complaint. Even if the complaint is withdrawn, the charges are not by that fact alone withdrawn. The proceedings before the DT do not by that fact alone cease. The DT continues to be under a statutory duty formally to investigate the charges. This position is well-established by the decisions of the Court of Three Judges in Re Shan Rajagopal [1994] 2 SLR(R) 60 (at [15]) and Law Society of Singapore v Ahmad Khalis bin Abdul Ghani [2006] 4 SLR(R) 308 (at [27]). As explained in Re Shan Rajagopal at [15], “the withdrawal of the complaint cannot affect the jurisdiction of the Disciplinary Committee to hear and investigate ‘the matter’ which, as the Disciplinary Committee rightly pointed out, refers to the charges formulated by the Law Society and not the original complaint.”
[101] All of this must be correct. The Law Society prefers charges against an advocate and solicitor not to vindicate the complainant’s private rights or to protect the complainant’s private interests. The Law Society prefers charges against an advocate and solicitor because it is in the public interest and in the profession’s interest for a DT to receive evidence and determine whether or not the advocate and solicitor is guilty of professional misconduct on those charges. When a complainant withdraws her complaint, no matter how voluntarily or unreservedly she does so, it does not follow that it ceases by that fact alone to be in the public interest and in the profession’s interest for the DT to make that determination.

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Manjit Singh s/o Kirpal Singh and another v Attorney-General

Laws this judgment relies on

Grounds of decision

Introduction

Ms Rankine complains to the Law Society

Mr Singh and Mr Menon apply for judicial review

Two preliminary applications

Law Society seeks to hold a watching brief

Application to recuse myself

Application made at earliest opportunity

Mr Singh’s four grounds for recusal

Law on apparent bias

Mr Singh’s first ground: an acrimonious matter with him

Mr Singh’s second ground: aspects pertaining to Mr GP Selvam and me

Mr Singh’s third ground: aspects pertaining to VK Rajah JA and Mrs Rajah and me

Mr Singh’s fourth ground: other aspects uniquely within my personal knowledge

Leave to appeal my refusal to recuse myself

The Leave Application

Evidence before the Court

Factual background

DT gives directions on 3 January 2013

Correspondence with the Law Society and Chief Justice

Mr Singh and Mr Menon apply for leave to bring judicial review proceedings

Relief sought

Whether leave to apply for judicial review should be granted

Susceptible to judicial review

Sufficient interest

Arguable case or prima facie case of reasonable suspicion

Origins of the test

Applicants’ legal position on 18 February 2013

Statutory scheme for processing complaints

Effect in law of withdrawal of a complaint