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Grounds publishedDecided 25 Nov 2015
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Court of Appeal

Tan Seet Eng v Attorney-General and another matter

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[2015] SGCA 59Case no. Civil Appeal No 201 of 2014 and Summons No 263 of 2015

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  1. Sundaresh Menon CJ (delivering the judgment of the court):

  2. Introduction

  3. [1] The rule of law is the bedrock on which our society was founded and on which it has thrived. The term, the rule of law, is not one that admits of a fixed or precise definition. However, one of its core ideas is the notion that the power of the State is vested in the various arms of government and that such power is subject to legal limits. But it would be meaningless to speak of power being limited were there no recourse to determine whether, how, and in what circumstances those limits had been exceeded. Under our system of government, which is based on the Westminster model, that task falls upon the Judiciary. Judges are entrusted with the task of ensuring that any exercise of state power is done within legal limits. In 2012, at the Rule of Law Symposium that was held in Singapore, Prof Brian Z Tamanaha observed that judges have the specific task of ensuring that the arms of government are held to the law, and in that sense, the ultimate responsibility for maintaining a system which abides by the rule of law lies with the Judiciary (“The History and Elements of the Rule of Law” [2012] SJLS 232 at p 244).

  4. [2] This is not new law. The underlying principle was aptly stated by Wee Chong Jin CJ almost three decades ago in Chng Suan Tze v Minister for Home Affairs and others and other appeals [1988] 2 SLR(R) 525 (“Chng Suan Tze”) at [86]:

  5. [3] In this appeal, Tan Seet Eng (“the Appellant”), who was detained on 2 October 2013, seeks an Order for Review of Detention (“ORD”) pursuant to O 54 r 1 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the ROC”). He was detained under s 30 of the Criminal Law (Temporary Provisions) Act (Cap 67, 2000 Rev Ed) (“the CLTPA”), which permits the Minister for Home Affairs (“the Minister”) to detain without trial a person who has been associated with activities of a criminal nature for a period of not more than a year if the Minister deems it necessary in the interests of public safety, peace and good order. This, however, is subject to the consent of the Public Prosecutor.

  6. [4] The Appellant’s application for an ORD was opposed by the Attorney-General (“the Respondent”). It was heard by a High Court judge (“the Judge”) on 19 November 2014 and dismissed on the same day. The Judge’s decision is reported as Tan Seet Eng v Attorney-General [2015] 2 SLR 453 (“the GD”), and the present appeal is brought against that decision.

  7. [5] We reserved judgment after hearing the parties’ submissions and, in this judgment, we set out our decision and the reasons for it. This case is of course important for the Appellant individually as he has been detained without trial. But it is also important for society as a whole because here we set out:

  8. (a) what the limits of the Executive’s power under s 30 of the CLTPA are;

  9. (b) what approach the court should adopt when hearing ORD applications; and

  10. (c) how the court should carry out its constitutional responsibility in assessing whether the Executive has properly exercised its powers under the CLTPA.

  11. The facts

  12. [6] On 16 September 2013, the Appellant was arrested for allegedly being involved in global football match-fixing activities (the GD at [3]). On the same day, he was also required to furnish a statement under s 27 of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“the PCA”). Assistant Superintendent Ho Kah King Joseph (“ASP Ho”), an officer from the Commercial Affairs Department (“CAD”), is said to have recorded this statement. ASP Ho also recorded statements from the Appellant on the second and third days of his arrest. On 18 September 2013, and within 48 hours of his initial arrest, the Appellant was re-arrested by ASP Ho under s 44(1) of the CLTPA and detained for a further 48 hours under s 44(2) (the GD at [4]). On 20 September 2013, and before the 48-hour detention period permitted under s 44(2) of the CLTPA expired, the Appellant was detained for a further period of 14 days under s 44(3) of the CLTPA.

  13. [7] On 27 September 2013, an ORD application was made by the Appellant’s lawyers on his behalf. This application was withdrawn on 4 October 2013 (the GD at [5]).

  14. [8] On 2 October 2013, the Minister issued and served an order under s 30 of the CLTPA on the Appellant, requiring his detention for a period of 12 months starting from that day (the GD at [6]). The basis for the detention was the Minister’s satisfaction that the Appellant had been associated with activities of a criminal nature and that his detention was necessary in the interests of public safety, peace and good order. The grounds of detention issued with the order stated that between 2009 and 2013, the Appellant had been the leader and financer of a global football match-fixing syndicate operating from Singapore, which fixed football matches in many parts of the world. The grounds of detention also furnished the following particulars of his football match-fixing activities:

  15. (a) the Appellant recruited runners in Singapore and directed match-fixing agents and runners from Singapore to assist in fixing football matches between 2009 and September 2013;

  16. (b) the Appellant financed and assisted with match-fixing activities in Egypt between September and December 2010 by providing a contact for a corrupt referee;

  17. (c) the Appellant financed football match-fixing activities in South Africa in May 2010;

  18. (d) the Appellant directed and financed football match-fixing activities in Nigeria in June 2011;

  19. (e) the Appellant financed football match-fixing activities in Turkey in February 2011; and

  20. (f) the Appellant assisted with attempted football match-fixing activities in Trinidad and Tobago in mid-2011 by sending a match-fixing agent to provide support to another match-fixing agent in relation to match-fixing activities.

  21. [9] In respect of each of the foregoing particulars, neither the number of runners recruited nor the matches fixed were specified. Nor were any particulars given as to the activities said to have been committed between mid-2011, the time of the latest particularised allegations above, and 2013, the time until when, it was alleged, the Appellant was the leader and financer of a global match-fixing syndicate.

  22. [10] A two-day hearing before the Criminal Law Advisory Committee took place on 17 October 2013 and 5 November 2013 (the GD at [7]). The Appellant was legally represented at those proceedings and his lawyers made submissions on his behalf. On 5 November 2013, the advisory committee submitted its written report with its recommendations to the President in accordance with s 31(2) of the CLTPA. The President confirmed the detention order in accordance with s 31(3) of the CLTPA on 7 April 2014, and the Appellant’s lawyers were informed of the President’s decision by a letter dated 8 April 2014 (the GD at [8]). The advisory committee’s report is not available to us. In any case, it is a body that performs only an advisory function and has no decision-making powers.

  23. [11] The Appellant’s lawyers wrote to the Criminal Law Advisory Committee (Review) on 23 September 2014, requesting that it consider releasing the Appellant unconditionally or placing him under police supervision instead (the GD at [9]). The review committee replied on 29 September 2014, stating that it had reviewed the matter and submitted a report to the President. The President, after considering the matter, then extended the Appellant’s detention order for a period of one year with effect from 2 October 2014, with reference to the review committee’s report and on the advice of the Cabinet. The review committee’s report was also not available to us.

  24. The decision below

  25. [12] In the court below, the Appellant made submissions on four issues. We will set out in brief each of these submissions together with the Judge’s holding thereon. First, the Appellant submitted that both the Minister’s and the President’s decisions to issue and confirm the detention order could be reviewed on the grounds of illegality, irrationality and procedural impropriety (the GD at [11]–[16]). The Respondent accepted that both decisions were susceptible to review, but took the view that, at least as far as the Judge was concerned, the applicable test was set down in Kamal Jit Singh v Ministry of Home Affairs and others [1992] 3 SLR(R) 352 (“Kamal Jit Singh”) where it was held that the applicant had to show probable cause that the detention was unlawful (the GD at [17]). The Respondent submitted that since Kamal Jit Singh was a decision of the Court of Appeal concerning s 30 of the CLTPA, the High Court was bound by it (the GD at [21]). The Judge held that the Appellant bore the burden of showing probable cause that the detention was unlawful on the grounds of illegality, irrationality or procedural impropriety, while the detaining authority bore the burden of establishing that the detention was lawful (the GD at [28]).

  26. [13] Second, the Appellant submitted that his detention was “illegal” on one or more of the following grounds: (a) the activities undertaken by the Appellant did not fall within the category of offences contemplated by the CLTPA; (b) the CLTPA was to be used as a measure of last resort and the Appellant should not have been detained since he could have been charged for other offences such as illegal betting for which evidence existed; (c) the CLTPA was not intended to target organised crime or criminal syndicates just because they were such; and (d) the alleged criminal activities had occurred outside of Singapore and had no impact on public safety, peace and good order in Singapore (the GD at [30]–[44]). The Judge rejected the argument on illegality and held that: (a) there was nothing to show that the CLTPA only applied to offences which caused “physical violence or harm to society”; (b) it was not for the court to determine whether a detainee ought to have been tried rather than detained and, in any case, the fact that there was sufficient evidence to prosecute the detainee for a lesser or some other offence did not mean that the CLTPA could not be invoked to address other criminal activities that the detainee was involved in; (c) the scope of “public safety, peace and good order” was a wide one; and (d) the Appellant was the leader and financer of a global football match-fixing syndicate operating from Singapore and involved in various supporting activities in Singapore, and he had not shown that the criminal activities he was allegedly involved in did not have an impact on the public safety, peace and good order in Singapore (the GD at [35], [40], [43] and [47]).

  27. [14] Third, the Appellant submitted that the detention was “irrational” (the GD at [48]). The Judge rejected this argument on the basis that the threshold for judicial intervention on the ground of irrationality was a high one, and it applied only when a decision was so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at that decision. The standard was not met in this case because there were at least some objective grounds for ordering the initial and continued detention of the Appellant since he had some involvement in the criminal activities relied upon by the authorities to found his detention (the GD at [50]).

  28. [15] Fourth, the Appellant submitted that the detention was procedurally improper because ASP Ho, who was an officer from the CAD rather than from the Corrupt Practices Investigation Bureau (“the CPIB”), had taken the Appellant’s statements (the GD at [51]). The Appellant contended that this was contrary to s 27 of the PCA which provides as follows:

  29. [16] The Appellant argued that the reference to “officer” in s 27 was to a CPIB officer and the statement was inadmissible in court as a result of such non-conformity with the provision. It therefore could not be relied upon by the Minister or the President when considering the Appellant’s detention. The Judge rejected this submission, holding that there was nothing in the CLTPA which suggested that the Minister, the Criminal Law Advisory Committee, or even the President, when exercising their respective functions were confined to considering only evidence that was admissible in court (the GD at [52]). This was reinforced by r 13 of the Criminal Law (Advisory Committees) Rules (Cap 67, R 1, 1990 Rev Ed) (“CLACR”) which provides:

  30. The Judge therefore held that there was nothing procedurally improper in the relevant authorities considering the statements taken by ASP Ho.

  31. The issues raised in this appeal

  32. [18] The Appellant’s case in short is that the Judge erred on all four issues, while the Respondent’s case is that although there are issues to be settled in respect of the appropriate approach the court should take towards an ORD application, the Judge was, in any event, correct to not grant the ORD. In our judgment, there are two broad issues that arise for our decision as follows:

  33. (a) What is the appropriate approach the court should adopt when dealing with ORD applications?

  34. (b) Is the Appellant’s detention lawful taking the appropriate approach?

  35. We will address them in turn, and set out the positions of the parties before giving our decision in respect of each issue.

  36. [19] Before we come to those two issues, however, we should first mention Summons No 263 of 2015 (“SUM 263/2015”), which was the Appellant’s application to be present at the hearing of the appeal. That application was heard and allowed by Chao Hick Tin JA on 21 July 2015, which was several days before the substantive appeal was heard on 27 July 2015. We will first address, as a preliminary issue, why Chao JA allowed the Appellant’s application to be present at the hearing of the appeal, before turning to the two substantive issues that we have set out above.

  37. The preliminary issue: the Appellant’s application to be present at the hearing of the appeal

  38. [20] Order 54 r 4(2) of the ROC provides that a detainee need not be brought before the court for the hearing of an ORD application unless otherwise directed by the judge who is hearing the application. The provision states as follows:

  39. By SUM 263/2015, the Appellant sought an order directing that he be produced for the hearing of this appeal. We will first explain the procedure for applications under O 54 of the ROC and how it came to be. We will thereafter examine the approach in England and India before coming to our reasons.

  40. The procedure under O 54 of the ROC and its historic origins

  41. [21] Order 54 of the ROC prescribes the procedure for ORD applications concerning CLTPA detentions. A two-stage procedure is envisaged. The first consists of an ex parte leave hearing, and the second, a full merits hearing involving persons on whom the court directs the application to be served. Singapore Civil Procedure 2015 vol 1 (G P Selvam, gen ed) (Sweet & Maxwell, 2015) notes (at para 54/1/4) as follows:

  42. [22] However, it is apparent that the two-stage procedure may be departed from in appropriate circumstances. Order 54 rr 2 and 4 of the ROC provide:

  43. [23] The ORD was formerly known as the writ of habeas corpus, the great prerogative writ. This terminology was updated by s 41B of the Statutes (Miscellaneous Amendments) (No 2) Act 2005 (No 42 of 2005), when it was renamed the “Order for Review of Detention”. A good conspectus of the development of the writ of habeas corpus can be found in Judith Farbey & R J Sharpe with Simon Atrill, The Law of Habeas Corpus (Oxford University Press, 3rd Ed, 2011) (“The Law of Habeas Corpus”) and a summary of this account follows:

  44. (a) By the early part of the 13th century, the words habeas corpus were used in civil procedure to refer to a command issued as part of the interlocutory process to have a defendant physically appear before the court. Its purpose was to order the relevant officer to physically produce the defendant in court, and was not originally concerned with subjecting detentions of persons to the court’s scrutiny (at p 2).

  45. (b) In the course of the 15th and 16th centuries, the writ of habeas corpus evolved from being a writ merely to secure the presence of a defendant in court to one that demanded the reason or an explanation for an applicant’s detention so that the sufficiency of such reason or explanation could be adjudged (at p 4).

  46. (c) By the time of Queen Elizabeth I, the writ was used for testing the validity of executive committals (at p 6). Later in 1627, the writ was used to challenge the decision of Charles I to detain a number of his subjects who had refused to contribute to a forced loan designed to raise revenue without parliamentary sanction. This development led to the passage of the Petition of Right, which set out liberties that the King was precluded from infringing (at pp 8–9). Amongst them was that no free person could be detained arbitrarily (at p 11). After the English Civil War in the mid-17th century, it became accepted that the Petition of Right deprived the Executive of power to detain a person solely for reasons of state unless emergency legislation granted it such power (at p 12).

  47. (d) In 1640, the Habeas Corpus Act 1640 (16 Car 1 c 10) was passed and provided that anyone imprisoned by order of the King or the Privy Council should have the right to seek habeas corpus and be brought before the court without delay whereupon the cause for the imprisonment would have to be shown. Within three days of the detainee being produced, the judges were required to pronounce on the legality of the detention and to grant bail to, discharge or remand the detainee (at p 13). The Habeas Corpus Act 1679 (31 Cha 2 c 2) (UK) was subsequently passed with a view to ensuring that procedural inadequacies did not stand in the way of prisoners obtaining the relief to which they were entitled. This latter Act sought to ensure that the writ was available at any time of the year from any court at Westminster; that the jailer obeyed the writ immediately; that judges would speedily decide the legality of the detention; and that the prisoner would not be re-detained if released. Prisoners were also not to be moved from prison to prison without proper authority, or taken to places beyond the reach of the writ (at p 16).

  48. (e) In 1758, Wilmot CJ rendered his “Opinion on the Writ of Habeas Corpus” (1758) Wilm 77 (“Wilmot’s Opinion”) to the House of Lords at the second reading of the bill titled “An Act for giving a more Speedy Remedy to the Subject, upon the Writ of Habeas Corpus”. In it, he explained the two-stage procedure which had developed for obtaining the writ of habeas corpus (see Law of Habeas Corpus at p 236 for a short summary of how this had developed). This is the foundation of the modern procedure for obtaining an ORD, and it is as follows:

  49. (i) a detainee would have to show by affidavit probable cause that he was wrongfully detained (at 82); and

  50. (ii) upon showing probable cause, the writ of habeas corpus would be issued so that a review of the detention could be carried out (at 92).

  51. [24] This procedure was designed to prevent the writ of habeas corpus from being used as an instrument of vexation and oppression against the authorities. Wilmot CJ wrote (at 90 and 92):

  52. [25] Over time, the writ came to acquire a dual functional meaning, and was said to be “issued” by the courts either to bring the detainee to court for a substantive review of the legality of the detention or for the detainee to be released after a substantive decision had been reached (Hia Soo Gan Benson v Public Prosecutor and other matters [2013] 4 SLR 57 at [42]).

  53. [26] Returning to the narrative on the applicable procedure, our rules are based on and similar to the rules that are currently in force in England. There habeas corpus applications are brought under what was formerly O 54 of English Rules of Supreme Court, which is now found in Schedule 1 to the English Civil Procedure Rules. These provisions are substantially similar to O 54 of the ROC. Under the English rules, an application is first brought without notice to a judge to enable the court to determine whether the matter has sufficient merit to warrant a full hearing (The Law of Habeas Corpus at p 233). At this stage, all that needs to be raised is a doubt in the judge’s mind as to the validity or lawfulness of the detention or, to put it another way, an arguable case which deserves further consideration. However, as noted by Grahame Aldous & John Alder, Applications for Judicial Review: Law and Practice of the Crown Office (Butterworths, 2nd Ed, 1993) at pp 192–193, the two-stage procedure can be compressed into a single stage especially if considerations of urgency are at play.

  54. [27] Historically, therefore, the detainee was not allowed to attend the hearing of his application. This might seem sensible in the context of a preliminary hearing that is directed only at establishing whether an actual hearing on the merits would be required at all. But to the extent that the practice extended even to the second stage where the merits were dealt with, it seems to be the case that this emerged mainly out of concerns of administrative convenience. In our judgment, this position, which might continue to hold sway in other jurisdictions, was premised on historical factors which should not continue to apply in modern-day Singapore. To explain this, we briefly survey the position in England and India.

  55. England

  56. [28] As we have noted above, a detainee in England seeking to have the lawfulness of his detention reviewed was not allowed to attend the hearing of his application. This was established in In Re Greene (1941) 57 TLR 533 (“Re Greene”), where the King’s Bench Division of the English High Court cited with approval the following statement in Frederick Hugh Short & Francis Hamilton Mellor KC, The Practice on the Crown Side of the King’s Bench Division (Stevens and Haynes, 2nd Ed, 1908) (“The Practice of the Crown Office”) at p 321:

  57. [29] But when this is examined further, it becomes evident that this was premised on historical reasons that centred on administrative inconvenience. In this light, it is significant that The Practice of the Crown Office states as follows (at p 320):

  58. [30] Thus the order nisi was a preliminary step that did not require that the detainee be physically produced until and unless cause had been shown and the order had been made absolute. And the reason for this was that it would be administratively inconvenient and expensive to have the detainee produced in court when the application might well be dismissed.

  59. India

  60. [31] The position in India is similar. The matter was considered at some length in Kanu Sanyal v District Magistrate, Darjeeling and Ors [1974] 1 SCR 621 (“Kanu Sanyal”). There too the court noted that the reason for the rule was a practical one (at [4]–[5]):

  61. [32] Kanu Sanyal explains that even at the substantive hearing, the practice was to dispense with the physical attendance of the prisoner. This was so because the real object of the writ was to secure the release of the prisoner and this could be achieved even without his being physically present in court.

  62. [33] It is evident from this brief account that the rationale for the rule that detainees are not entitled to attend ORD application hearings is a historical one directed at saving the prison authorities the trouble and the inconvenience of bringing a detainee to court, often from a distance. Otherwise, if the court were to rule that the detention is lawful, the detainee would then have to be returned to the place of detention. On the other hand, there was no need for the detainee to be present in order for the court’s jurisdiction to be invoked, and if the court held the detention was unlawful, the detainee could just as easily be freed from the detention facility. This might all have made sense at a time when or in a place where transporting a prisoner involved much difficulty or great distances and entailed complicated security arrangements. However these conditions do not exist in modern Singapore at least, and account ought to be taken of these differences when referring to these older or foreign decisions. Against this backdrop, we turn to consider the submissions the parties made on this preliminary issue.

  63. The parties’ submissions

  64. [34] The Appellant relied on Jeffrey Pinsler, Singapore Court Practice 2014 vol 1 (LexisNexis, 2014) at para 38/21/3 where it is said that the paramount consideration in a context such as this would be whether the detainee has relevant information to give to the court. The Appellant submitted that he should be allowed to attend the proceedings because:

  65. (a) The case concerned his detention without trial and was quasi-criminal, involving a significant curtailment of his fundamental liberties. The paramount consideration in this case had to be that justice was seen to be done, and the starting point must be that the detainee should be allowed to attend the hearing of his own application unless there were circumstances that militated against it, such as security considerations, inordinate expense or prejudice to the opposing party. There was no evidence of any of this in the present case. Moreover, he had even undertaken to bear the cost of his being transported to the court.

  66. (b) Unlike the majority of cases where a person was detained on account of matters that were unrelated to the hearing for which he was applying to be present in court, (such as where a prisoner was convicted of and in prison for a crime sought to attend court to deal with a separate suit for breach of contract), his detention formed the very subject-matter of the hearing which he was applying to attend.

  67. (c) Allowing his attendance would be consistent with the right accorded to him (indeed the obligation imposed on him) to attend the advisory committee hearing as provided for under s 7A of the CLACR.

  68. [35] The Applicant therefore sought to be present in court to provide contemporaneous confirmation of his instructions and clarifications in the event that any new facts or matters arose so as to ensure that he was not prejudiced and also, so that he could listen to the arguments made and the court’s determination. In this way, he submitted, justice would be seen to be done.

  69. [36] As against this, the Respondent submitted that the application should be denied because:

  70. (a) It was the Appellant’s burden to show why his attendance was required and his mere wish to attend was, in itself, insufficient. As all the matters relevant to the appeal had been placed before the court and copies of the materials had been made available to the Appellant and his lawyers, his presence was not required at the hearing.

  71. (b) Should new matters arise in the course of the hearing, the Appellant could be contacted and a further affidavit or short adjournment be granted; there was no requirement for him to be available to give contemporaneous instructions.

  72. (c) Under O 54 r 1 of the ROC, an ORD application had to be made by way of originating summons supported by affidavit. Each affidavit had to be served on every other party, and the very reason for this was so that the parties would not be caught by surprise in relation to any allegations raised. It would also be inappropriate to circumvent the rules governing the appeal and for new facts to be received by way of the Appellant’s contemporaneous instructions at the hearing given that, under O 28 r 3 of the ROC, leave is needed for further affidavits to be received into evidence.

  73. (d) As one of the very purposes of the Appellant’s appeal was for him to be brought to court for a substantive review of the legality of his detention, he would effectively be obtaining the very remedy he sought in the substantive appeal if we ordered that he be present.

  74. Our decision

  75. [37] We allowed the Appellant’s application for three essential reasons. First, as a matter of principle, it seems incongruous that an accused person who has been charged with and is being tried for criminal offences generally has a right to be present at his trial and also at any appeal thereafter, even if he is not giving evidence (see, eg, ss 230, 298 and 387 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) and also R v Jones [1991] Crim LR 856 at [24] where the English Court of Appeal referred to the accused’s right to be present at his trial and put forward his defence), while a person who has been detained on an executive order may not attend a hearing at which his own liberty is at stake. In our judgment, there is no principled basis for this difference, especially in the absence of exceptional reasons such as those pertaining to security or public safety. Instead, allowing the Appellant to attend the hearing would enable him to see the points which are being made by both sides and provide information or instructions to his counsel where it is necessary for him to do so. It also seems incongruous to us that a detainee who managed to obtain legal representation should not be allowed to attend the hearing, when a detainee who did not manage to do so would generally be allowed to be present, at least to enable him to present his case.

  76. [38] Second, as earlier mentioned, the historical basis for holding that a detainee has no right to be present in court for these proceedings no longer exists today. The Appellant has been detained at the Changi Prison Complex, Cluster A. This is the same place where most accused persons are placed when they are in remand. There is nothing to suggest it would be administratively more difficult to produce the detainee in court than other accused persons who are routinely brought to court from the same premises for trial.

  77. [39] Third, it is not correct that allowing the Appellant to attend the hearing would effectively be granting him the very remedy that he sought. The real remedy he seeks is his unconditional release.

  78. [40] It is for these reasons, with which the other members of this court are in agreement, that Chao JA granted the Appellant’s application and directed that he could attend the hearing of his appeal. We now turn to the issues raised in the substantive application.

  79. Issue 1: What is the appropriate approach the court should adopt when dealing with ORD applications?

  80. The parties’ submissions

  81. [41] The Appellant submits that the court should approach an ORD application objectively. He submits that there must be facts which support on an objective basis the initial and continued detention of the Appellant.

  82. [42] The Respondent disagrees for three main reasons. First, the Respondent submits that the Appellant’s reliance on the objective test conflates the issue of reviewability with the issue of the scope of review. In Chng Suan Tze, where we held that a court tasked with reviewing the lawfulness of executive action does so on an objective basis, all that was in fact decided was that the President’s discretion under s 8 of the Internal Security Act (Cap 143, 1985 Rev Ed) (“the ISA”) was reviewable, but this was not concerned with the scope of review, which the Respondent contends is the pertinent issue in this case. We elaborate on this below.

  83. [43] Second, the Respondent submits that the court can only look at the sufficiency of evidence in an ORD application in relation to a precedent fact, namely a fact, the existence of which, determines whether a power vested in the Executive may be exercised (see Ng Swee Lang and another v Sassoon Samuel Bernard and others [2008] 2 SLR(R) 597 at [29], citing Mak Sik Kwong v Minister for Home Affairs, Malaysia (No 2) [1975] 2 MLJ 175 at 177 and Regina v Secretary of State for the Home Department, ex parte Khawaja [1984] 1 AC 74 (“Khawaja”) at 97, 99 and 108). Section 30 of the CLTPA is similar to s 8 of the ISA as it entrusts the assessment of whether the detention is necessary to the Minister. Because the application in the present case does not concern a precedent fact, there is no basis for inquiring into the sufficiency of evidence.

  84. [44] Third, the Respondent submits that there are two different approaches which have been adopted by the Court of Appeal in ORD applications, namely, (a) whether the applicant can impugn the decision on the usual judicial review principles of illegality, irrationality and procedural impropriety as set out in Chng Suan Tze at [119] (which we refer to as “the Traditional Test”); or (b) whether the applicant can show probable cause that his detention was unlawful as set out in Kamal Jit Singh at [28]–[29] (which we refer to as “the Probable Cause Test”). The Respondent considers that the Judge’s holding at [28] of the GD might have developed a hybrid approach that combined both the Traditional and Probable Cause Tests and submits that the Judge must have meant that in order to show probable cause, an applicant has to show that his detention is unlawful by reference to the Traditional Test.

  85. [45] In light of this, the Respondent invites us to restate the test of reviewability in relation to ORD applications and submits that the Traditional Test should be preferred because:

  86. (a) it is practical, defined and well-tested, unlike the Probable Cause Test;

  87. (b) the differences between judicial review and ORD proceedings are insufficient to justify a different test being adopted for ORD proceedings; and

  88. (c) as a matter of historical development, the Probable Cause Test has given way to a convergence of tests between judicial review and ORD proceedings.

  89. Our decision

  90. [46] In our judgment, to address this issue, there are three sub-issues that we must address:

  91. (a) what is the relevance of precedent facts;

  92. (b) whether the court’s inquiry into the decision-maker’s decision is objective or subjective; and

  93. (c) what is the appropriate scope of the review.

  94. We take them in turn.

  95. What is the relevance of precedent facts?

  96. [47] It will be helpful to begin with a brief observation as to the nature of judicial review. In the normal course of events, all controversies, whether of fact or of law, are resolved by the courts. This work is done in accordance with the applicable rules of adjectival and substantive law, and it is the function of the courts to determine what the facts are and also to apply the relevant rules of substantive law to those facts. Judicial review concerns an area of law in which the courts review the lawfulness of acts undertaken by other branches of the government. Where these acts relate to the exercise of powers vested in such other branches, the court must approach this with due regard to the fact that the primary responsibility for the exercise of such a power has been vested elsewhere. This then raises the need to adjust the approach that the court will take in undertaking this task. Judicial review is distinct from ORD proceedings although, as in the present case, it often and substantially overlaps with the inquiry that is undertaken in such proceedings where the detention in question is the result of the exercise of a discretionary power by the Executive.

  97. [48] The question of the approach the court should take when undertaking judicial review of executive action was raised in the seminal decision of this court in Chng Suan Tze on which the submissions of both parties focused. There, four detainees were conditionally released after having been detained without trial on suspicion that they were involved in a Marxist conspiracy to overthrow the Government. After their initial release, they issued a joint press statement on 18 April 1988, claiming that the allegations against them were untrue (at [16]). Following the issuance of that statement, revocation orders were made against them on 19 April 1988, and the four were rearrested under s 10 of the ISA (at [17]). Their applications for writs of habeas corpus were refused by the High Court, and they appealed (at [24]).

  98. [49] Before the Court of Appeal, counsel were ad idem that in ORD applications, the initial burden was on the detaining authority to justify the legality of the detention. The question was whether the requirements of s 8 of the ISA, under which the President’s satisfaction as to the need for detention was a necessary pre-requisite to the issuance of a detention order, had been fulfilled (at [29]). The Court of Appeal found that the only evidence there was on the record to prove the fact of the President’s satisfaction was the set of recitals contained in the detention orders and an affidavit from the Permanent Secretary to the Minister for Home Affairs stating that the President was “satisfied”. This evidence was held to be inadmissible hearsay (at [31]). Wee CJ held that in order to prove the President’s satisfaction, evidence was required from any Cabinet Minister or the Secretary to the Cabinet that the President, on the advice of the Cabinet, was satisfied as to the matters stipulated (at [38]–[39]). Since this burden was undischarged, the detainees were released from custody (at [39]).

  99. [50] Wee CJ then addressed the issue of whether the President’s satisfaction could be presumed by the Latin maxim omnia esse rite acta (everything is presumed rightly and duly performed until the contrary is shown). He held that it could not. He distinguished Liversidge v Sir John Anderson and another [1942] AC 206 (“Liversidge”) and Greene v Secretary of State for Home Affairs [1942] AC 284 (“Greene”), both of which involved cases where the Secretary of State had exercised his discretion under reg 18B of the Defence (General) Regulations 1939 (SI 1939/927) (UK) to make a detention order against those whom the Secretary of State had reasonable cause to believe were of hostile association. Wee CJ observed that in those cases the person who made the detention orders was also the person whose belief had to be satisfied, and he went on to state (Chng Suan Tze at [36]):

  100. [51] Finally, Wee CJ addressed the issue of whether s 8(1) of the ISA concerned a precedent fact as the appellants had submitted that the President’s satisfaction under it was subject to an objective jurisdictional fact being established, ie, that the appellants were likely as a matter of fact to act or continue to act in a manner which was prejudicial to Singapore’s security (at [106]). This submission, which was based on Khawaja, was rejected by the Court of Appeal (at [106]–[107]).

  101. [52] We begin with a brief summary of Khawaja. There, the appellant had challenged the immigration authorities’ determination that he was an illegal immigrant on which basis they acted to detain him with a view to removing him from the jurisdiction under para 16(2) of Schedule 2 of the Immigration Act 1971 (c 77) (UK). The House of Lords held that the power that was vested in the immigration authorities to detain and summarily remove a person depended upon the precedent fact being established that the person was in fact an illegal immigrant. As to the establishment of that fact, the court had to be satisfied that there was sufficient evidence to justify the conclusion that the person was an illegal immigrant and, for this purpose, the facts relied on had to be proved on a balance of probabilities (see Khawaja at 97, 105, 123, 124 and 128).

  102. [53] Chng Suan Tze held as follows:

  103. (a) Khawaja was justified because the “illegal entrant” requirement was seen as a precedent fact to the authorities’ power to detain and remove the appellant (at [107]).

  104. (b) The House of Lords in Khawaja held that the nature of a court’s role in judicial review depended on whether precedent facts were involved. Where no such facts were in issue, the scope of review was limited to what were referred to as Wednesbury principles. This is derived from the decision of the English Court of Appeal in Associated Provincial Picture Houses, Limited v Wednesbury Corporation [1948] 1 KB 223 (“Wednesbury”). We elaborate on this later. But where precedent facts were involved, the scope of review extended to deciding whether the evidence established those facts (at [108]).

  105. (c) Whether a discretionary power was subject to any precedent fact depended on the construction of the legislation conferring that power (at [108]).

  106. (d) Discretionary powers may be subject to the requirement that they be exercised based on facts that were determined pursuant to a judicial process but Parliament could entrust all the relevant decisions including as to the determination of the facts as well as their application to the rules and any exercise of discretion to some other decision-maker. This was so even if the liberty of the subject was concerned and when this was the case, the scope of review would be limited to the traditional principles governing judicial review, including those set out in Wednesbury (at [108]).

  107. (e) The President’s discretion under s 8(1) of the ISA and the Minister’s discretion under s 10 of the ISA fell outside the “precedent fact category” as s 8(1) stated expressly that it was for the President to be satisfied that detention was necessary in order to prevent a detainee from acting prejudicially to national security and s 10 gave the Minister the power to make revocation orders where the public interest so necessitated (at [117]).

  108. [54] It was not suggested to us that the foregoing analysis in Chng Suan Tze, including its acceptance of the position that Parliament could delegate fact-finding powers to some other branch than the Judiciary, was incorrect and we therefore do not examine this issue here. In the present case, s 30 of the CLTPA requires that the Minister be satisfied that the person’s detention would be in the interests of public safety, peace and good order, and that he acts with the Public Prosecutor’s consent. Whether this power falls within the “precedent fact category” and is subject to the “precedent fact principle of review” would depend on the construction of the relevant provision. Chng Suan Tze held (at [116]):

  109. [55] In our judgment, s 30 of the CLTPA is similar to ss 8(1) and 10 of the ISA in that power has been given to the Minister to make the decision as to whether the detention would be in the interests of public safety, peace and good order. If there is a precedent fact, it is that the consent of the Public Prosecutor is required before the Minister may exercise his discretion. The Appellant’s counsel confirmed before the Judge that the processes under the CLTPA had been complied with and there was no indication that they were changing their position on appeal. There is therefore no issue arising from this. In the circumstances, because Parliament has conferred on the Minister the power to make the decision if he is satisfied it is called for, no question as to the existence or non-existence of a precedent fact arises.

  110. What is the nature of the inquiry when reviewing the Minister’s discretion?

  111. [56] The next question that arises is whether the nature of the inquiry into the Minister’s exercise of his discretion is a subjective or an objective one. The former is limited to such things as whether the Minister (subjectively) did in fact believe he had the power and whether he did in fact believe he was acting within the scope of that power. The latter, on the other hand, raises questions as to whether the Minister did in fact have the power to act and whether there is a reasonable basis for thinking that he was so acting.

  112. [57] A similar question arose under the CLTPA’s predecessor statute, the Criminal Law (Temporary Provisions) Ordinance 1955 (Ord 26 of 1955) (“the 1955 Ordinance”) and was considered by the High Court in Re Ong Yew Teck [1960] MLJ 67 (“Ong Yew Teck”). There, the detainee applied for a writ of habeas corpus and contended that s 55(1) of the 1955 Ordinance laid down an objective test, thus allowing the court to examine whether there were sufficient reasons for his detention (at 68). Chua J disagreed. He held that s 53 of the 1955 Ordinance precluded the Chief Secretary or any other public servant from disclosing facts if it was against the public interest to do so. Since the court required all the material evidence before it to decide on an objective basis whether the detaining authority had “reason to believe there are grounds which would justify the detention” of the detainee, and the detaining authority could not be required to set out the grounds of his belief or give information which led to him forming his opinion, Chua J held that a subjective test applied in reviewing the decision and declined to go behind the detaining authority’s statement of belief in the reasons justifying the detainee’s detention (at 69).

  113. [58] The next case to consider this issue was Suffian FJ’s decision in Karam Singh v Menteri Hal Ewal Dalam Negeri (Minister of Home Affairs), Malaysia [1969] 2 MLJ 129 (“Karam Singh”). The detainee had been detained under s 8(1) of the Internal Security Act 1960 (Act 82 of 1960) (M’sia) (“the Malaysian ISA”) and challenged his detention on the basis that the grounds for his detention were too vague. Suffian FJ held (at 150):

  114. [59] Karam Singh therefore also applied the subjective test, and this was then referred to and followed in Lee Mau Seng v Minister for Home Affairs and another [1971–1973] SLR(R) 135 (“Lee Mau Seng”) where the detainee was detained under s 8(1) of the ISA. Wee CJ held (at [53]–[54]):

  115. [60] This position remained the law until the Court of Appeal departed from it in Chng Suan Tze. There, this court held that an objective standard of review applied to the Minister’s exercise of discretion (at [55]). The reasons for the departure from the previous line of cases may be summarised as follows:

  116. (a) Karam Singh had applied Liversidge and Greene, from which the House of Lords had in recent years departed (at [56]). In Lau Seng Poh v Controller of Immigration [1985–1986] SLR(R) 180, the High Court had expressed doubt over the majority’s decision in Liversidge (Chng Suan Tze at [64]). The more recent Malaysian cases also seemed to have moved away from a strict adherence to the subjective test (Chng Suan Tze at [65]).

  117. (b) Judicial decisions in other jurisdictions held that the exercise of discretion by the Executive could be objectively reviewed in the context of preventive detention on national grounds (Chng Suan Tze at [70]).

  118. (c) If the discretion in ss 8 and 10 of the ISA was subjective, arbitrary detention would be permitted. This was inconsistent with Art 12(1) of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) (Chng Suan Tze at [82]).

  119. (d) The Privy Council held in Teh Cheng Poh alias Char Meh v Public Prosecutor, Malaysia [1980] AC 458 that the discretion of the Yang di-Pertuan Agong under s 47 of the Malaysian ISA (which is almost identical to s 48 of the ISA) could be objectively reviewed (Chng Suan Tze at [83]).

  120. [61] Of these, we highlight the point which we have referred to at [60(c))] above. This court in Chng Suan Tze was undoubtedly conscious of the difficulty with adopting a purely subjective analysis because, in practical terms, it would result in the court being bound to accept whatever was put before it. It is in this context that the court equated the adoption of a purely subjective analysis to endorsing the possibility of arbitrary detention, and the court therefore rejected the subjective test on this basis. In any event, it follows from Chng Suan Tze that the Minister’s discretion is to be reviewed objectively. This is the latest statement of the law and neither party has suggested we should depart from it.

  121. What is the appropriate scope of review?

  122. [62] If the court’s review of the Minister’s discretion is to be undertaken as an objective exercise, what then is the appropriate scope of review? There are two aspects to this. First, some uncertainty arises by reason of the court’s remarks in Chng Suan Tze pertaining to the scope of review for ISA detentions, which suggest that the Traditional Test (ie, the usual grounds of judicial review – illegality, irrationality or procedural impropriety) is the correct one; while on the other hand, Kamal Jit Singh, a case on all fours with the present, was decided on the basis of the Probable Cause Test. In our judgment, the correct test is the Traditional Test.

  123. [63] We start with the Court of Appeal’s remarks pertaining to the scope of review for ISA detentions in Chng Suan Tze (at [103]–[121]). We have summarised that part of the court’s decision at [53] above. The essential point for present purposes is the court’s holding that where no precedent facts are involved, the scope of review will be limited to the usual ambit of judicial review, namely, illegality, irrationality and procedural impropriety.

  124. [64] This is at the heart of what is meant by the “scope of review”. Chng Suan Tze accepts that Parliament may decide to entrust the power and the responsibility to make a decision to a particular decision-maker. This may extend to decisions as to what the facts are, the application of those facts to the relevant rules or considerations, and any consequential exercise of discretion. As we have noted at [54] above, we have proceeded on the basis that this statement is correct since nothing to the contrary was put to us. To this extent and on this basis, decisions such as Ong Yew Teck may be understood as being justified because what was sought there was a review (in effect an appeal) of the sufficiency of the evidence for the facts. The court found in that case that that responsibility to determine the evidential sufficiency had been entrusted to Executive. As we have noted, in such settings which are outside the ambit of precedent or jurisdictional facts, the courts cannot inquire into the evidential basis for the facts found by the Executive. But the court even in such circumstances retains the duty to review objectively the decisions of the Executive, though the scope of such review is limited to the normal principles of judicial review on the basis of the facts established by the Executive (see at [116]–[119]).

  125. [65] On the basis of Chng Suan Tze, and given the similar threshold which the Minister has to meet under s 30 of the CLTPA, it would seem to follow that any review of the Minister’s discretion under the CLTPA should in principle rest on what we have referred to as the Traditional Test. However, the matter is complicated only because in Kamal Jit Singh, a Court of Appeal decision which concerned the very section of the CLTPA with which the present case is concerned, a different test seemed to have been applied. Before the Judge, the Respondent took the position that the Probable Cause Test enunciated in Kamal Jit Singh is different from the Traditional Test and submitted that the Judge was bound to apply the Probable Cause Test.

  126. [66] This much may have been true because Kamal Jit Singh is a Court of Appeal decision on s 30 of the CLTPA, and the High Court was therefore bound by it. However, we are not bound in the same way and in our judgment, the Probable Cause Test is the wrong test in this context. Instead, the Traditional Test is that which should be applied and we hold this view for several reasons.

  127. [67] First, history supports the application of the Traditional Test. We are inclined to agree with the Respondent’s suggestion that the Probable Cause Test might have stemmed from a failure to appreciate a historical difference between habeas corpus and judicial review proceedings. It is true, as noted in The Law of Habeas Corpus at p 18, that the scope of review for ORD applications depends largely on the general concept of judicial review, which in broad terms refers to the supervisory jurisdiction of the High Court to ensure that those holding Executive powers act lawfully and within the scope of their powers. But this is so because in the modern context when ORD applications are brought, they generally pertain to the lawfulness of detentions that are effected in the exercise of Executive powers.

  128. [68] Kamal Jit Singh relied on Wilmot’s Opinion as the basis on which it seemed to adopt the Probable Cause Test (at [28]). In our judgment, what this in fact means is that the applicant has the obligation to raise a prima facie case as to the legality of his detention to warrant a substantive inquiry into the matter. We base this on a closer analysis of Wilmot’s Opinion which, as we have noted above, was an opinion rendered by Wilmot CJ to the House of Lords in 1758 on the second reading of the bill entitled “An Act for giving a more Speedy Remedy to the Subject, upon the Writ of Habeas Corpus”. The relevant parts of Wilmot’s Opinion (at 88 and 92) are reproduced:

  129. [69] To like effect, Lord Goddard CJ held in In re Corke [1954] 1 WLR 899 at 899:

  130. [70] This harks back to the two-stage procedure we alluded to at [21] above when reviewing whether the applicant should be excluded from the hearing of his application. The writ of habeas corpus has commonly been understood as a powerful weapon against oppression. The extract we have cited from Wilmot’s Opinion above explains this: the writ itself is a command from the Crown against which no privilege or excuse can be raised, requiring that the subject be produced so that his imprisonment may be inquired into. This necessitates that some basis be shown for it before the writ is issued and that basis is shown by “probable cause”. This pertains, of course, to the first stage of the inquiry. In keeping with this analysis, it may be noted that in Khawaja, Lord Scarman observed that the initial burden on an applicant was to demonstrate that “he [had] a case fit to be considered by the court” (at 111). In a sense the Probable Cause Test is concerned with the burden that the applicant must discharge at the initial stage of an ORD application whereas the Traditional Test is concerned with the scope of judicial review or the subject matter the court can inquire into in circumstances where the primary decision-making power or responsibility has been vested in the Executive.

  131. [71] Second, consistency also weighs in favour of the Traditional Test. The Traditional Test was held in Chng Suan Tze to apply in relation to judicial review of executive action under ss 8 and 10 of the ISA. As far as we can see, there is no basis for thinking that a different test or approach should apply to detentions under the CLTPA.

  132. [72] Third, the Respondent before us accepted that we should restate the scope of judicial review in ORD applications in the context of CLTPA detentions in terms of the Traditional Test. The Respondent submitted that the Traditional Test is better defined. We agree the Traditional Test offers the appropriate guidance. We would also add a further point. The Probable Cause Test says nothing about how unlawfulness is to be established. This is the precise issue that is addressed with the Traditional Test.

  133. [73] In our judgment, some confusion has prevailed because of the failure to situate Wilmot’s Opinion in its proper context. That context as we have noted relates to the initial burden on the applicant for relief from alleged unlawful detention to establish probable cause that his detention is unlawful. Subsequent cases have held that probable cause is established by showing a prima facie case that his detention is unlawful. But this is separate and distinct from the question of the extent to which the court can inquire into unlawful detention. The correct scope of judicial review for this purpose, in the context of ORD applications concerned with detention under the CLTPA, is the Traditional Test. What an applicant must show is that his detention is unlawful on the grounds of illegality, irrationality or procedural impropriety. We add that in Chng Suan Tze, the court noted at [119] that “irrationality” referred to a decision that was unreasonable in the Wednesbury sense, meaning a decision that is so outrageous and in defiance of logic or accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it.

  134. [74] This leads us to the second of the two aspects we referred to at [62] above. The CLTPA vests a potentially draconian power in the Executive. “Public safety, peace and good order” can cover a wide spectrum of possible scenarios. As was pointed out in the course of the oral hearing, even relatively minor regulatory offences could in theory be said to go against public safety, peace and good order. It is true that Parliament has vested this power in the Minister and as we have already noted, we have proceeded on the basis that that is permissible; but as we have just observed, the exercise of the power can and will be scrutinised objectively based on the usual principles. Such scrutiny begins with the grounds provided by the Minister as the basis on which he has acted. In our judgment, the proper ambit of the task of the court in these matters may be stated as follows: the court is to closely scrutinise the grounds put forward by the Minister and consider objectively whether on the face of these grounds, the decision is open to challenge on the basis of illegality, irrationality, or procedural impropriety.

  135. [75] This is no more than what was done in Teo Soh Lung v Minister for Home Affairs and others [1990] 1 SLR(R) 347 (“Teo Soh Lung (CA)”), which concerned a detention under the ISA. The grounds of detention and the allegations of fact on which the detention was based were as follows (see Teo Soh Lung v Minister for Home Affairs and others [1988] 2 SLR(R) 30 at [7]–[8]):

  136. [76] The detainee challenged her detention. For present purposes, what is relevant are the observations made by the Court of Appeal after reviewing the grounds of detention. Specifically, the Court of Appeal held that the factual allegations were inferences or judgments of facts on the basis of which the Government was well entitled to conclude, by reason of a Marxist plot to subvert the existing social and political system in Singapore, that there was a national security concern (Teo Soh Lung (CA) at [35] and [36]). In the same way, we too examine the grounds of detention in the present case and consider whether on the allegations of fact disclosed, the Appellant’s detention is unlawful. On this basis, we turn to the second broad issue we need to deal with.

  137. Issue 2: Is the Appellant’s detention lawful taking the appropriate approach?

  138. [77] We pause to note that the doctrines of illegality and irrationality might have been conflated somewhat (see Daniel Tan, “An Analysis of Substantive Review in Singaporean Administrative Law” (2013) 25 SAcLJ 296 at paras 33–44 for a helpful discussion on the points of conflation). This is possibly due to the different expressions of Lord Greene MR and of Lord Diplock respectively in Wednesbury and Council of Civil Service Unions and others v Minister for the Civil Service [1985] 1 AC 374 (“GCHQ”) (see Jeffrey Jowell & Anthony Lester, “Beyond Wednesbury: Substantive Principles of Administrative Law” [1987] PL 368).

  139. [78] In Wednesbury, Lord Greene MR said that he was doubtful that the permissible grounds of review could be defined under a single head and that many overlapped under the broad umbrella of unreasonableness including, in particular, the decision-maker’s obligation to consider relevant considerations, not consider irrelevant ones, and not make a decision which was so absurd so that no sensible person would ever think the decision was one within the powers of the decision-maker to make (at 228–229).

  140. [79] In GCHQ, which followed Wednesbury, Lord Diplock seemed to take a different approach and made it clear that illegality and irrationality were focused on two different things (GCHQ at 410–411):

  141. (a) Illegality meant the decision-maker had to correctly understand the law regulating his decision-making power and give effect to it.

  142. (b) Irrationality meant Wednesbury unreasonableness and referred to decisions which were so outrageously defiant of logic or accepted moral standards that no sensible person who had applied his mind to the question would arrive at the impugned decision.

  143. [80] In our judgment, illegality and irrationality are separate, though overlapping, heads of review because at their core, each serves a different purpose. A decision may be legal in the sense that it is within the legislative scheme, but nevertheless impugned for being substantively unlawful (Thio Li-ann, “Law and the Administrative State” in The Singapore Legal System (Kevin Y L Tan ed) (Singapore University Press, 2nd Ed, 1999) (“Law and the Administrative State”) at p 185). This is because illegality serves the purpose of examining whether the decision-maker has exercised his discretion within the scope of his authority and the inquiry is into whether he has exercised his discretion in good faith according to the statutory purpose for which the power was granted, and whether he has taken into account irrelevant considerations or failed to take account of relevant considerations (Harry Woolf et al, De Smith’s Judicial Review (Sweet & Maxwell, 7th Ed, 2013) (“De Smith’s Judicial Review”) at para 5–001). Conversely, irrationality is a more substantive enquiry which seeks to ascertain the range of legally possible answers and asks if the decision made is one which, though falling within that range, is so absurd that no reasonable decision-maker could have come to it (see Law and the Administrative State at p 186). In short, illegality examines the source and extent of the Minister’s power and whether the power has been informed by relevant and only relevant considerations, while irrationality looks at the decision that was made and asks if it was so unreasonable that after considering the correct factors, no reasonable decision-maker could have come to it.

  144. [81] It is appropriate for us to emphasise that although we have sought to preserve the relevance of this dichotomy, it is by no means a strict one as certain decisions may be both illegal and irrational at the same time. A good example is seen in Wednesbury at 229–230, where Lord Greene MR alluded to the decision to sack a teacher on the basis of her red hair, a decision which can fall within both illegality and irrationality. We now turn to the facts.

  145. [82] The Appellant submits that his detention is unlawful on all three grounds encapsulated in the Traditional Test. We begin with illegality. He contends his detention is illegal for two reasons. First, he submits that recourse to the powers under the CLTPA is confined to criminal activities which pose a threat to public safety, peace, and good order within Singapore. Unless on an objective reading of the facts it is evident that there was such a threat, the Minister had no power to detain him and his detention was therefore illegal. Second, he argues that the scope of activities contemplated by the CLTPA does not include illegal match-fixing activities. He submits that corruption and match-fixing offences do not present a sufficiently serious threat to public safety, peace and good order to be caught under the CLTPA. Hence, he contends the Minister had no power to detain him under the CLTPA because (a) his activities did not impact Singapore; and (b) they were not sufficiently serious. He says each of these is an essential element to be satisfied before the Minister could act under the CLTPA. We first set out the submissions of the parties in respect of these two issues raised, before setting out our views on the law and its application to the facts.

  146. The parties’ submissions on whether match-fixing activities harm public safety, peace and good order within Singapore

  147. [83] The Appellant submits that the CLTPA deals with public safety, peace and good order within Singapore. There must be such a threat before the CLTPA may be invoked; and this is so regardless of whether the criminal activities in question occurred within or outside Singapore. To the extent that reliance has been placed on actions carried out abroad, the Appellant says not all associations with criminal activities abroad prejudices public safety, peace and good order within Singapore, and there must be a nexus between the two. However, he submits that no such nexus is shown in the facts on which his detention is grounded.

  148. [84] The Respondent, on the other hand, submits that as long as the Minister is acting within the boundaries of his power, and is satisfied that the Appellant’s activities have an impact on public safety, peace and good order within Singapore, that settles the question. Alternatively, the Respondent contends that the Appellant has failed to show that the Minister did not understand or give effect to the requirement that the activities were a threat to public safety, peace and good order within Singapore because:

  149. (a) the Minister must be taken to have specifically directed his mind towards the impact of the Appellant’s activities in Singapore as is evident from the grounds of detention, which show that attention was directed at his activities in Singapore;

  150. (b) it is the Appellant who bears the burden of showing the unlawfulness of his detention and not the Minister who must justify the detention; and

  151. (c) for the purposes of the CLTPA, global match-fixing activities are generally to be regarded as threats to public safety, peace and good order in Singapore. The fact that the activities are global in nature and that many of these took place outside of Singapore is insufficient to render the detention unlawful.

  152. The parties’ submissions on whether match-fixing activities are sufficiently serious to fall within the remit of the CLTPA

  153. [85] The Appellant submits that the power to order detention without trial is a draconian one to be exercised as a last resort. He contends that “the CLTPA was never intended to target corruption offences in general and match-fixing activities in particular”. In this regard, he submits that the Judge erred in finding that the words “public safety, peace and good order” were words capable of encompassing a wide range of situations, or that “good order” could include the interest of having football participants playing to win and not according to the source or the size of bribes (the GD at [35]).

  154. [86] The Appellant further submits that a purposive interpretation of the CLTPA must mean that the phrase “public safety, peace and good order” is to be read conjunctively to refer to public and social order on a wide scale and would not extend to sporting integrity. Its legislative purpose should be understood as being to forestall threats to life, limb or public security. This is borne out by the following:

  155. (a) the CLTPA was originally meant to be a temporary addition to the existing criminal laws to deal with communism and secret societies, which were on the rise. That was the background and context in which the words public order appeared in the long title to the CLTPA;

  156. (b) the Senior Minister of State for Home Affairs Assoc Prof Ho Peng Kee (“Assoc Prof Ho”) said in Parliament that while the CLTPA was meant to deter overseas criminal syndicates from setting up in Singapore, secret societies and drug syndicates remained the key targets of the CLTPA, along with loansharking activities (Singapore Parliamentary Debates, Official Report (13 February 2009) vol 85 (“The 13 February 2009 Debate”) at cols 3277–3282);

  157. (c) the CLTPA is to be used only as a last resort when a serious crime affecting the public order and safety in Singapore has been committed and court prosecution is not possible because of a lack of evidence by reason of intimidation and oppression.

  158. [87] The Appellant further submits that since match-fixing activities do not involve any apparent threat to life, limb and security, there can be no threat to Singapore’s public safety, peace and good order. He submits that this same point was raised by a Member of Parliament, Mr Hri Kumar Nair, in Parliament (see Singapore Parliamentary Debates, Official Report (11 November 2013) vol 90) (“The 11 November 2013 Debate”). The Appellant further contends that the his actions are akin to economic crimes such as insider trading or market manipulation, offences for which it would be inconceivable that the Minister could detain a person under the CLTPA.

  159. [88] The Respondent, on the other hand, submits that the Appellant’s detention is lawful because, as the Appellant has accepted, there is no necessity for the threat to public safety, peace and good order to result from criminal activities within Singapore. All that is needed is that the Minister be satisfied that the Appellant’s activities have an impact on public safety, peace and good order in Singapore. The Respondent further submits that the Appellant has not shown that the Minister failed to understand or give effect to this since:

  160. (a) the Minister must be taken to have specifically directed his mind to the impact of the Appellant’s activities in Singapore;

  161. (b) the Appellant is required to prove illegality and he has failed to do so; and

  162. (c) the intent underlying the CLTPA is broad enough to contemplate global match-fixing activities which can threaten public safety, peace and good order. Just because they are global in nature and many of the activities took place beyond Singapore is insufficient to establish illegality.

  163. Our decision

  164. [89] We will set out our reasons and our decision as follows:

  165. (a) we begin with some preliminary observations that flow from our holding that the appropriate approach to an ORD application requires us to closely scrutinise the grounds of detention on an objective basis;

  166. (b) we then examine the proper scope of the CLTPA in terms of the circumstances in which it may be invoked; and

  167. (c) we then turn to the facts that are before us.

  168. In each of these sections, we will deal with both aspects of the Appellant’s case where it is necessary or relevant to our discussion.

  169. Preliminary observations

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