Ten Leu Jiun Jeanne-Marie v The National University of Singapore

Tan Siong Thye J:

[1] The plaintiff, Ten Leu Jiun Jeanne-Marie, was a Masters of Arts (Architecture) (“the MA degree”) candidate at the National University of Singapore’s (“the defendant”) School of Design and Environment. The crux of her complaint was that the defendant refused to award her the MA degree despite her meeting the academic requirements. As a result, the plaintiff sued the defendant for loss and damage. She alleged that the defendant had wrongly terminated her candidature and her claim was grounded in the following:

(a) breach of contract;

(b) the tort of misfeasance in public office;

(c) the tort of intimidation; and

(d) the tort of negligence.

[2] In the course of the proceedings, the plaintiff lodged a discovery application, Summons No 3299 of 2013 (“SUM 3299”), against the defendant for a large number of documents. The interlocutory application was heard by the Assistant Registrar (“AR”) who dismissed it. The plaintiff was dissatisfied with the AR’s decision and appealed against it. I dismissed the plaintiff’s appeal, Registrar’s Appeal No 320 of 2013 (“RA 320”), and also dismissed her application for leave to appeal to the Court of Appeal, Summons No 5875 of 2013 (“SUM 5875”).

[3] Subsequently, in Originating Summons No 699 of 2014 (“OS 699”), the plaintiff applied for my written grounds for RA 320 and SUM 5875. I dismissed her application as the parties were fully aware of the arguments. I had orally explained my decision to the parties in the course of their submissions in both RA 320 and SUM 5875 although these were not reflected in my notes. Nevertheless, she insisted on having my written grounds. Now, dissatisfied with my decision in OS 699, she seeks to appeal against it.

[4] I shall first summarise the events leading up to OS 699, because they are important for a full appreciation of this case, before addressing the main issue at hand.

[5] RA 320 was an appeal by the plaintiff against the order of the AR who disallowed her discovery application for many documents. The AR had released his written grounds of decision to explain why he refused to allow the plaintiff to have access to those documents. His reason was that she had not satisfied the threshold of relevance and necessity. At the appeal, I reminded the parties during oral submissions that it was trite law that the test for the discovery of documents was for the plaintiff to show relevance and necessity. This test depended on the issues and pleadings of the case. In the circumstances, I ruled that the plaintiff had not satisfied this test. This was explained to the parties although it was not recorded in my written notes.

[6] The plaintiff was dissatisfied with my decision to dismiss her appeal in RA 320. Accordingly she sought leave to appeal to the Court of Appeal in SUM 5875.

[7] Before the parties began their submissions, the plaintiff’s counsel made a preliminary application for her to be present at the hearing. The defendant’s counsel strenuously objected to the application as in normal practice, chamber proceedings were conducted in the absence of the parties’ respective clients. The plaintiff’s counsel did not provide any compelling reason that warranted a deviation from the norm. Nevertheless, I allowed the plaintiff to be present. This was for two reasons. First, I realised that the plaintiff had taken a very keen personal interest in the case and in the interest of transparency, I allowed her to be present. Second, she would be given a first-hand opportunity to observe and hear the arguments presented to the court. This would perhaps give her a better understanding of the court’s decision and the reasons the court decided in a particular manner.

[8] In deciding whether to grant her leave to appeal, I considered the following three criteria (see Lee Kuan Yew v Tang Liang Hong and another [1997] 2 SLR(R) 862 at [16]):

(a) whether there was a prima facie factual error made;

(b) whether there was a question of general principle to be decided for the first time; and

(c) whether there was a question of importance on which the public interest would be served by having further arguments presented and a decision rendered by a higher tribunal.

[9] The plaintiff’s case failed to satisfy any of the three criteria. Accordingly, I did not grant leave to the plaintiff.

[10] The plaintiff wrote in to the Supreme Court Registry (“the Registry”) on 31 December 2013 to request my written grounds of decision for RA 320 and SUM 5875. Subsequently, the Registry replied on 23 April 2014 that there was “no need for Grounds of Decision for this case”.

[11] On 22 April 2014 the plaintiff then sent an email to the Chief Justice. The contents of the email are set out as follows:

[12] On 28 April 2014, the plaintiff sent a letter to the Chief Justice, which enclosed a copy of the email cited above.

[13] On 8 May 2014, the plaintiff sent an email to V K Rajah JA as follows:

[14] On 21 May 2014, the Supreme Court replied to the plaintiff as follows:

[15] The plaintiff was dissatisfied with the reply and she took out OS 699 with the following application:

[16] On 29 September 2014, before the substantive hearing of OS 699, the plaintiff’s counsel made a preliminary objection to my hearing of the application and asked that I recuse myself from hearing the matter. I dismissed the application. The plaintiff’s counsel then applied for an adjournment to ascertain whether the plaintiff could appeal against this ruling. I granted the adjournment.

[17] Parties appeared before me on 20 October 2014. The plaintiff’s counsel sought a further adjournment so as to take instructions from the plaintiff on whether to seek leave to appeal against my decision not to recuse myself. I granted this adjournment too. Parties next appeared before me on 27 October 2014. At the hearing, the plaintiff’s counsel informed me that the plaintiff was not seeking leave to appeal against my decision not to recuse myself. However, in a letter sent by the plaintiff’s counsel to the Supreme Court on 24 October 2014, the plaintiff’s position was stated as such:

[18] At the hearing on 27 October 2014, the plaintiff’s counsel applied for her to be present although her counsel had advised her that this was not the usual practice. The defendant objected as she had not provided any reason for this application. Again, I allowed her to be present.

[19] In OS 699, the plaintiff sought written grounds for RA 320 and SUM 5875. She cited extensive portions of Thong Ah Fat v Public Prosecutor [2012] 1 SLR 676 (“Thong Ah Fat”) to support her application for written grounds. One of the many references that the plaintiff made to this case was from paragraph 14 of the judgment, which read:

[20] Having highlighted this judicial duty to give reasons, the plaintiff made four submissions. First, she submitted that the failure to provide written judgments for RA 320 and SUM 5875 was a violation of Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). Her argument was that as other plaintiffs had been given written grounds, she too should be given written grounds. In support of her submission, she cited Elbow Holdings Pte Ltd v Marina Bay Sands Pte Ltd [2014] SGHC 26 and Koh Chong Chian and others v Treasure Resort Pte Ltd and another [2014] SGHC 51 as instances in which the High Court furnished written grounds with respect to appeals against decisions of ARs in relation to discovery applications. On the basis of those cases, the plaintiff sought my written judgments for RA 320 and SUM 5875.

[21] Second, the plaintiff submitted that because there was no written judgment for RA 320, she was unable to make proper submissions for her leave application in SUM 5875. Thus, she was deprived of a fair hearing and her interests were prejudiced.

[22] Third, the plaintiff submitted that written grounds would be beneficial to the local jurisprudence as they would create more consistency in judicial decisions and provide both counsel and litigants with the benefit of the court’s reasoning.

[23] Fourth, the plaintiff submitted that written judgments would save the court’s time and resources as retrials would be avoided. In support of her submission, she pointed to Thong Ah Fat as an example where the Court of Appeal had ordered a retrial on the basis of inadequate reasoning in the written judgment of the trial judge.

[24] The defendant’s counsel made very brief oral submissions. First, he submitted that the court had the discretion to decide whether to issue written grounds. For this, he relied on Thong Ah Fat. Second, he noted that even the Court of Appeal did not issue written grounds in every case. Third, he argued that the plaintiff had suffered no prejudice, as neither the defendant nor the plaintiff had the benefit of any written grounds. Moreover, the plaintiff was represented by counsel in all her applications and her counsel must have been familiar with the issues and arguments.

[25] I shall first deal with the plaintiff’s preliminary application for me to recuse myself from hearing of OS 699. The basis for this application was that I had disallowed her two previous applications, namely RA 320 and SUM 5875. She further alleged in the letter dated 24 October 2014 sent by her counsel to the Supreme Court Registry that I was “clearly tainted by apparent bias” and that if I proceeded to hear OS 699 it would be a violation of natural justice as it was a case that was essentially a complaint against the judge.

[26] In the recent case of Manjit Singh s/o Kirpal Singh and another v Attorney-General [2013] 2 SLR 1108 (“Manjit”), the applicants similarly applied for the judge to recuse himself on grounds of apparent bias. The judge declined to recuse himself because he found no circumstances that gave rise to a reasonable suspicion or apprehension in a fair-minded person with knowledge of the relevant facts that he, the decision maker, was biased (citing, and applying, the test laid out in Re Shankar Alan s/o Anant Kulkarni [2007] 1 SLR(R) 85 at [91]). He noted, at [34], a few principles on recusal which are of relevance to this case, namely:

(a) An application to a judge to recuse himself must be based on credible grounds (citing 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 on the part of other judges (citing Tang Liang Hong v Lee Kuan Yew [1997] 3 SLR(R) 576 at [51]); and

(c) In determining the application, the judge must have regard to the quality of the allegation. A judge would be as wrong as to yield to a tenuous or frivolous objection as he would to ignore an objection of substance (citing Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at [55]).

[27] In this case, the plaintiff’s application for me to recuse myself was not based on any credible grounds, and was frivolous. This applied equally to her allegations of apparent bias and natural justice. In fact, it would have been inappropriate for any other judge to have dealt with this application, OS 699. This was because OS 699 was an application specifically demanding that I issue written judgments for RA 320 and SUM 5875. Therefore it was incumbent on me to hear this application because the plaintiff was insistent that the judge who heard her previous applications write the judgments. Applying the principles laid out in Manjit, I therefore dismissed the plaintiff’s application for me to recuse myself. With this, I turn now to address the plaintiff’s submissions.

[28] In the proceedings, the plaintiff first submitted that Art 12 of the Constitution was the provision on equality before the law. Her case was that Art 12 was violated when I failed to provide my written grounds to her with respect to RA 320 and SUM 5878. Specifically, she relied on Art 12(1) which reads as follows:

[29] I disagreed with the plaintiff’s interpretation of Art 12. The objective of Art 12 was made clear in Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 489 (at [54], citing Ong Ah Chuan and another v Public Prosecutor [1979–1980] SLR(R) 710) where it was held that:

[30] The issue of whether a person is unequally treated under the law was ventilated before the Court of Appeal in Eng Foong Ho and others v Attorney-General [2009] 2 SLR(R) 542 (“Eng Foong Ho”). The salient facts of that case are as follows.

[31] In Eng Foong Ho, the Government invoked its powers under the Land Acquisition Act (Cap 152, 1985 Rev Ed) to acquire land belonging to the Jin Long Si Temple (“the Temple”). Next to the temple stood the Ramakrishna Mission (“the Mission”) and the Bartley Christian Church (“the Church”). The appellants were temple devotees and they brought an action on the basis of Art 12(1), claiming that they had been unfairly treated since the Temple’s land had been acquired but neither the Mission nor the Church’s land had been acquired.

[32] The appellant’s case in Eng Foong Ho was similar to this case. In that case, the Mission, the Church and the Temple belonged to the same class as they were religious institutions located in a predominantly residential area in close proximity to the Bartley MRT station. However, only the Temple’s land had been acquired. Furthermore, the Mission and the Church would have derived benefit from having a proximate MRT station. Therefore, it was argued that the Government had treated the Temple unequally (at [23]–[24]). The Temple’s action was dismissed.

[33] In this case, the plaintiff was afforded the opportunity to attend the chamber hearings. However, she could not show that she had any normative right or an entitlement to a written decision by the court. In her submissions, she could not show anywhere in the Constitution, the rules of natural justice or the Rules of Court (Cap 322, R 5, 2006 Rev Ed) that judges have a duty to deliver written grounds in every case and that litigants correspondingly have a legal right in every case to written grounds. The premise of her claim was based on a specious comparison with other decisions in which other judges had delivered written decisions to the parties. Her argument was grounded on consequential reasoning and could not give rise to any normative right to written decisions by the court. I hence dismissed her first submission.

[34] Second, the plaintiff alleged that she was prejudiced because she had not been given written grounds in RA 320. As a result, she was unable to adequately prepare for SUM 5875. I did not agree, as her claim was not supported by the evidence.

[35] The plaintiff was represented by the same law firm, Peter Low LLC, in all the proceedings relating to her discovery application, namely, SUM 3299, RA 320, and SUM 5875. Her counsel in RA 320 must have known of the reasons her appeal against the AR’s decision was dismissed. This was because her counsel argued the appeal, as well as the application before the AR. He must have explained to her the reasons she was unsuccessful at both hearings. Later, the same counsel represented her in SUM 5875 when she applied for leave to appeal. In the lead up to each application or appeal, her counsel would have had to apprise her of all the arguments that took place in the previous proceedings, as well as why each court arrived at its ultimate decision. Therefore, I did not see how the plaintiff would have been prejudiced due to the lack of written grounds for RA 320.

[36] In any event, it was evident from the plaintiff’s written submissions for SUM 5875 that she was aware of the relevant issues for the purpose of the application for leave to the Court of Appeal. The submissions were comprehensive and apposite. All the material issues were addressed and there was no hint that she was prejudiced in any way. In the circumstances, I found that she was not prejudiced.

[37] Third, the plaintiff submitted that written judgments would enrich the local jurisprudence. In my view, although written judgments generally benefit the local jurisprudence, it is the quality and not quantity of the written judgments that ultimately matters.

[38] In this case, I observed that the plaintiff was motivated more by the fact that she had not been given written judgments for RA 320 and SUM 5875 and her insistence that these be given as of right. Her interest in enriching the local jurisprudence was furthest away from her consideration in bringing this OS. Even if that were her primary motivation, the discovery proceedings involved largely routine matters that turned primarily on the facts. There were no unique points of law. Any contribution to the local jurisprudence would have been of minimal significance. Consequently, this submission also failed.

[39] The plaintiff’s last submission was that time and resources would be saved if written grounds were issued. She relied on Thong Ah Fat, where the Court of Appeal directed a retrial of an accused facing a capital charge as it found the written judgment of the trial judge lacking in material consideration. In my view, the facts of Thong Ah Fat were materially different from this case.

[40] In Thong Ah Fat, the Court of Appeal dealt with the final order of the trial judge, namely, he found the accused guilty and sentenced him to death. The fact-finding process of the trial judge was important to the Court of Appeal for it to understand and appreciate how the trial judge arrived at his finding of guilt.

[41] In contrast, the plaintiff’s case concerned an interlocutory application for the discovery of documents. The AR had already applied the test of relevance and necessity and adequately explained why the plaintiff had failed to satisfy the threshold test. As I agreed with the AR’s decision, I dismissed RA 320. Hence there was no justification for a rehearing of this case as stated in the Supreme Court’s reply to the plaintiff dated 21 May 2014.

[42] The plaintiff was thus misconceived that there would be a saving of time and resources if I released my written grounds for RA 320 and SUM 5875. In fact, time and resources could have been saved had the plaintiff and her counsel not brought the present application, as there would then have been no necessity to deliver this written judgement as this case was unmeritorious. Therefore the plaintiff’s last submission also failed.

[43] Having dealt with the points raised in the plaintiff’s submissions, I shall now address the situations in which a judge should release his written grounds and when written grounds are not necessary. Thong Ah Fat is instructive in this regard.

[44] The starting point is that a judge should always give the reasons for his decision. This can be done either orally or in writing. As the Court of Appeal in Thong Ah Fat noted, judges must appreciate that they are judicially accountable for their decisions and it is important that justice must not only be done but seen to be done. This was expressed by the Court of Appeal (at [24]) as follows:

[45] With this starting point in mind, I now revisit the key facets of the proceedings relating to RA 320, and consider whether written grounds were necessary for that case.

[46] I am conscious of the notion that justice must not only be done but must be seen to be done. It was for this reason that I allowed the plaintiff to be present at SUM 5875 and OS 699 even though the general practice for chamber hearings was that they were conducted in the presence of counsel only but not the parties themselves, unless there are good reasons for the parties to be present. Both the plaintiff’s counsel in SUM 5875, from Peter Low LLC, and her present counsel, from L F Violet Netto, knew of this practice. That was why both her counsel in the two different chamber hearings had to seek the court’s permission to allow her to be present. Despite the defendant’s counsel’s objection to her presence on both occasions and her failure to provide good reasons for wanting to be present, I allowed her to be present during OS 699 and for the same reasons I allowed her to be present at SUM 5875 (see above at [7]).

[47] The plaintiff’s first application to be present was made in SUM 5875 when she sought leave to appeal against my decision in RA 320. The second was in OS 699, where she applied for my written grounds in RA 320 and SUM 5875. When I allowed her to be present at both proceedings, it was for several reasons.

[48] First, it is my view that justice must be transparent. That cause would have been served by her presence at the proceedings as she was deeply interested in her case. Disallowing her presence might have given her the impression that justice was only done behind closed doors. She might have thought that her interests were not being well advanced in the best possible way. She might also have been susceptible to all sorts of negative impressions of the justice system should the decision be adverse to her.

[49] Second, justice must not only be done but must be seen to be done. This could not have been achieved had I denied her application to be present at the chamber hearings. Had I done so, she would not have been able to see how counsel delivered their arguments or how the court arrived at its decision. Furthermore, if the proceedings yielded a result that was not in her favour, she may have been even more disgruntled.

[50] Third, I wanted her to listen to the arguments of counsel, my oral interventions, as well as my oral reasons which unfortunately I had not fully recorded in my notes. Despite the above, she was still dissatisfied and demanded that I provide my written judgments.

[51] Written judgments are not necessary in every instance. In fact, requiring written grounds in every case would be impractical. This was observed by the Court of Appeal in Thong Ah Fat (at [29]–[30] and [43]):

[52] The Court of Appeal in Thong Ah Fat explained that the duty to give reasons should not be equated to the duty to issue a written judgment or provide oral grounds of decision in every case (at [31]–[33]):

[53] Two salient points can be noted from the preceding passage. First, although there is a general duty to give reasons for a decision, this duty does not extend to all cases especially the less significant ones. Second, the duty to give reasons does not equate to a duty to provide written decisions. The position at law is that when it is necessary or appropriate for the court to issue written grounds, it is the duty of the court to provide them, notwithstanding the pressures of time and resources or any administrative constraints. It may be necessary and appropriate to issue written grounds where any of the following are involved:

(a) complex issues of fact or law;

(b) matters of public importance; and

(c) the laying down of principles that are to be followed in subsequent cases.

[54] The present case involved none of these. Let me elaborate.

[55] I note that although the Court of Appeal in Thong Ah Fat commented on the duty of an appellate court to provide reasons for its decision, it also advised that if the appellate court affirms the decision of the lower court and agrees with the lower court’s reasons, it is not obliged to reprise the reasons (at [44]):

[56] This observation is particularly pertinent as I heard the plaintiff’s appeal against the decision of the AR in RA 320 in my appellate capacity. At the court below, the AR had issued his written grounds of decision explaining why the plaintiff had not satisfied the threshold of the test of relevance and necessity. It is trite that, unless privilege which is protected from discovery is alleged, relevance and necessity are the operative considerations in deciding whether discovery should be allowed. The satisfaction of these considerations is dependent on the issues in each case, which are in turn dependent on the pleadings of the parties.

[57] Turning to RA 320, I had agreed fully with the AR’s written grounds of decision. There were no complicated or novel points of law. Neither were there any issues of public interest or anything else that suggested that written grounds were warranted. It was a fact-finding exercise and the plaintiff was ably represented by her counsel, who would have undoubtedly explained to her why her appeal was disallowed. Furthermore, she was allowed to observe the proceedings in chambers despite not having provided any good reasons. For those reasons, I found that issuing written grounds was unnecessary.

[58] In SUM 5875, the plaintiff applied for leave to appeal to the Court of Appeal against my decision in RA 320. She was represented by the same counsel who represented her in SUM 3299 and RA 320. Also, she was allowed to be present during the proceedings. There was thus no reason why she would not have known of the reasons for my decision.

[59] In any event, the plaintiff had to satisfy the court that her case fell within one of the three criteria listed at [8] above. She failed, and I noted that her discovery application which was an interlocutory application had already gone through two levels of judicial consideration. There must be finality to such interlocutory proceedings or the trial would be delayed further. In my view, there were no special reasons for her case to proceed to the Court of Appeal. As such, I denied her leave.

[60] When I dismissed the plaintiff’s application on 27 October 2014, I made brief remarks which I find appropriate to be set out here: