DAY 2 25 February 2011 Civil Procedure Criminal Law and Procedure Administrative Law

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1 SLW presents executive summaries of the SAL Conference talks and parallel sessions. DAY 2 25 February 2011 Civil Procedure Criminal Law and Procedure Administrative Law

2 Civil Procedure Rapporteur: JLC Debra Lam Procedure's multi-faceted relationship with substantive law: Not a mistress; not even a handmaiden Speakers: Professor Jeffrey D Pinsler, SC and Mr Cavinder Bull, SC Professor Jeffrey Pinsler began the session on civil procedure began by examining the multifaceted relationship between procedural rules and substantive law. He noted how in the past, procedure was seen as a mere handmaiden to which the courts did not feel bound to follow. Over the years, procedure has assimilated into substantive law so as to give effect to justice (United Overseas Bank Ltd v Ng Huat Foundations Pte Ltd [2005] 2 SLR(R) 425 at [8] [9]). This relationship is not an easy one, but the role of the courts is to resolve the tension between these opposing regimes. Four procedural mechanisms used by the courts to effectuate substantive law were highlighted: the rules of court, the inherent power vested in the courts, the policy approach and what Prof Pinsler termed, balancing justice. The policy approach was illustrated in Greenline Onyx E.P. v Otto Systems [2007] 3 SLR(R) 40, when the Court of Appeal considered that on the facts, the without prejudice privilege had been waived time so as to fulfil bar provisions under the Limitation Act. Further, it was noted that procedure actually helps maintain the integrity of substantive justice. As such, the courts would be loathe to flagrantly ignore procedure, especially if parties had acted egregiously as in K Solutions Pte Ltd v NUS [2009] 4 SLR(R) 254. To complete the session, Mr Cavinder Bull gave examples where the courts could be seen as setting aside procedure in the interests of substantive justice. For instance in Su Sh-Hsyu v Wee Yue Chew [2007] 3 SLR(R) 673, the Court of Appeal allowed further evidence to be adduced even though the appellant failed to fulfil the Ladd v Marshall conditions. The Court s rationale for not taking procedure to the extreme was because this would undermine the very reason for which the rules exist in the first place.

3 Criminal Law and Procedure Rapporteur: JLC Jeremy Yeo Shenglong The evolution of the Supreme Court s attitudes to criminal justice Speakers: Mr Bala Reddy, Attorney-General s Chambers Professor Michael Hor, Faculty of Law, National University of Singapore The criminal law and procedure session of the SAL conference saw two of the criminal law s most prominent figures give their careful observations on significant recent developments in the discipline. Chief Prosecutor Bala Reddy and Professor Michael Hor addressed an audience that included senior figures from the judiciary, criminal bar and prosecution service. As befitting his expertise, Mr Reddy focused on criminal procedure. He examined the recent openness of appellate courts towards the revisiting of already-concluded cases to consider new evidence or arguments not previously raised. The courts emphasis on the importance of ensuring a just outcome in criminal cases was highlighted. Mr Reddy also brought the audience s attention to a string of recent sentencing appeals where sentences departed downwards from established benchmarks. These judgments emphasised unique factual circumstances and the need to consider a wide range of mitigating factors. Judicial mercy was also exercised in some cases involving severely ill offenders. Professor Hor made an interesting comment in this regard about possible philosophical tension between such individualised justice and the legislative trend towards mandatory sentences. Professor Hor s talk concerned developments in the mental element of crimes, especially offences under the Misuse of Drugs Act. An incisive analysis was made of a possible divergence in judicial views concerning a lower standard of proof for knowledge in the drug trafficking context. An examination of rapid developments in the area of criminal liability for common intention was also made, highlighting recent narrowing of the doctrine at the highest judicial levels. The question and answer session saw insightful questions and comments. These included discussion of the role of mental culpability in sentencing, crossing the areas covered by both speakers. The relationship of the doctrine of common intention with that of abetment was also discussed, especially in the context of constructive liability for murder.

4 Administrative Law Rapporteur: JLC Ethan Tan Judicial scrutiny of the exercise of discretionary power Speaker: Mr David Chong Gek Sian, SC Mr Chong kicked off his lecture by pointing out the rising number of judicial review actions initiated over the last five years in particular, cases such as Huang Meizhe and another v Attorney-General and Dr Susan Lim Mey Lee v The Singapore Medical Council have been prominently featured in the press over the past week. Mr Chong opined that this surge of judicial review actions attests to the good functioning of the rule of law in Singapore, and that Singapore courts have responded robustly by fastidiously discharging their role as the guardian of constitutional rights and the rule of law. Singapore courts have readily recognised that actions of administrative and executive agencies are subject to judicial scrutiny based on the principles of constitutionality and legality, and have shown an ingrained reluctance to countenance the statutory exclusion of judicial review. This judicial approach is most clearly expressed by Chief Justice Chan Sek Keong in Law Society of Singapore v Tan Guat Neo Phyllis, where His Honour declared that all legal powers, even a constitutional power, have legal limits and laid down two grounds for the judicial review of prosecutorial discretion. At the same time, Singapore courts have affirmed the doctrine of separation of powers in Phyllis Tan and in Lee Hsien Loong v Review Publishing Company Limited, such that they are cautious not to intrude into the sphere of executive decision-making, such as matters of high policy, being cognisant of the fact that the executive and the legislature are co-equal branches of government which are ultimately accountable to the electorate, and not to the judiciary. Recent case law has also demonstrated the willingness of Singapore courts to facilitate challenges against the exercise of executive and administrative power. Such instances may be grouped into six categories: (a) low threshold for leave under O 53 of the Rules of Court; (b) development of the rolled-on application under O 53; (c) locus standi in proceedings under O 53 and for declaratory relief; (d) willingness to entertain belated applications under O 53; (e) pragmatic approach to procedural requirements; and (f) low or no award of costs against unsuccessful applicants.

5 The theory and practice of judicial review of administrative action Speaker: Professor Thio Li-Ann In the second lecture of the Administrative Law Parallel Session, Professor Thio examined the theory and practice of judicial review including its scope, reach and intensity with a focus on issues relating to jurisdictional error, the actors subject to review and whether informal rules are binding. The over-arching argument Professor Thio made in her lecture was that judicial review must be grounded on the basis of the constitutional principle of the rule of law, pursuant to evolving an authochtonous legal system; thus it is important to unpack the theory of judicial review beyond the enforcement of parliament s will, to recognizing the autonomous role of the courts in acting as the arbiter of responsible administration in service of good government under law. Specifically, Professor Thio endorsed Dr Mark Elliott s modified ultra vires doctrine in a constitutional setting as the middle ground between the traditional ultra vires principle and the opposing argument that administrative law is a body of judge-made common law which is unrelated to the will of Parliament, and asserted that the argument for efficiency in policymaking should not trump fundamental values. Professor Thio further noted that there is no reason that Singapore could not develop its own concept of proportionality for the purposes of judicial review, in view of the fact that the proportionality test has been imported into Malaysian jurisprudence on the constitutional basis of equality before the law in article 8 of the Malaysian Constitution, which is in pari materia with article 12 of the Singapore Constitution. The development of legitimate expectations as a basis for judicial review was also expressed to be positive, as it would ensure consistency between stated policy and actual decision-making. Additionally, four contemporary trends of Singapore administrative law were identified (a) the rejection of modern English common law influenced by the United Kingdom s Human Rights Act 1998; (b) the willingness to overlook technicalities; (c) the concern with public perception; and (d) the willingness to undertake substantive review, as opposed to mere procedural review.