25 January, 2016
INTRODUCTION
The recent Court of Appeal (“CA”) decision in Tan Seet Eng v Attorney-General and another matter [2015] SGCA 59 (“Tan Seet Eng”) is a much welcomed judicial reaffirmation of the fundamental constitutional principle that “the power of the State is vested in the various arms of government and that such power is subject to legal limits”.1
This landmark decision also provided significant clarification on the applicability of this principle in the context of a detention order issued by the Minister for Home Affairs (“Minister”) under s 30 of the Criminal Law (Temporary Provisions) Act (the “CLTPA”) in respect of Tan Seet Eng (“the Appellant”). Under s 30(a) of the CLTPA, the Minister may, with the consent of the Public Prosecutor, detain without trial a person who “has been associated with activities of a criminal nature” for a period of 12 months if the Minister is “satisfied that it is necessary that the person be detained in the interests of public safety, peace and good order”.
In allowing the Appellant’s appeal and holding that his detention was unlawful, the CA took the opportunity to articulate the appropriate approach that the court should adopt when dealing with an Order for Review of Detention (“ORD”) application. This article discusses the practical implications of the CA’s decision, notwithstanding that the Minister has since reportedly re-issued a fresh detention order against the Appellant.
BRIEF FACTS
On 16 September 2013, the Appellant was arrested for his alleged involvement in global football match-fixing activities. 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 Detention Order”).
The Detention Order stated that the Minister was satisfied 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 Detention Order referred to, amongst others, the Appellant’s position as “the leader and financier of a global football match-fixing syndicate operating from Singapore” and his recruitment of runners in Singapore as well as direction and financing of match-fixing activities in various countries between 2009 and 2013. Certain allegations of the Appellant’s match-fixing activities from mid-2010 to mid-2011 were also stated in the grounds of detention. However, no particulars of the number of runners recruited or matches fixed or of the Appellant’s alleged match-fixing activities between mid-2011 and 2013 were specified.2
The Appellant subsequently commenced ORD proceedings in the High Court under O 54 r 1 of the Rules of Court to challenge the lawfulness of his detention on the traditional judicial review principles of illegality, irrationality and procedural impropriety. Dismissing the Appellant’s application, the High Court held that his detention was not “illegal” because, amongst others, although the alleged criminal activities had occurred outside of Singapore, the Appellant had not shown that those activities did not have an impact on the public safety, peace and good order in Singapore. The High Court also held that the Appellant’s detention was not “irrational” as there
were some objective grounds for the Minister to order the Appellant’s initial and continued detention.
The Appellant then filed an appeal to the CA.
SUMMARY OF DECISION
The CA allowed the Appellant’s appeal, holding that “the Appellant’s detention was unlawful because it was beyond the scope of the power vested in the Minister, which was to detain persons in the circumstances where activities of a sufficiently serious criminal nature threatened to or did undermine public safety, peace or good order in Singapore”.3
Essentially, the Appellant succeeded in challenging his detention on the ground of illegality – the CA did not find it necessary to address the other two grounds of challenge i.e. irrationality and procedural irregularity.
We highlight three important legal points arising from the CA’s judgment:
1. The appropriate approach to an ORD application requires the court to closely scrutinise the grounds of detention under s 30 of the
CLTPA on an objective basis, i.e. that the court could review the Minister’s discretion objectively.
2. Since the court has the power to review the Minister’s discretion objectively, the appropriate scope of judicial review is grounded
on the usual grounds of judicial review i.e. illegality, irrationality and procedural impropriety, as opposed to proof of probable cause
that the detention was unlawful.
3. The proper scope of the CLTPA was that regardless of where the criminal activities are carried out (whether in Singapore or elsewhere), it was only intended to deal with real and physical threats of harm within Singapore. This issue is examined in greater
detail in the next section.
PROPER SCOPE OF THE CLTPA
In considering the proper scope of the CLTPA, the CA undertook an extensive analysis of the history of the CLTPA, from its inception in 1955 to its various re-enactments and renewals in 1979, 1989, 1994, 1999, 2004, 2009 and 2013.
Through a close examination of the Parliamentary Debates over the past 60 years, the CA observed that the specific types of crimes which Parliament had intended to fall within the scope of the CLTPA had gradually been expanded. Originally, the CLTPA was enacted for the purpose of dealing with secret societies, gangsterism and thuggery.
Subsequently, the CLTPA was also intended to deal with drug trafficking, violent crimes (e.g. murder, gang rape, robbery with firearms), as well as syndicated criminal activities such as extortion, unlicensed moneylending and human trafficking. More recently, it was suggested that the CLTPA may, in principle, also be used against match-fixing syndicates.
Although Parliament had decided in 2004 not to specify a list or schedule of offences for which the CLTPA would be deployed, not all criminal activities would fall within the ambit of the CLTPA. The CA observed that the offences contemplated to be within the proper scope of the CLTPA must have three unifying features or core characteristics:
(a) the use of violence or the threat of reprisals to intimidate and prevent witnesses from testifying;
(b) the criminal activities in question must necessarily be of a sufficiently serious nature such that normal legal processes (i.e. prosecution in court) are not viable due to the threat of reprisals against witnesses who come forward to testify; and
(c) the criminal activities in question must have posed harm to the public order in Singapore.
Accordingly, the CA also emphasised Parliament’s intention that the recourse to the CLTPA was a “last resort” which should be used “sparingly and in limited circumstances”, given that individuals are ordinarily “not to be deprived of their liberty save upon a judicial determination of guilt following an open trial”
APPLICATION TO THE FACTS
The CA held that ultimately, the criminal activities for which the Minister has the power to detain a person under s 30 of the CLTPA must have a prejudicial effect on the “public safety, peace and good order” of Singapore, which is the key rationale for the CLTPA.
The onus was on the Minister to “state all the grounds relied on as justifying the detention so that the exercise of his power can be properly understood and assessed”.5
The Courts’ role was not “to fill in any gaps in the narrative of the facts by surmise or supposition”.6
The CA found that the grounds of detention in the Detention Order were deficient for the following reasons:
(a) there was nothing to indicate that the Appellant did engage in any activities of a sufficiently serious nature that were within the contemplated scope of the CLTPA. At most, the grounds of detention referred to “a slew of corrupt practices” that the Appellant was allegedly involved in;7
(b) even if the Appellant had committed the alleged criminal activities abroad, there was nothing to suggest whether or how these activities, which had few connections with Singapore, could adversely affect the public safety, peace and good order within Singapore; and
(c) it was not expressly stated that the Appellant was involved in other activities behind match-fixing activities which could have an impact on Singapore’s public safety, peace and security. Even if such activities existed and could theoretically undermine public safety, peace and good order, there was nothing to indicate that this threat existed in Singapore because of those activities.
Hence, the CA held that the Appellant’s detention was unlawful.
SIGNIFICANCE OF THE DECISION
The Minister has since reportedly re-issued a fresh order for the Appellant’s detention under the CLTPA. Notwithstanding this, the CA’s decision is significant because it has clarified that:
(a) the Courts must enquire into the Executive’s discretion objectively, i.e. whether the Executive’s exercise of discretion was illegal, irrational or procedurally improper such as to make the detention order unlawful;
(b) the relevant “activities of a criminal nature” that a person must be associated with under s 30(a) of the CLTPA must be “of a sufficiently serious nature that it leads the Minister to be satisfied that it is necessary to act in the interests of public safety, peace and good order”;8
(c) the ultimate benchmark test for a detention order to be properly issued under s 30(a) of the CLTPA is that the grounds of detention provided by the Minister must indicate whether and how the criminal activities in which a person is alleged to be involved in could threaten the public safety, peace and good order of Singapore; and
(d) the Courts will not fill in gaps in the factual narrative in the grounds of detention; the Minister must state explicitly in the detention order all the grounds relied on to justify the detention.
As a side note, the CA also considered the preliminary procedural issue of whether a person detained under the CLTPA can be present at the hearing of the appeal. The CA allowed the Appellant’s application on this issue as it would give the detainee an opportunity “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”.9
This would avoid any incongruity between a detainee who was legally represented (who would currently not be allowed to attend the hearing) and one who was not (who would be allowed to be present at the hearing).
Moreover, it was not more administratively difficult to produce a person detained under the CLTPA in court than other accused persons who were brought to court as they were all held at the same prison complex.
Accordingly, we can expect that CLTPA detainees would be permitted to be present in court for appeal proceedings in all future ORD applications.
CONCLUSION
The CA’s landmark decision is significant for “society as a whole”10 as it affirms a fundamental constitutional principle of judicial review and provides significant clarification on the approach that the Courts should adopt towards future ORD applications and the interpretation of s 30(a) of the CLTPA
1 Tan Seet Eng at [1].
2 Tan Seet Eng at [8]-[9].
3 Tan Seet Eng at [148].
4 Tan Seet Eng at [126] and [128].
5 Tan Seet Eng at [130].
6 Tan Seet Eng at [131].
7 Tan Seet Eng at [139].
8 Tan Seet Eng at [135].
9 Tan Seet Eng at [37].
10 Tan Seet Eng at [5].
