Speech by Mr. Louis Ng Kok Kwang, MP for Nee Soon GRC at the Second Reading of the Constitution of the Republic of Singapore (Amendment) Bill (Bill No. 30/2019),Judges’ Remuneration (Amendment) Bill (Bill No. 31/2019) and Supreme Court of Judicature (Amendment) Bill (Bill No. 32/2019),
Sir, the Constitution of the Republic of Singapore (Amendment) Bill, the Judges’ Remuneration (Amendment) Bill, and the Supreme Court of Judicature (Amendment) Bill (“SCJA Bill”) propose amendments to restructure the Supreme Court by introducing a new Appellate Division of the High Court.
My speech addresses the restructuring collectively proposed by all three Bills.
I support these amendments which will allow the Supreme Court to better manage its caseload in light of the increase in the number and complexity of cases.
I have just three clarifications on how the Court of Appeal will exercise its jurisdiction and how the restructuring will affect the application of existing case precedents.
Transfer of cases from the Court of Appeal to the Appellate Division
The new Section 29E(1) proposed by the SCJA Bill allows the Court of Appeal to transfer to the Appellate division any civil appeal made to the Court of Appeal. The proposed Section 29E(5) clarifies that the transfer may be made even if it is a case that is ordinarily allocated to the Court of Appeal.
Can the Minister clarify under what situations might the Court of Appeal make such a transfer?
Appendix B of the Ministry’s press release on the restructuring of the Supreme Court suggests that the Court of Appeal may do so if the issues on appeal relate to settled law.
However, what is settled law may not always be so clear cut.
For instance, the High Court in Public Prosecutor v Lam Leng Hung and others  SGHC 71 and the Court of Appeal in Public Prosecutor v Lam Leng Hung  SGCA 7, more commonly known as the City Harvest cases, held that directors did not fall within the definition of “agents” under Section 409 of the Penal Code on criminal breach of trust by an agent.
In doing so, the Court of Appeal and the High Court overturned what had then seemed to be settled law for four decades that directors will be liable for the offence of criminal breach of trust by way of their business as agents in respect of property entrusted to them in the course of their duties as directors.
Admittedly, the City Harvest cases were criminal proceedings. Nonetheless, the point stands that what appears to be settled law in civil proceedings may be subsequently contested.
The prescribed categories of civil appeals to be heard by the Court of Appeal are to be set out in a schedule to the amended SCJA and may be amended by the Minister after consulting the Chief Justice.
While some flexibility is required, it would undermine the purpose of this categorisation and certainty for litigants if the Court of Appeal has unfettered discretion in determining which Court should hear the appeal.
Can the Minister provide some guidance on how the Court of Appeal should exercise its discretion under Section 29E(1) in transferring a case ordinarily allocated to its jurisdiction to the Appellate division?
Granting of leave to appeal
Under the new Section 47(2) in the SCJA Bill, the Court of Appeal may grant leave for an appeal against a decision of the Appellate Division in a civil case if the appeal will raise a point of law of public importance.
However, Section 47(4) clarifies that the Court of Appeal is not required to grant leave even if the appeal will raise a point of law of public importance.
Can the Minister share what policy considerations override the benefit of having the Court of Appeal rule on a point of law of public importance?
In what categories of cases that raise a point of law of public importance should the Court of Appeal nonetheless decline to grant leave to appeal?
Impact on operation of judicial precedent
Next, can the Minister clarify how the existing case precedents will apply in the restructured Supreme Court under the principle of stare decisis?
The doctrine of judicial precedent means that the finding of a higher court which forms the basis of its decision is binding on a court lower in the hierarchy. Currently, the Court of Appeal is at the top of the hierarchy followed by the Singapore High Court, the District Court, and the Magistrate´s Court.
The Appellate Division will effectively be the final appeal court for many categories of civil matters and litigants may not have recourse to the Court of Appeal. How persuasive will the findings of the Appellate Division of the High Court be when compared against the findings of the current Court of Appeal before the restructuring takes place?
Sir, in conclusion, I hope the Minister can provide guidance on how the Court of Appeal is to exercise its powers and how existing case law is to be interpreted in light of the restructured Supreme Court.
These clarifications notwithstanding, I stand in support of all three Bills.
Watch the speech here
Watch the response here