YANGYU’S ADMINISTRATIVE LAW EXAM HYPO FRAMEWORK
Preliminary Issues
1. What is the grievance to X? What kind of remedies does X want? (Pg 2)
2. If Public law remedy wanted: Apply for leave under O 53 (Pg 4)
3. Does X have locus standi to sue? (Pg 4)
4. Is there a duty to exhaust alternative remedies? (Pg 6)
5. Is the statutory body in question or its acts subject to judicial review? (Might want to
consider this in front) (Pg 7)
6. Is it subsidiary legislation or guidelines? Is it valid? (Pg 10)
7. Is there an Ouster / Finality clause / Subjectively worded discretion etc.? (Pg 12)
Grounds of Review
Illegality
Irrationality (Pg 18)
Procedural Impropriety (Pg 21)
Ultra Vires (Pg 14)
Precedent fact doctrine
Patent error
Misapplication of law
Abuse of discretion (Pg 15)
 Improper purpose
 Fettering of discretion (Pg 16)
 Delegation of discretion
6. Relevancy (Pg 17)
1. Wednesbury
unreasonableness
2. Deciding against the
weight of evidence
3. Substantive legitimate
expectations
4. Bad Faith
1. Non compliance with statutory
procedural requirements
2. Common law Principles of
Natural Justice
 Does it apply? (Pg 22)
 Right to a fair hearing (Pg 25)
i. Notice of charges
ii. Make representations
iii. Cross-examination
iv. Legal representation
v. Reasons
 Rule against Bias (Pg 28)
i. Actual
ii. Apparent
3. Effect of Denial of NJ (Pg 30)
1.
2.
3.
4.
5.
Proportionality (Pg 21)
Subsumed under
irrationality?
1
WHAT IS THE PROBLEM?
Introduction
 _______ will want to seek judicial review of [decision maker]‘s decision to _______ (e.g. kick
him out of school).
 _______ may want to apply for ________ (e.g. a quashing order and a declaration that such a
decision is invalid.)
How to commence proceedings
Usually exam question will involve public law remedies (on top of declaration etc.)
 If public law remedy wanted: Make an application under O 53 for prerogative orders which
require leave of court. (See pg. 4)
o
If any other private law remedy wanted in addition: (can consider at end of question!)

Under recent amendments which introduced r 7 to O 53, once an applicant has
convinced the Court that he is entitled to one of the reliefs under O 53, the
court may grant the applicant additional “relevant relief”, if the Court is
“satisfied that the applicant has a cause of action that would have entitled the
applicant to any relevant relief if the relevant relief had been claimed in a
separate action”.

i.e. Must satisfy the Court that he has a valid cause of action in private law
against the public body that would have entitled him to such additional reliefs.

“relevant relief” is further defined in O 53 r 7(4) to include damages, as well as
other equitable or restitutionary reliefs.
 If public law remedy and declaration wanted: There used to be a strict rule against the mixing of
public and private law remedies under an O 53 application (Dow Jones). However, under recent
amendments to O 53 r 1, a declaration may be applied for under O 53 provided leave has been
granted for any other remedy under O. 53.
 If only private remedy (e.g. declaration) wanted: Commence proceedings either by way of a writ
or originating summons, which may be initiated without the leave of court.
o
A plaintiff who asked for declaratory relief had to meet certain requirements, namely: (a)
the court had to have the jurisdiction and power to award the remedy; (b) the matter had
to be justiciable in court; (c) the declaratory relief had to be justified by the circumstances
of the case; (d) the plaintiff had to have locus standi to bring the suit and there had to be a
real controversy for the court to resolve; (e) any person whose interests might be affected
by the declaration should be before the court; and (f) there had to be some ambiguity or
uncertainty about the issue in respect of which that declaration was asked for so that the
court’s determination would have the effect of laying such doubts to rest. (Karaha Bodas
at [14])
 If action is against a Government body:
o
Given that the original definition of “civil proceedings” in the Government Proceedings
2
Act was expanded to include “proceedings for judicial review and recovery of fines and
penalties and an application at any stage of a proceeding” it would seem that there is now
an alternative avenue to seek remedies, both the prerogative writs and the private
remedies, against the Government via the Government Proceedings Act.
Public Law Remedies
Only available in Supreme court (s. 18(2) SCJA)
Private Law Remedies
Available in all courts, but declaration and
injunction, being equitable remedies, are
Leave must be granted before application for discretionary
public law remedies can be made (O. 53, r 1
ROC)
Ex parte application supported by affidavits etc.
Later application by Originating Motion. (urgent
matters)

Mandatory order (mandamus):

o Ordering performance of a public
legal duty

Quashing order (certiorari):
o Bring up to the HC decision of
inferior court or tribunal; decision
may be quashed if error on the face 
of record or jurisdictional error found

Prohibiting Order:

o Used by HC to prevent anticipated or
continued excess of jurisdiction by a
tribunal
o E.g. Estate & Trust v SIT

Order for Review of Detention (habeas
corpus)
o O. 54, ROC
Declaration:
o O 15, r 16 ROC
o States the rights or legal position of
the parties as they stand, but does not
alter anything or do anything e.g.
enforce rights
Injunction:
o O 29, r 1 ROC
Damages
3
APPLICATION FOR LEAVE | LOCUS STANDI
Applying for leave
 If _______ elects to ask for [e.g. a quashing order coupled with a declaration], he will he have
to make an application for judicial review under O 53 which requires leave of court.
 Leave will be granted where a quick perusal of the matter should indicate a “prima facie case of
reasonable suspicion”. (Colin Chan v MITA (SGCA) at [25] per Karthigesu JA)
 This presents a very low threshold that serves to sift out “frivolous cases” and is likely to be
satisfied.
Locus standi for Public Law remedies
 The court will also have to be satisfied that the applicant has “sufficient interest” in the manner
to which the application relates in order to have locus standi to sue.
o
Although there is no specific mention of “sufficient interest” in O 53, the Singapore
courts appear to have accepted the same sufficient interest test as is provided in the
English Order Rule 3(5) and applied it liberally.
 In Colin Chan v MITA (SGHC), Prakash J (at [12]) noted that it was relatively easy to establish
the standing necessary to ask for an order of certiorari, and held that it was sufficient for one to
show there was an abuse of power that inconvenienced someone, or (at [16]) for him to show
that he has an interest in the legality of an order.
o
It was not necessary that the applicant had to have a particular grievance arising out of the
executive order complained about to establish the necessary standing to seek an order of
certiorari. It was sufficient if there was an abuse of power which inconvenienced
someone. The sufficiency of the applicant’s interest had to be judged in relation to the
subject matter of his application.
o
So this is arguably a low threshold that is usually easily satisfied!
 However, CJ Chan in an extra-judicial lecture hinted that the Singapore courts might not apply
the test with the same rigour as the UK courts citing the concern that allowing too many
unmeritorious cases to be fought could seriously curtail the efficiency of the Executive.
 If a constitutional right is at stake, but no personal harm:
o
In Tan Eng Hong, the SGCA (at [78]) clarified that in constitutional cases, applicants
need to demonstrate a violation of or an injury to their personal rights in order to be
granted standing. If a citizen’s constitutional rights were affected, it would be sufficient
since it is a right personal to him.

“The mere fact of citizenship in itself did not satisfy the standing requirement for
constitutional challenges. Applicants in constitutional challenges had to
demonstrate a violation of their personal rights to be granted standing. As
constitutional rights were personal to each citizen, a citizen whose
constitutional rights were violated could, without more, satisfactorily
demonstrate a violation of rights personal to himself.”
4
o
The SGHC in Jeyaretnam Kenneth (at [45]) pointed out that the approach adopted by the
Court of Appeal recently in Tan Eng Hong suggests that the locus standi threshold in
Singapore is unlikely to be lowered to dispense with the requirement that an applicant
who seeks to enforce a public right must have been personally affected by the decision
being challenged.
o
An applicant in a case involving a public right should certainly be required to show that
he had suffered special damage as a result of the public act being challenged and that he
had a genuine private interest to protect or further. (Jeyaretnam Kenneth at [48])
 Argument for locus standi to be granted: Constitutional rights must reside in the apex of any
hierarchy of interests worthy of judicial protection, and hence, they merit liberal standing rules
o
If the person is not personally involved in the issue: Given the importance of the issue
and the strength of the merits of the application, the Court is likely to grant _______ locus
standi to sue notwithstanding the limited personal involvement of the applicant, which is
consistent with the move in recent years towards encouraging public participation in the
administrative process.
Locus Standi for Private Law remedy
If declaration only:
 In Tan Eng Hong, the SGCA ruled (at [76]) that the threshold for locus standi is the same
whether the case is brought under O 15 r 16 or O 53 r 1 of the ROC.
 In Karaha Bodas, the SGCA held (at [15] and [19]) that the following requirements must be
satisfied for an applicant to have locus standi to bring an action under O 15 r 16 of the ROC for a
declaration:
o
o
o
the applicant must have a "real interest" in bringing the action;
there must be a "real controversy" between the parties to the action for the court to
resolve; and
the remedy sought must relate to a right which is personal to the applicant and
enforceable against an adverse party to the litigation.
Prof. Winslow’s stuff: (Not sure if up to date with SG position)
1) Private Right affected
o "Aggrieved person"; genuine interest in subject matter required: Govt of Malaysia v Lim
Kit Siang (Salleh Abas LP for majority).
 Lim Kit Siang (opposition dude) had no standing as taxpayer, politician or
road/highway user.
 Wanted to bring action claiming that certain things have been
mismanaged by the government in the building of a highway
 FC held that LKS had no standing  no locus standi
 Note dissent by Seah SCJ: as a elected MP, he therefore has a real
interest in the subject and should have locus standi to sue
o Cf Tan Sri Othman Saat v Mohd bin Ismail
 Plaintiff applied for land but had no response for 8 years. Found out that
land had been alienated to officials. Applied for declarations to impugn
the validity of the alienation
5

o
Held that plaintiff must be someone with an interest in the subject matter
– he did
Now- seems a more liberalized approach is supported for a ratepayer etc. to sue: Lim Cho
Hock v Govt of Perak
 Plaintiff (MP and Taxpayer) sued on the legality of the decision to
appoint someone as President of the Municipal Council
 Held – no reason to deny standing to plaintiff as taxpayer
2) Interference with public right causing private right to be affected (e,g., access to highway
obstructed).
o Construction blocking your driveway
3) Interference with public right only, causing special damage peculiar to plaintiff (e.g.,
noxious smoke fumes emanating from public nuisance and blowing into plaintiff's home).
4) Public Right affected - sue in name of A-G: "Relator" action (Gouriet); on the relation of the AG
o Generally, a person cannot commence such litigation unless he has locus standi for public
rights or the aid or consent of AG. If such consent is obtained, the suit is called a relator
action in which the AG becomes the plaintiff while the private citizen his realtor. (Lim Kit
Siang)
DUTY TO EXHAUST REMEDIES
Duty to exhaust alternative remedies?
 As a general rule, a person seeking judicial review of a decision by a public body must exhaust all
alternative remedies before invoking the jurisdiction of the court for judicial review. (Borissik at
[25])
 However, cases have also shown that judicial review may be granted before internal remedies are
exhausted especially where the alternative remedy is inadequate. (Chiam See Tong v SDP)
o
In Chiam, Warren Khoo J granted judicial review before internal remedies were
exhausted because the right to appeal to party conference would have come too late for
Chiam to hold on to his seat in parliament.
o
Moreover, party conference was not the appropriate forum as Chiam alleged breach of
natural justice and construction of party rules was a matter of law for the courts.
 Also, exhausting internal remedies does not mean that one has forfeited his right to redress in
courts (Annamunthodo).
 The modern approach seems to be to allow direct recourse to courts where illegality has allegedly
occurred : Wade & Forsyth, administrative Law (8th ed, Pg 691)
6
IS THE DECISION MADE BY A BODY SUBJECT TO JUDICIAL REVIEW?
 In order to determine if a decision made by a body is susceptible to judicial review, the court may
apply either the source or nature of power test. (UDL Marine at [50])
Source of Power
 If the source of power that is being exercised lies in a statute, or subsidiary legislation, the
decision will be susceptible to judicial review (Linda Lai at [41]).
Public body exercising a Private power
 Statutory bodies do not always exercise statutory powers in making certain decisions. What must
also be examined is the source of power in relation to a particular transaction, whether it was
contractual or the discharge of a public duty.
 If the source of power was contractual then the decision would not be subject to judicial review.
(Linda Lai)
o
In Linda Lai, the court found that the statutory bodies were exercising powers under Ms
Lai’s contractual terms of service. Consequently, their decisions were not susceptible to
judicial review.
o
In UDL Marine, the court held that the power exercised by the JTC to lease land was
treated as a private act since granting leases “was not something a private individual
would not be capable of doing”.
Nature of power
 In between the clear cut cases, it is helpful to look not just at the source of the power but at the
nature of the power.
 The "nature test" requires the court to consider whether the body in question is exercising public
law functions, or if the exercise of its functions have public law consequences. (Datafin applied
in UDL Marine at [49])
o
Thus, a body may be subject to judicial review where (1) it exercises public law functions
or (2) where such exercise has public law consequences.
Private bodies with public law functions
 It could be argued that although _________ is a private body, the nature of its function is of a
public rather than a private nature and hence its actions should be subject to judicial review.
 In Datafin, the English CA held that the unincorporated, self regulatory Panel was subject to
judicial review as it was exercising a public law function. Its immense powers were of
widespread application and applied to all who wished to make take-over bids or promote
mergers.
7
o
o
o
o
o
Regulated a very important part of the UK financial market
Exercised immense powers defacto
Performed a public duty
Operates wholly in the public domain
Quasi judicial functions
 Regarding companies and the ability of courts to review their decisions (Tang Kwor Ham v
Danaharta)
Note: Open question as to whether this is good law in Singapore. It is arguable that this can be
treated as a subset of the nature of powers act since we are mainly looking at (1) extent of government
interest (e.g. size of shareholding) and (2) whether it performs public functions or derives powers
from statutes etc.
1) Private Companies: Usually not subject to judicial review
o
This is because they usually perform no public function and are vested with no statutory
powers
o
The mere fact that the Government is a majority shareholder in a private limited
company does not make that company amenable to judicial review
2) Hybrids: Whether there is judicial review depends on the nature and character of act or omission
o
They are just like any other limited company under the Companies Act

o
Except that they perform public functions which are regulated by statute
Their amenability to judicial review depends on the nature and character of the act or
omission complained of

Where the company does something or omits to do something within the confines
of its private character, there can be no judicial review

But if it does something that is ultra vires the powers conferred on it by
statute, then it becomes amenable to judicial review
3) Companies of which the Government is the sole shareholder: Subject to judicial review
o
o
In Tang Kwor Ham:
o
Danaharta, though a company incorporated under the Companies Act 1965 was
wholly financed by public funds.
o
The affairs of Danaharta were directly or indirectly under the control of the
Minister of Finance, representing the Federal Government.
o
Further, the powers of Danaharta are, apart from its Memorandum of Association,
conferred upon it by statute, viz, the Danaharta Act.
These companies are usually in substance instruments of the government
8
Private bodies with Public law consequences
 It could be argued that although ____________ is a private body, its decisions had public law
consequences in affecting important individual interests and hence should be subject to judicial
review.
Right to livelihood + non-availability of private law remedies (no contract) = circumstances which
make the decision amenable to judicial review
 In Woon v Hochstadt, the court found that the Malayan Racing Association, by conducting and
regulating the sport of horse racing, affected the lives of a sizeable portion of the population and
hence could be said to exercise a public law function or that the exercise of its function has public
law consequences.
o
James Foong J: Decisions of MRA were amenable to review where no contractual
relationship could be established between parties, and where livelihood of plaintiff is
affected by trade or profession regulated by defendant:

(a) Plaintiff was a trained jockey and without licence, was deprived of his
livelihood;

(b) He had a legitimate expectation that his application would be considered and
if rejected, that reasons would be given. Rejection without reasons was
tantamount to a breach of procedural fairness and natural justice.
Right to property (economic interest or reputation?)
 In Kay Swee Pin, the court held that while the traditional approach of the courts to social clubs is
to leave such clubs to manage their own affairs, however, where a club expels a member, it may
only do so in compliance with the rules of natural justice.
o
Membership at the club was regarded as a symbol of social success
o
Membership had high social and economic value (190k) and was transferable
o
The club’s rules conferred general and extensive disciplinary powers  deprive of
property right worth 190k?
o
And also right to reputation?
9
FORMAL VS. INFORMAL LEGISLATION
If question involves subsidiary legislation or ministerial circulars or administrative guidelines that
lack juridical status
 It is essential to first determine if _____________ is a formal subsidiary legislation or an informal
rule because different rules apply to formal subsidiary legislation and informal rules.
*Subsidiary legislations are usually made pursuant to some act…
Status of the rule
 Subsidiary legislation is defined in s. 2(1) of the Interpretation Act to include any instrument
made under any lawful authority which has legislative effect.
 The general distinction between legislation and the execution of legislation is that legislation
determines the content of a law as a rule of conduct or a declaration as to power, right or
duty, whereas executive authority applies the law in particular cases. (Cheong Seok Leng at [42])
o
In Cheong Seok Leng v PP the assignment of “civil defence duties” to the Vigilante
corps was found to be of legislative effect because it was intended to charge the
Vigilante Corps with additional functions and duties. In making the assignment, the
Minister was determining the content of the Vigilante Corps Act.
Validity of Subsidiary Legislation
Procedural Grounds
 Under, s. 23(1) of the Interpretation Act, subsidiary legislation must be published in the
Gazette.
o
In Cheong Seok Leng, Chan J (at [75]) affirmed that this requirement was mandatory,
the non-compliance of which renders the act invalid.
 The Minister may not delegate its powers to make subsidiary legislation (s.36 (3) Interpretation
Act)
Substantive Grounds
 The subsidiary legislation may be struck down if it is unconstitutional. (Taw Cheng Kong)
o
PP v Taw Cheng Kong at [89]: “the courts, in upholding the rule of law in Singapore,
will not doubt readily invalidate laws that derogate from the Constitution which is the
supreme law of our land”
 Where the validity of subordinate legislation made pursuant to powers delegated by Act of
Parliament to a subordinate authority is challenged, the court has a threefold task: (Cheong
Seok Leng at [11] applying McEldowney)
o
First, to determine the meaning of the words used in the Act of Parliament itself to
describe the subordinate legislation which that authority is authorized to make;
o
Second, to determine the meaning of the subordinate legislation itself; and
10
o
Third, to decide whether the subordinate legislation complies with that description.
 Note that this is difficult to prove because the rule or instrument need only be incidental to the
purpose of the Act. (MM Pillay v PP).
 Conclude: Procedurally or substantively ultra vires?
Informal rules
 The adoption of a general policy by a body exercising an administrative discretion is perfectly
valid provided that: (Lines International at [78])
o
(a) the policy is not unreasonable in the special sense given to the term in Wednesbury
Corporation

i.e. it is not a decision that is so outrageous in its 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 or that no reasonable person
could have come to such a view

(b) in considering unreasonableness in the Wednesbury sense, the courts are not
entitled to substitute their views of how the discretion should be exercised with
that actually taken
o
(c) they are made known to the persons so affected;  *Note: ALL the person affected
o
(d) neither PSA nor STPB fetters its discretion in the future and is prepared to hear out
individual cases or is prepared to deal with exceptional cases: see Findlay’s case ([77]
supra) and also British Oxygen Co Ltd v Minister of Technology [1971] AC 610.
 Note that there is a presumption that a policy is legal and the burden of proof is on the claimant:
Colin Chan v PP
11
OUSTER CLAUSES
Error of law (with ouster / no certiorari clause):
Example: “an award shall not be subject to certiorari…”
Exam tip: quickly address and dismiss; don’t waste too much time here
 Ouster clauses, being against the rule of law, have been strictly construed and may possibly be
circumvented in 2 main ways.
 First, Chan CJ (as he then was), speaking extra judicially (Angst to Empathy at [19]) has
suggested that ouster clauses may be invalid for inconsistency with Article 93 which vests power
in the Supreme Court.
 Alternatively, in Yee Yut Yee, Choor Singh J borrowed the reasoning in Anisminic that ouster
clauses only applied to “real” as opposed to “purported” determinations, such that decisions made
outside the tribunal’s jurisdiction were a nullity to which ouster clauses had no relevance.
o
Extra (if too much time…):

Hence, ouster clauses only protect intra vires mistakes, and their efficacy is
subject to how expansively (or narrowly) reviewable jurisdictional errors are
defined.

To this end, although the position in Singapore is unclear (Stansfield citing SEA
Firebricks albeit as obiter), it is submitted that the better position (as stated in
Page v Hull) is to accept that all (relevant) errors of law go to jurisdiction.

However, for the purposes of this question, it will be taken that all (relevant)
errors of law go to the jurisdiction of the tribunal, and all ouster clauses can be
circumvented by the courts.
 For exam purposes: Thus, there is likely to be a strong case for such ouster clauses to be
circumvented and they are unlikely to prevent [the parties] from seeking judicial review.
Finality clause
Example: “an award shall not be subject to certiorari…”
 Such finality clauses have been construed as only final on the facts, but not on the law. (R v
Medical Appeal Tribunal, ex p Gilmore [1957])
Subjectively worded clauses
Example: if the minister is so satisfied…
 The courts have held that even absolute discretion is reviewable.
 In Jessie Tan, the objective approach of the SGCA in Chng Suan Tze to subjectively worded
conferrals of discretion was followed, under the principle that “the notion of a subjective or
unfettered discretion is contrary to the rule of law”
12
o
In Jessie Tan, LP Thean J held that the whether the registrar was satisfied was an
objective test requiring evidence before her on the basis of which it could reasonably be
said she was so satisfied.
 The test is one of justified belief, and it is up to the decision maker to prove that his decision was
justified by evidence. (Fong Thin Choo at [33])
 **Also can argue under precedent fact
NO OUSTER CLAUSE
Error of law (no ouster clause):
**For exam purposes, most likely no time to bother about jurisdictional error or not, just move on to
grounds of review.
 X can argue that _______’s decision is an error of law going to jurisdiction and hence a nullity.
o
o
o
o
o
o
Anisminic grounds:
Acting beyond power  Illegality
Statutory misconstruction  Illegality
Non-compliance with natural justice  Procedural impropriety
Taking into account irrelevant matters or failing to take into account relevant matters
Asking the wrong questions
Acting in bad faith
 In Singapore, the law is unclear as to whether errors of law within jurisdiction still exist especially
given the significant expansion of categories of errors going to jurisdiction in Anisminic, the
practical effect of which has been regarded by academics such as B.C. Gould to render obsolete
the distinction between jurisdictional and non jurisdictional errors.
o
In Stansfield, the SGHC cited SEA Firebricks, which maintained a distinction between
jurisdictional and non jurisdictional errors.
o
Given that SEA Firebricks was cited as obiter in Stansfield and has subsequently been
disapproved of in Malaysia in the MPPP case… It is submitted that the better view, as
stated in Page v Hull, is that all (relevant) errors of law go towards jurisdiction.
o
This viewpoint is arguably supported by (then) CJ Chan’s extra judicial suggestion that it
may not be necessary to draw a distinction between jurisdictional and non jurisdictional
errors of law in Singapore as Article 93 of the Constitution vests the judicial power of
Singapore in the Supreme Court.
 It is submitted that the better view, as stated in Page v Hull, is that all (relevant) errors of law
[made by an administrative tribunal] go towards jurisdiction and thus can be quashed.
Irrelevant error of law:
 However, ______________ is a mistake of law made at an earlier stage that does not affect the
actual decision made and thus may be regarded as an irrelevant error of law by the courts. (Page v
Hull)
13
SUBSTANTIVE GROUNDS OF REVIEW
Illegality, irrationality and procedural impropriety are broad headings under which a claim for judicial
review of administrative action may be made, the contravention of which will render a decision ultra
vires. (GCHQ per Lord Diplock, accepted by the SGCA in in Chng Suan Tze (at [119])
ILLEGALITY (REFERABLE TO STATUTE)
Was the decision maker entitled to enter upon the inquiry?
Precedent fact doctrine
In this case, it is arguable that __________ is a precedent fact upon which the [decision maker’s]
exercise of power depends.
 Whether the [decision maker’s] discretionary power is subject to any jurisdictional or precedent
fact depends on the construction of the legislation which creates that power. (Chng Suan Tze at
[108])
 A precedent fact involves a true or false proposition rather than a reasonable opinion. The test is
one of justified belief, and it is up to the decision maker to prove that his decision was justified
by evidence. (Fong Thin Choo at [33])
In the course of the decision making process, did the decision maker do or fail to do something
which is of such nature that the decision is a nullity?
Error “on the face of the record”
e.g. something obvious like 2+2=5
 A patent error is on which can be seen just from an examination of the record. (R v
Northumberland Compensation Appeal, ex p Shaw)
No power to make decision
X can argue that [insert name of body] has acted beyond its powers in exercising a power that it
did not have and thus its decision should be quashed for illegality.
 A decision-maker acts in an ultra vires manner when it did not have the power that it purported to
have, and therefore there was no basis in law for the impugned action.
o
Illegality as a ground of review is based on the principle that a decision-maker must
understand correctly the law that regulates his decision-making power and must give
effect to it. This ensures that the public body stays within its legislative mandate. (GCHQ
per Lord Diplock)
 In Re Yee Yut Yee, the court found that the Industrial Arbitration Court’s decision to hold a
director of a limited company personally liable was ultra vires as it was an error of law and a
decision that the tribunal had no power to make.
14
 According to Anisminic, if a tribunal misconstrued the provision giving it power to act, and
based its decision on some matter which it had no right to take into account or made an order that
it had no power to make, it will be acting outside its jurisdiction and the determination will be a
nullity
Misapplication of law or wrong legal test
Similar to above
X can argue that [insert name of body] did not have a correct understanding of the law that regulates
his/its decision-making power and was exercising a power that he/it did not have (Wong Yip Pui v
HDB).
 In Estate and Trust Agencies v SIT, the court found that the trust had applied a wrong and
inadmissible test in assessing the sanitary conditions of the houses and was thus acting beyond
their powers.
Exercising powers for an Improper purpose
X can argue that _______________ has abused its discretion by exercising its power in a manner
contrary to the object of the Act.
 The general rule is that statutory powers may be used only for the express or implied purpose
for which they were created. To do otherwise would be an abuse of power (Padfield).
 Even if the enabling legislation does not specify the purposes for which the power may be
employed, decision-makers are still constrained by the statutory scheme as a whole, and by the
purposes implicit in that scheme (Sydney Municipal Council).
o
o
Express:

In Sydney Municipal Council, the court found that the town council had acted
outside its statutory powers by attempting to acquire land not for improving the
city, but for the improper purpose of hoping to benefit from the increase in land
value.

In Howe Yoon Chong, the court held that the Property Tax Act did not give the
Minister to levy fees. Hence, the court held the regulations to be ultra vires the
Property Tax Act and therefore void.
Implied:

In R v S of S for Foreign and Commonwealth Affairs, the court implied the
secretary’s power to promote “development” to mean only economically sound
development. Hence, the court held that it would be improper for the Secretary to
invest in hydroelectric plant which was purported to be an economically unviable
project.
 Very often, a decision can be made with a mixture of motives. As long as the dominant motive
gels with the specified purpose behind the conferral of a power, the decision is not based on an
improper purpose (Westminster Corporation v London & North Western Railway)
 However, if there are alternative methods of achieving a statutory purpose, so long as it is
within the purpose, the authority is entitled to elect between the methods (Westminster Bank v
15
MHLG).
o
In Westminster Bank, the court held that since parliament had provided 2 different ways
of preventing development, the authority could legitimately choose either method even if
entailed paying no compensation to the plaintiff.
 Prolonged inaction or delay in the development of land may be indicative that the authority had
acted for an improper purpose (Teng Fuh Holdings).
 However, in Singapore, it seems that an administrative measure not need to directly relate to the
statute’s purpose but merely be "incidental to" it.
o
In PP v MM Pillay, the court took a broad construction of the purpose of the Act, and
held that the imposition of fiscal measures (analogous to a tax) was merely ancillary to
the main end of easing traffic congestion.
o
Criticise this?
No “unfettered” discretion
 The decision of a decision maker can never be “unfettered” or unlimited. (Padfield)
 "The notion of a subjective or unfettered discretion is contrary to the rule of law. All power has
legal limits and the rule of law demands that the courts should be able to examine the exercise
of discretionary power." (Chng Suan Tze at [86])
Fettering of discretion
X can argue that there was fettering of [the decision maker’s] discretion because there was too rigid
an adherence to [insert policy guideline].
 A decision maker may have policies or rules, but may not fetter its own discretion by a rigid
policy or administrative rule. He must be prepared to hear out individuals cases and must be
willing to make exceptions. (British Oxygen, applied in Lines International at [79])
o
NB. Policy itself may be subject to review: In general, the adoption of a general policy
by a body exercising an administrative discretion is perfectly valid provided that the
policy is (a) not unreasonable in the Wednesbury sense, (b) is made known to the persons
so affected, (c) the statutory body does not fetter its discretion in the future and is
prepared to hear out individual cases or is prepared to deal with exceptional cases. (Lines
International at [79])
 Never Fetter discretion:
o
In Lines International, the court found that PSA and STPB had not fettered its discretion
because as they were willing to consider representations from cruise operators and
make exceptions to the 30% restriction if the circumstances so required. The evidence
showed that a number of concessions were made and that the guidelines were applied in a
flexible manner.
o
In Komoco, the SGCA held that the registrar had given Komoco a just, fair and
reasonable hearing and there was ample evidence to show that the Registrar had
given genuine considerations to the representations of Komoco.
16
Delegation (or surrender) of discretion
X can argue that there was non-exercise of the [decision maker's] discretion in exercising its
discretionary power, because it had unlawfully delegated the responsibility of making the effective
decision to another body.
 An administrative official whose office is conferred discretionary powers is expected to apply
his own mind in the matter as opposed to acting under another’s instruction or delegating this
discretion to another. (Lavender & Sons, Lines International)
o
In Lines International, the SGHC (at [99]) found that one condition in the guidelines
appeared to be a direction by PSA to itself to take orders from STPB or GSB to deny
berth to vessels, and was a fetter on the proper exercise of its discretion, and therefore
invalid.
o
In Lavender & Sons Ltd v. MHLG, it was held that the Minister of Housing had fettered
his discretion by delegating responsibility of making the effective decision given by
Parliament to Minister of Agriculture. The minister failed to exercise his discretion
properly or at all and the quashing order was granted.
 Was the authority exercising its discretion?
o
On one hand, it could be argued, as ruled by the SGHC in Komoco, that no independent
evaluation process took place to see if an offence is computer-related. By not giving
genuine consideration to the contentions raised by Komoco, the decision maker had
fettered her discretion.
o
On the other hand, the court might follow the reasoning taken by the SGCA in Komoco,
and rule that the Authority was exercising its discretion to follow the police, because the
police, like Customs in Komoco, had more data, information and resources to determine,
and this determination might be more reliable than the authority’s.
Relevancy
X can argue that [insert name of body]’s exercise of discretion was improper as it took into account
irrelevant considerations *(or failed to take into account relevant considerations).
Courts are willing to review cases where it is shown that the decision-maker failed to take into
account all relevant considerations, or failed to disregard irrelevant considerations. Such
considerations are usually identified expressly or impliedly in the statute that underpins the decision.
 In R v Somerset County Council, Brown LJ identified three types of considerations:
o
First, those clearly (whether expressly or impliedly) identified by the statute as
considerations to which regard must be had. (mandatory relevant considerations)
o
Second, those clearly identified by the statute as considerations to which regard must not
be had. (mandatory irrelevant considerations)
o
Third, those to which the decision-maker may have regard if in his judgment and
discretion he thinks it right to do so. (discretionary relevant considerations)
17

A decision-maker has limited discretion to decide what considerations to take into
account in its reasoning process, but that these considerations cannot be
Wednesbury unreasonable (Ex parte fewings)
 In Tan Gek Neo Jessie, the SGHC held (at [22]) that the Registrar, in reaching her decision,
had took into account irrelevant considerations by relying on an allegation by J.C. Penney's
lawyers which were really inferences that had no probative value since it was not founded on
any substratum of facts.
o
The court also found that the Registrar had failed to consider relevant considerations
such as the fact that J C Penny had not used the trademarks on any goods in Singapore or
that the applicant herself had not used its trademarks on any items she sold.
IRRATIONALITY (REFERERNCE TO EXERCISE OF POWER)
Principle: Seeks to ensure that the public body does not deviate from substantive common law
principles which exist independently of principles in the statute
Unreasonableness
Even if a decision is legal in the sense of being within the legislative scheme, it may still be impugned
for being substantively unlawful.
X can argue that [insert name of body]’s exercise of power was irrational in the Wednesbury sense.
 However, there seems to be lack of conceptual clarity regarding the exact scope of that term.
Wednesbury unreasonableness, as enunciated by Lord Greene MR (and applied in Lines
International) seems to be invoked in 2 senses:
o
First, as an all inclusive umbrella term, including the necessity to take into account
relevant considerations and to exclude irrelevant considerations. (low threshold)

o
Bad faith, dishonesty or with disregard to public policy, etc.
Second, in a special limited sense states that an authority must abstain from reaching a
conclusion so unreasonable that no reasonable authority could have come to it. (high
threshold)  for exam purposes no time so just go to this straight and apply

E.g. red haired teacher dismissed because she had red hair
 In Chng Suan Tze (at [119), the SGCA observed that by “irrationality”, Lord Diplock in the
GCHQ case referred to Wednesbury unreasonableness, which he described as involving an
irrational decision “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 it”.1
o
It is important to note that Lord Greene MR added that the power of the court to interfere
1
Prof. Thio cautions that Diplock's characterisation of "irrationality" in GCHQ paves the way for the
development of substantive administrative law principles based on "accepted moral standards".
18
on the ground of unreasonableness "is not as an appellate authority to override a decision
of the local authority, but as a judicial authority which is concerned, and concerned only,
to see whether the local authority have contravened the law by acting in excess of the
powers which Parliament has confided in them"
 It is submitted that the Wednesbury unreasonableness test should be confined to the special
limited sense for clarity's sake, and other fundamental principles such as bad faith or relevancy
should stand by themselves as they did in Anisminic for conceptual clarity.
 Irrational:
o
In Mir Hassan, the SGHC held that the Strata Title Board's decision to schedule the
resumed hearing at a later date only after the sale and purchase agreement had ended was
an exercise in futility and in the circumstances of the case, unreasonable in the
Wednesbury sense.
o
In Dr Benjamin George, the court held that it was irrational to expect applicants to
repair hill slopes they did not own, which would be trespass. Moreover, 3 months was
wholly inadequate to carry out the repair of demolition works.
 Not irrational:
o
In Kang Ngah Wei, the court held that the Commander's decision to revoke the driving
licence based on the plaintiff’s own statement was not one that was so outrageous in its
defiance of logic or accepted moral standards that no sensible person who had applied his
mind to the question to be decided could have arrived at it.
Deciding against the weight of evidence
 In the past, it was held that insufficiency of evidence was not a ground of value (R v Nat Bell).
However, Paul Craig points out that today, given the acceptance of the theory of extensive
review, the courts are likely to regard deciding against the “weight of evidence” or deciding on
a “lack of evidence” as a valid ground of review.
 Prof. Winslow: It is unclear how decisions “against the weight of the evidence” or those based
on “lack of evidence” can be characterized.
 Argue under irrationality:
o
In AG v Ng Hock Guan, the SGCA held that a plain reading of the authorized officer's
report indicated a prejudiced mind which was both irrational and unreasonable as the
authorized officer took the view that evidence given by the police officers should be
treated with caution as he thought it natural that police officers would cover up for each
other.
 Where a decision maker is required to be objectively “satisfied” by evidence of facts
o
Courts have the power to inquire into whether facts relevant to decisions exist, and they
have to be satisfied that there were sufficient factual bases for decisions to have been
made. (Tameside)
o
This principle was accepted by the SGHC in Fong Thin Choo (at [35]), which stated that
the test of validity is whether the decision-maker "could reasonably have come to his
decision on the evidence before him".
19
Substantive legitimate expectations
X can argue that he had a substantive legitimate expectation that.. […]
 Under UK law, a public authority may be prevented from going back on a lawful representation
that an individual will receive or continue to receive a substantive benefit of some kind, even if
he or she does not have a legal right to the benefit, because the representation gives rise to a
legitimate expectation. (Leyland & Anthony at 313)
 That expectation may arise from a promise made by the authority, or from a consistent past
practice which the claimant can reasonably expect to continue. (GCHQ per Lord Fraser)
 It is unclear if the doctrine of substantive legitimate expectation has been acknowledged as part
of Singapore law.
o
Malaysian case: In Dr. Benjamin George, the directions in the notices departed from the
recommendations of the investigation committee without giving any reason or
explanation. The court held that this amounted to a breach of legitimate expectation
rendering notices ultra vires.
 In Borissik, the court seemed to entertain the applicant’s argument that she had a legitimate
expectation that her proposal for redevelopment of her property would be approved. The
argument eventually failed as the applicant could not point to any promise made to her by a
person with authority to justify the legitimate expectation she claimed.
o
In determining whether a legitimate expectation has been created, the SGHC in Borissik
(at [49]) adopted 4 conditions set out in De Smith’s Judicial Review:




(i) clear, unambiguous and devoid of relevant qualification;
(ii) induced by the conduct of the decision maker;
(iii) made by a person with actual or ostensible authority; and
(iv) applicable to the applicants, who belong to the class of persons to whom the
representation is reasonably expected to apply.
 However, in an extra judicial lecture (Angst to Empathy at [22]), (then) Chief Justice Chan Sek
Keong cautioned against reading Borissik as an implicit acknowledgement that legitimate
expectations can be substantively enforced. He noted that "there is good reason for judges in
Singapore to tread carefully, stepping gingerly on each stone in crossing the river".
 It is submitted that it is unlikely that the courts in Singapore will apply a whole version of this
doctrine, after all, the need to check against inconsistent treatment must be balanced against
the undesirable effects of excessively fettering administrative discretion, which could violate the
separation of powers.
Bad Faith
-
20
PROPORTIONALITY
X can attempt to argue for proportionality to be applied as a ground of judicial review, as is
recognised in UK and in Malaysia (Rama Chandran).
 Under the “principle of proportionality”, the court will consider whether the measure was
necessary and suitable to achieve the desired objective, and whether it nonetheless imposed
excessive burdens on the individual. (R v S of S for the Home Department, ex p Brind)
o
The court will decide how intensively to apply these criteria to 3 types of situation: (a)
where exercise of discretion impinges on fundamental rights; (b) where the penalty is
disproportionate to offence committed; (c) balancing of interests in exercise of
administrative discretion is disproportionate.
 However, this argument is likely to be a non-starter in Singapore, as it has been accepted that
the doctrine of proportionality, very much a continental European jurisprudential concept, has
never been part of Singapore law. (Chee Siok Chin at [87])
o
It is unlikely to be available in Singapore because an independent proportionality test
pegged higher than that of Wednesbury unreasonableness necessarily involves the court
in a consideration of the merits as it tries to balance reasons of fairness and efficiency of
means (Brind v SS for the Home Department) and CJ Chan in an extra-judicial lecture
opined that “merits adjudication…is not the function of judicial review”.
 Moreover, CJ Chan in an extra-judicial lecture opined that “merits adjudication...is not the
function of judicial review”.
 Alternatively, the SGCA in Chng Suan Tze at [121] was of the view that “proportionality”
could be subsumed under “irrationality”. If a decision on the evidence is so disproportionate
as to breach, then such a decision could be said to be irrational in that no reasonable authority
could have come to such a decision.
PROCEDURAL IMPROPRIETY
 Procedural impropriety encompasses both common law principles of natural justice and
statutorily mandated requirements of procedural fairness (GCHQ per Lord Diplock).
Common law rules of natural justice
 The 2 main limbs for natural justice are the rule against bias and the requirement of a fair
hearing.
 What are the common law rules of natural justice about?
21
o
**The Rules of natural justice represent what the ordinary man expects and accepts as
fair procedure for the resolution of conflicts and disputes by a decision making body
that affects his interest. (Stansfield Business at [26])2
When do the rules apply?
 In general, nature justice applies to all bodies with public power to make decisions which affect
the rights of individuals. (Ridge v Baldwin per Lord Reid)
 However, the exact requirements of natural justice depend on the particular circumstances of
this case and the subject-matter under consideration. (Durayappah per Lord Upjohn, Chan
Chow Wang per Wee Chong Jin CJ)
o
The right to a fair hearing and what this requires is neither absolute nor fixed but is
determined by context. (Durayappah per Lord Upjohn)
 In McInnes, Megarry VC asserted a hierarchy of interests and suggested that the amount of
procedural protection should vary with the nature of the interest at stake, which he
classified into “forfeiture”, “application”, or “expectation” cases.
o
Forfeiture: where a decision takes away an existing right or position as where a license is
revoked or a member of a organisation is expelled
o
Application: where a decision refuses to grant the applicant a right or position he seeks
o
Expectation: where the applicant has some legitimate expectation from what has already
happened that his application will be granted. These legitimate expectations, which go
beyond enforceable legal rights, relate to procedural rights rather than substance

Legitimate expectations may arise from an express promise given or from the
existence of regular practice that a claimant can reasonably expect to continue.
(GCHQ per Lord Fraser). In GCHQ itself, there was the legitimate expectation
that the minister would first consult the applications on conditions of service
before they are significantly altered

Got Legitimate expectation: In AG of HK v Ng Yuen Shiu an administrative
assurance led an illegal immigrant to believe that before deportation he would be
accorded an interview prior to a decision of his case on the merits. He had a
legitimate expectation as to the nature of the hearing but not its outcome.

No Legitimate expectation: In Siah Mooi Guat, the High Court distinguished
Ng Yuen Shiu in holding that the absence of a ministerial promise meant that she
had no legitimate expectation to continue to reside in Singapore until the expiry
of her re-entry permit.
 Megarry VC held that while forfeiture cases were to be accorded the fullest measure of
procedural protection, application cases were accorded the minimal protection where the duty
2
The ordinary man will feel that he has not been fairly heard if he has not been allowed a reasonable
opportunity to present his case. He will equally feel that he has not been fairly heard if he has not been fully
informed of what his opponent has to say or if he has not been given an opportunity to answer it or correct it. He
will similarly feel aggrieved if a point is taken by the tribunal and he has not been given an opportunity to
answer it or correct it.
22
was only to act fairly and honestly in arriving at a decision.
o
Hence, it appears that there are different degrees of procedural protection ranging from
the application of natural justice rules to merely a duty to act fairly, depending on the
interest at stake.
 **This approach has been criticised by Peter Crane and an alternative suggestion has been
that the court should determine the appropriate level of procedural protection with regard to
the impact of the decision on the aggrieved individual, as denial of a forfeiture, application
or expectation interest could have equally severe effects on the individual.
From Jonny’s muggers:
 Illustrations: categories where the rules have been applicable
 A. Master-servant relationship [Ridge v Baldwin]
 Right to be heard applies where
 1. There is no contractual relationship
 2. Where there are statutory restrictions on the employment contract [e.g.
grounds for dismissal]
 B. Deprivation of property rights [Cooper v Wandsworth]
 “No man is to be deprived of his property without his having an opportunity to be
heard”
 Extended to statutory property deprived of property [Durayappah v Fernando]
 Singapore: Foll’d in Chief Building Surveyor v Makhanlal
 C. Deprivation of membership of professional/social/cultural/bodies/societies
 Expulsion based on misconduct readily subject to the rules of NJ [Peck,
Constance Emily v Calvary Charismatic Centre]
 Where a club expels a member, it may only do so in compliance with the rules of
NJ [Kay Swee Pin v SICC]
 D. Disciplinary proceedings
 All disciplinary bodies have a duty to act fairly [Kay Swee Pin v SICC]
 Rationale: expulsion, suspension or other punishment may involve a
stigma
Where FAIR HEARING rule does NOT apply
Preliminary proceedings (for rule against fair hearing):
 Rules of natural justice (the right to be heard) may not apply to preliminary proceedings
where a sub-committee merely reports in regard to a complaint and do not either condemn or
criticise. (Chan Chow Wang)
High policy matters
 The rules of natural justice may be “excluded” where there are high level policy matters at
hand.
o
In Siah Mooi Guat, the SGHC held (at [35]) that the rules of natural justice did not apply
to aliens in the administration of immigration laws. For these rules to apply to aliens,
there had to be specific legislation, and there was no such legislation in Singapore.
o
Note: immigration as a matter of natural security? Prof. Winslow points out that this was
23
a politically laden case which must seen to be wrong. Me: Arguable that it is too “low” a
level of national security…
Others:
 Impracticality: What a fair hearing demands may be traded off against the demands of
administrative efficiency and avoidance of undue expense.
o
E.g. referees and umpires need to make decisions on the spot – no requirement of fair
hearing
 Legislative law making process
 Express Waiver: e.g. deliberately kept away from proceedings (Peck Constance Emily)
 Express exclusion of statute
 Comprehensive statutory code: The more comprehensive the statutory procedural safeguards
are, the less willing courts are to intervene (Wiseman v Borneman)
o
However, the more comprehensive statutory procedural safeguards are, the less willing
courts are to intervene, and it has been reasoned that it is NOT the function of the courts
to redraft the code. (Furnell v Whangerei).
 Matters requiring professional expertise: e.g. doctors opinion
 Inconsistency with Constitution: In Yong Vui Kong v AG (Clemency), the SGCA held that
the fair hearing rule does not apply to the clemency process, where historically at common law,
an offender seeking mercy had no right to be heard during the clemency process.
o
Moreover, Art. 22P did not provide for a right to be heard during the clemency process
24
FAIR HEARING
Requirement of a fair hearing
**Consider what level of procedural protection should be accorded first! (as above)
 The core set of principles as enunciated by Lord Hodgson in Ridge v Baldwin are the right to
be heard by an unbiased tribunal, the right to have notice of charges of misconduct, and the
right to be heard in answer to those charges.
o
Alternatively: The rules of natural justice require (1) firstly that a party is told of the case
he has to meet and of the allegations made against him, and (2) secondly, that he is given
not only a fair opportunity to put his own case, but also a fair opportunity to correct or
contradict the case and the allegations of the other party. (Stansfield Business at [26])
 The absence of a statutory requirement for a hearing is not conclusive of the issue as no
man is to be deprived of his property without having an opportunity to be heard, unless there
were express words in the statute authorizing deprivation without notice. (Chief Building
Surveyor v Makhanlall)
o
Where the statute is silent, it may be argued that a right to be heard may be implied by the
common law to "supply the omission of the legislation" (Cooper v Wandsworth per Byles
J)
Requirement of a fair hearing (1): Notice of charges of misconduct
 Prior to a fair hearing, one may claim the right to adequate notification of the date, time and
place of the hearing as well as detailed notification of the case to be met.
 In Surinder Singh Kanda, a public servant in disciplinary proceedings was not supplied with
a copy of a prejudicial report by a board of inquiry which the adjudicating officer had
access to before the hearing and this amounted to a failure to afford the appellant a “reasonable
opportunity of being heard”.
o
Similarly in Chiam See Tong v SDP, Chiam was never told the real nature of the
grievance against him and hence was not fully apprised of the case against him, leaving
much to conjecture.
o
In SAAA v Haron bin Mundir, the court found that the disciplinary committee was
working on a “much broader brief” than was revealed to the person whose conduct was
under inquiry. This fell short of fairness requirements which requires that one has a fair
opportunity to correct or contradict any relevant statement to his prejudice. (Ceylon
University v Fernando)
 However, if a case is not complex and both sides are well versed in the issue, no further
particular notice of the charges may be needed. (Stevenson applied in Peck Constance Emily)
Requirement of a fair hearing (2): Fair opportunity to make representations
 It is a requirement that the conduct of the hearing must be fair and proper.
 Fair opportunity must be given to the appellant to correct or contradict any relevant statement to
25
his prejudice. (University of Ceylon v Fernando)
 No fair opportunity:
o
In Stansfield Business, the procedure adopted by the ministry was a compartmentalised
one of conducting interviews separately with the disputants. There was no practice of
putting the allegations of one party to the other. Although Stansfield was given an
opportunity to present its case, the presentation was made without knowledge of or
reference to what the opposite party was alleging against it. So it was not a fair or
adequate opportunity.
o
In Tan Boon Chee David, members of the disciplinary committee were very slipshod
about their attendance at the disciplinary hearings. Choor Singh J held that the
appellant did not get a fair and proper hearing and that it was a clear breach of natural
justice for a member of the medical council to participate in a decision of the council
when he had not heard all the oral evidence and the submission made.
 No fair opportunity, but inconsequential:
o
In contrast, in Teo Choo Hong, the absence of the lay member at a disciplinary hearing
was inconsequential since his function was only to observe, not vote. Hence, the
applicant suffered no undue prejudice.
Requirement of a fair hearing (3): Right to cross examination
 In University of Ceylon v Fernando, the court found that there was no obligation on the part of
the VC to tender witnesses unasked for cross-examination.
o
In the case, since there was no prescription of procedure, the court found that the VC can
determine the procedure as he thinks best as long as he acts justly and honestly
o
Prof. Lynette Chua  ask whether it would have would it made a difference even if
witnesses had been cross examined. Inconsequential witnesses?
 On the basis of reciprocity, if one side is allowed to cross-examine his legal opponent at the
hearing, the other can too. (Howe Yoon Chong).
Requirement of a fair hearing (4): Right to legal representation
 In Kok Seng Chong, Hwang JC held that while there is no inherent common law right to
legal representation before a domestic tribunal, such tribunals have a discretion to admit
counsel and must always apply its mind to the exercise of that discretion.
o
The courts would review the manner in which the domestic tribunal exercised its
discretion on normal administrative law principles. The right to legal representation may
either expressly or impliedly be excluded by appropriate provisions. However, such
provisions may be challenged on the grounds of natural justice and ultra vires or
unreasonableness.
 The right to legal representation depends on whether the right to be heard can be expressed
effectively without legal representation. In Kok Seng Chong, Hwang JC (at [17]) endorsed
six factors listed by Webster J in Ex parte Tarrant to be considered when deciding whether to
26
allow counsel, in the absence of exclusionary legislation:
o
o
o
o
o
o
The seriousness of the charge and of the potential penalty
Whether any points of law were likely to arise
The capacity of a particular prisoner to present his own case
Procedural difficulties faced by prisoners in conducting their own defence e.g. lack of
access to potential witnesses
The need for reasonable speed in making the adjudication
Need for fairness as between prisoners and as between prisoners and prison officers.
 Where a domestic tribunal hearing places an individual’s reputation or his right to
livelihood in jeopardy, the stronger the case for allowing legal representation is, particularly
since this would vindicate the ideal of equality under the law. (Doresamy v Public Services
Commission)
o
The introduction of the constitutional dimension into the process should lead to greater
weightage being accorded to such procedural rights where balanced against competing
demands of efficiency
Requirement of a fair hearing (5): Duty to give reasons
Rationale: Imposing a duty on administrative authorities to give reasons for a decision promotes the
dignitarian aim of administrative law in giving an aggrieved individual a proper chance to know
possible grounds on which a decision may be challenged.
 Statutes may provide for a duty to give reasons
 In general, there is no common law duty to give reasons for an administrative decision. (Siah
Mooi Guat at [34])
 However in Doody v SS, Lord Mustill suggested that a duty may in appropriate circumstances
be implied.
o
Indeed, it has been suggested that the giving of reasons is one of the fundamentals of
good administration, and that where a right, interest or legitimate expectation is
involved, it would not be fair to deprive one without giving reasons. (Breen v
Amalgamated Engineering per Lord Denning)

For example, in Woon v Hochstadt, the court found that there was a necessity to
give reasons as the denial of a professional jockey licence would affect his
livelihood.
o
Also, where the statute is silent, it may be argued that a right to be heard may be implied
by the common law to "supply the omission of the legislation" (Cooper v Wandsworth
per Byles J)
o
Rationale: Serves to promote a dignitarian view of the individual in his dealings with the
administration (through the giving of reasons for decisions)

But cf. GCHQ (didn’t imply duty to give reasons where national security
concerns was involved)
 Lack of reasons may point to irrationality claim:
27
o
The absence of reasons may be significant “if all other known facts and circumstances
appear to point overwhelmingly in favour of a different decision”. Then, “the decision
maker who has not given reasons cannot complain if the court draws the inference that he
had no rational reason for his decision” (R v SS for Trade & Industry).
RULE AGAINST BIAS
Rationale: Promotes objectivity rather than bias and promotes the formal rule of law in insisting on
impartial judges. Moreover, “justice should not only be done but should manifestly and
undoubtedly be seen to be done” (Sussex Justices)
 “The rule against bias” asserts that one may not judge a case in which one has a personal or
pecuniary interest, and includes both actual bias and apparent bias, the rationale being that
justice should not only be done, but should also be “manifestly and undoubtedly” seen to be
done. (Re Shankar Alan, Sussex Justices)
Actual Bias
 If no express indications of bias: Given the sheer difficulty of proving actual bias especially
given its insidious and often subconscious nature, X should argue that there was an apparent
bias.
Imputed Bias: Pecuniary or proprietary interest?
 It has been accepted that any direct pecuniary interest, no matter how small, is sufficient to
automatically disqualify a person from adjudication (R v Rand per Blackburn J)
 Where there is a pecuniary or proprietary interest involved, the law raises a constructive
presumption of bias. (R v Sunderland)
o
In such cases, it is irrelevant that there was in fact no bias and it is not necessary to
investigate if there was any actual bias, or even any reasonable suspicion, real danger of
bias.
 In R v Gough, the court cautioned that the law should be slow to create new categories in which
bias is assumed and there is automatic disqualification.
o
However, the HL in Pinochet (No. 2) held that the principle of automatic disqualification
applies where the judge is himself a party or is involved in promoting a common
cause with one of the parties.
Apparent Bias
 In Singapore, the test to be applied in determining whether apparent bias has been made out is
the reasonable suspicion test. (Re Shankar Alan at [76], as applied by the SGCA in Yong Vui
Kong v AG3)
In Yong Vui Kong v AG [2011] the Court of Appeal reiterated that the test to be applied is the “reasonable
suspicion” test but held that where a Minister made a public statement on the Government’s policy on any issue,
3
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 In Re Shankar Alan, Menon JC argued that there was a conceptual difference between the 2
proposed tests in dispute (disagreeing with Phang J in Tang Kin Hwa) and preferred the
“reasonable suspicion test” over the “real likelihood” test as it allowed the court to focus the
inquiry from the point of view of the reasonable person observing the proceedings.
 Thus, the “reasonable suspicion” test is met if the court is satisfied that a reasonable member
of the public could harbour a reasonable suspicion of bias even though the court itself thought
there was no real danger of this on the facts. (Re Shankar Alan at [75])
o
The driver behind this test was the strong public interest in ensuring public confidence in
the administration of justice.
Where RULE AGAINST BIAS does NOT apply
 The doctrine of necessity is an exception to the rule against bias and operates to prevent a
failure of justice. An adjudicator who is subject to disqualification at common law may be
required to sit in if there is no other competent tribunal or if a quorum cannot be formed
without him. (Chiam See Tong v SDP at [61]; Anwar Siraj)
o
In Chiam See Tong, the SGHC found that in the absence of an alternative tribunal, it was
out of necessity that the CEC had to sit in judgment of the plaintiff.
o
Where an adjudicator has some interest in a case he hears, his disqualification will not be
allowed to destroy the character or capacity of the tribunal to act. (Anwar Siraj)
 However, the doctrine of necessity is inapplicable where the statute provides an alternative
forum to the biased tribunal or where the statute contemplates that a majority of the agency can
reach a decision. (Anwar Siraj)
o
Perhaps a final limitation is that even the rule of necessity will not justify an adjudicator
sitting where actual bias can be shown. (Anwar Siraj)
the rule against bias ought not to be applied to him as though he were a judicial officer or a quasi-judicial officer
should he later be required to exercise his discretion on a matter relating to that policy. Otherwise, no Minister
would be able to speak on any governmental policy in public lest his statement be construed as a
predetermination of any matter.
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Effect of denial of Natural Justice
 Effect on decision: better view of the authorities is that the decision is void. (Ridge v Baldwin)
 No need to show that the defect of NJ caused actual prejudice. (Annamunthodo)
 Is a defect of NJ is “curable” on appeal?
o
o
Yes:

Only where an appeal is a rehearing de novo. (from the beginning).

Later decision [appeal] will be valid if the whole matter is reconsidered afresh
after affording the person affected a proper opportunity to present his case.
(Ridge v Baldwin)

Not cured simply by a fair hearing on appeal (Vasudevan Pillai v SCC)
No:
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