Anwar Siraj and another v Attorney-General
[2010] SGHC 36

Case Number	:	Originating Summons No 1213 of 2009
Decision Date	:	08 February 2010
Tribunal/Court	:	High Court
Coram	:	Quentin Loh JC
Counsel Name(s)	:	1st and 2nd applicants in person; Low Siew Ling and Tan En En (Attorney-General Chambers) for the respondents.
Parties	:	Anwar Siraj and another — Attorney-General

8 February 2010

Quentin Loh JC:

1       The Plaintiffs in this Originating Summons, Mr Anwar Siraj (“Siraj”), and his wife, Ms Khoo Cheng Neo Norma (“Norma”, collectively, “the Plaintiffs”), are seeking leave under O 53 r 1, Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”), to apply for various mandatory orders against the police and the Senior District Judge. The application for leave was heard by me on 14 December 2009 at the end of which I dismissed the application. The Plaintiffs filed their appeal on 13 January 2010. Putting to one side the learned Attorney-General’s objections that the Plaintiffs’ request for me to hear further arguments are out of time under s 34(1)(c) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) and O 56 r 2, ROC, I set out my full grounds for dismissing the Plaintiffs’ application for leave.

2       The Plaintiff's have asked for leave under O 53 to apply for the following mandatory orders:

3       The law is settled. The Court’s role under an O 53, r 1 application is to filter out groundless or hopeless cases at an early stage and to prevent a waste of judicial time and to protect public bodies from unnecessary harassment, whether intentional or otherwise: Public Service Commission v Lai Swee Lin Linda [2001] 1 SLR(R) 133 at [23]. This includes filtering out frivolous and vexatious cases. The applicant has to show an arguable or prima facie case of reasonable suspicion in favour of granting the public law remedy sought by the applicant: Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR(R) 294 and Lai Swee Lin Linda’s case. The burden on the applicant is thus not high.

The Facts

4       The Plaintiffs’ applications for mandatory orders arise from their misconceived and misguided views on the custody of exhibits brought before an arbitrator at a preliminary meeting.

5       The Plaintiffs entered into a construction contract on the SIA Form (“the Building Contract”), with a contractor (“the Contractor”), to demolish an existing one-storey building on their property and to construct a three-storey building with a basement and swimming pool. Disputes and differences arose between the Plaintiffs and the Contractor. The matter was referred to arbitration and, in accordance with their agreement to arbitrate, an arbitrator (“the Arbitrator”), was appointed by the President of the Singapore Institute of Architects as the parties could not agree upon an arbitrator.

6       At a preliminary hearing on 14 April 2003 at the Arbitrator’s office conference room, the Plaintiffs brought some exhibits, viz, two dismantled self priming (Hayward) swimming pool pumps, a dismantled DE 1½ hp Hayward filter, one queen-sized mattress stained by water ingress into the basement and a “bundle” or box of documents. After the hearing, the Plaintiffs refused to remove the exhibits. Even after the Arbitrator wrote a number of letters asking Mr G Raman, Norma’s lawyer, and Siraj, to remove the same, they steadfastly refused to do so. Mr Raman stated that it was Siraj who brought the exhibits to the preliminary hearing and not his client. The Plaintiffs’ stand was that these exhibits were also to be used at the hearing proper of the case and having incurred the cost of bringing these items to the preliminary meeting, they did not see why they had to move it only to have to bring it back again at the main hearing.

7       The Plaintiffs were clearly wrong. Parties who bring exhibits and documents before an arbitrator are obliged to remove these exhibits and documents when the hearing of that preliminary meeting or that tranche are over or completed. It is not the arbitrator’s duty to store these items pending the next hearing unless he agrees to do so.

8       The Arbitrator threatened to return the items. There was an unsuccessful attempt by the Arbitrator to return the exhibits on 12 September 2003. As a result, Siraj filed 2 police reports on 12 September 2003 against the Arbitrator’s secretary and four males who accompanied her, for disturbing the peace and causing anxiety and harassment to the Plaintiffs, and another police report against the Arbitrator for causing, engineering and/or aiding and abetting the disturbance of the peace and harassment of the Plaintiffs. It is telling that these two reports did not mention that the Arbitrator was trying to return the Sirajs’ exhibits; one of these reports merely said the aforementioned persons came in: “…a lorry loaded with various size [sic] card box boxes and other items…the said female and the other four males caused anxiety and harassment to the occupants of the premises by hovering at the gate of the private residence and climbing on the entrance culvert to peep into the premises.” (emphasis in the original report). These two reports were also misleading in context by alleging that all the articles “dumped” were in possession of the Arbitrator. Slightly more than 5½ months later, on or around 2 October 2003, the Arbitrator employed the contractor to take the exhibits and unload them in front of the Plaintiffs’ house. In his Affidavit filed on 27 October 2009, Siraj describes the earlier attempt and the return of the exhibits as follows:

67. Equipped with this private and priviledged [sic] information that both Mr Siraj and Ms Khoo were severely handicapped and/or on hospitalization leave, Mr John Ting [the Arbitrator] embarked on malicious, scandalous and oppressive acts of gangsterism and high handedness. Mr John Ting behaved like a mafia mastermind orchestrating a series of criminal acts to harass, intimidate and oppress Mr Siraj and Ms Khoo. It seems that Mr John Ting preferred to spend his time committing mischief and other criminal offences and cause grievous harm, damage and trauma than to convene a “simple” meeting even if it was for a mere 10 minutes to consider the bundle of documents and other items brought along by Mr Siraj for the meeting on 14^th April 2003.

68. …The scene of the crime was just outside the gates of the then residence of Anwar Siraj and Ms Norma Khoo … Photographic evidence of this have been submitted to both the Police and the Courts.

69. The motley band of thugs like merceneries [sic] of various Nationalities failed to offload their “cargo” and left the locality but not without climbing on the parapets, calverts [sic] intruding into the privacy of the occupants and making loud noise and fuss outside the premises and generally making a nuisance of themselves.

70. …Whilst he repeated his threats to Dr G Raman [the Plaintiffs’ and then later Norma Khoo’s lawyer] to dump the items at Dr Raman’s office, Mr John Ting clearly did not have the guts or the courage to carry out his harassment and dumping acts at the office of Dr G Raman. However, typical of a bully unable to execute his tyranical [sic] ways on one side, Mr John Ting then turned his attention back again on the residence of Anwar Siraj and Ms Normal Khoo who was still recovering from her illness.

71. Mr John Ting struck again on 02^nd October 2009.

72. This time with added malice, vengence and bravado, Mr John Ting’s then secretary and hired thugs managed to commit a series of offences which were all reported to the Police. Mr John Ting’s lackeys behaved far worse than loan shark harassment agents. So bold were these bunch of criminals that they had the time to take their own photographs of what they had done. They qualified as an unlawful assembly with a common intention to commit mischief and other offences.

9       On the 17 September 2003 the police replied to Siraj’s 2 police reports filed on 12 September 2003. The Police said that after looking into “…the facts and circumstances of the case...” they “…found no evidence of criminal element involved”; the police suggested that Siraj might wish to take up a civil suit to seek redress. Siraj wrote to the police on 29 September 2003, but the police replied on 6 October 2003 along the same vein as their earlier letter, viz, that after careful consideration of the facts and circumstances, they were of the view that it did not disclose any criminal offence; stated they were not taking further action on the matter and that Siraj might, if he wished, seek redress by civil process against the other party. As noted above, on 2 October 2003, the Arbitrator’s secretary and a contractor deposited the exhibits in front of the gate of the Plaintiffs’ premises.

10     On 14 January 2004, Siraj wrote to the Commissioner of Police querying the classification of his complaints as civil in nature and calling for action by the police. The police replied on 16 February 2004 that they had referred the alleged illegal dumping to the National Environment Agency and that they were unable to provide further assistance with regard to the other allegations in Siraj’s police reports as they were civil in nature. On 12 May 2004, Siraj wrote again to the Commissioner of Police questioning the lack of action by the police despite, as Siraj claimed, alleged disturbance of the peace and unlawful assembly, harassment of occupants of a private residence and intrusion of privacy, illegal dumping on private and/or public property, obstructing free passage of private citizens in/out of their home and mischief by the Arbitrator, his secretary and the contractor hired to return the exhibits.

11     Not satisfied, Siraj then lodged 3 Magistrate’s complaints on 22 September 2004:

(a)     COM-1801-04 (CM-2436-04)

In this first Magistrate’s complaint, Siraj made allegations against Ms Janis Tan (the Arbitrator’s secretary) and four other males for harassment, disturbing the peace (intruding into the privacy of the Plaintiffs house) and mischief; the complaint named the Arbitrator as the 1^st respondent who engaged, instigated and/or aided and abetted these persons to do these things. This related to the 12 September 2003 incident.

(The original complaint was numbered COM-1801-04. Later references in the correspondence refer to COM-1081-04 which I have assumed is a typographical error)

(b)     COM-2184-04 (CM-2943-04)

In the second Magistrate’s complaint, which referred to the 2 October 2003 incident, Siraj alleged that Ms Janis Tan and four other males dumped various items outside the Plaintiffs’ house and that it was the Arbitrator who engaged, instigated and/or aided or abetted them to do so. The offence alleged was under s 20(1) of the Environmental Public Health Act, (Cap 95, 2002 Rev Ed), read with ss 107 and 108 of the Penal Code (Cap 224, 1985 Rev Ed).

(c)     MAG-262-2005 (CM-2282-2005)

The third Magistrate’s complaint was based on the same incident and facts as those above except that the offences alleged were under ss 268 and 283 read with ss 107 and 108 of the Penal Code.

(Siraj refers to this complaint as COM-2943-04. However the exhibits give the above number).

A perusal of the documents will show that Siraj had typed out his complaints following the second page of the Subordinate Court Form for all three complaints. The 1^st was in respect of the 12 September 2003 incident. The 2^nd and 3^rd type written complaints were very similar in content and layout and related to the same incident on the 2 October 2003 except that different offences were alleged.

12     On 25 November 2004, the Magistrate’s Courts sent a minute to the police to investigate into the complaints and to report back to the Magistrate with the results of their investigations. This letter inexplicably only carried reference numbers of the first two complaints. On the 4 January 2005, the police submitted a joint investigation report with the conclusion that no offences were disclosed. The reference numbers in the letter from the police, as expected, only quoted the numbers of the first two complaints. On 10 January 2005, the Magistrate’s Courts wrote to Siraj informing him to report at the Complaints Counter, Crime Registry on 21 February 2005. Unsuccessful criminal mediation was conducted with Siraj and the Arbitrator on 21 and 23 February 2005. The Magistrate adjourned the matter until the police investigations into the “third complaint” were completed. The third Magistrate’s Complaint, registered as MAG-262-2005 (CM-2282-2005) was sent by the Subordinate Courts to the police to investigate the third complaint to report back to the Magistrate. On 26 August 2005, the Subordinate Courts wrote to the Plaintiffs to inform them that their complaint was referred to the Bedok Police Division HQ for investigation.

13     On 19 September 2005, the police submitted the same investigation report, (as that on 4 January 2005, in relation to the first two Magistrate’s complaints), in reply. From the documents, it transpires that the police did so because the facts were similar to that of the second complaint. The Subordinate Courts did not react and the matter then went into an unexplained hibernation for about 2 years and 9 months until 21 June 2008 when the Subordinate Courts asked the police to submit their report. On 23 June 2008, the police responded that the investigation for the third Magistrate’s Complaint was already submitted on 19 September 2005.

14     It is obvious that there was some unfortunate clerical or administrative errors committed by the Subordinate Courts. Siraj’s third complaint appears to bear a different number, COM-2943-04, (but is not exhibited anywhere), whereas the Subordinate Courts’ records show the 3^rd complaint as MAG-262-2005 (CM-2282-2005) although page 2 of the Subordinate Courts Form bears the same date and time of lodgement as the first two complaints, viz, “22 September 2004” and “3.26 pm” (compare the primary documents in the Affidavit of Supaletchumi d/o Suppiah, (from the Subordinate Courts), dated 10 December 2009 at pages 10 – 14, 62 – 64 (where some pages are missing) and 105 – 108 to those in the Affidavit of Muhammad Ghazali bin Abdul Rahman, (from the Police Force), dated 10 December 2009 at pages 10 – 14, 66 – 69 and 116 – 119). There was also an error in quoting the 1^st complaint in the correspondence as “1081-04” instead of “1801-04”, (an error which Siraj also made). This error was perpetuated in the correspondence and the Subordinate Courts did not realise that all three complaints had in fact been investigated by the police by 19 September 2005. Further delays took place. On 25 January 2009, Siraj made another police report for the purpose of sending representations to the Attorney-General. On 23 April 2009, the Subordinate Courts wrote to the Plaintiffs asking whether they wished to proceed with his complaints. Unfortunately by that time the Plaintiffs were no longer staying at No 2, Siglap Valley. Receiving no response, the Subordinate Courts proceeded to close the files and informed the Plaintiffs of this on 25 June 2009 in three separate letters, but all of which were sent to No 2, Siglap Valley.

15     On 27 October 2009, the Plaintiffs filed this Originating Summons. On the same day the Plaintiffs wrote to the Registrar asking that an urgent half day be fixed for the hearing of the Plaintiffs’ application for leave under O 53, ROC. As noted above, one of the issues raised is why it has taken more than 5 years for the police to investigate the matter. By then I was designated to hear all the matters relating to the Plaintiffs and my earliest date available was 14 December 2009.

16     On 28 November 2009, the Subordinate Courts wrote to the Plaintiffs, to the correct address this time, (Blk 15, #11-20, Marine Terrace, Singapore), informing him that the Magistrate’s Complaints made by him were fixed for hearing on 8 December 2009. The Subordinate Courts appear to have obtained the correct address when they saw the new address on the Plaintiffs’ Originating Summons.

17     The date fixed for hearing was also around the time that the Plaintiffs’ other matters were coming up before me for hearing. There was a PTC on 12 November 2009; various applications on 17 November 2009 for expunging parts of affidavits, the right to cross-examine witnesses and the right to file a reply affidavit in relation to the hearing of the Consolidated Originating Summonses Nos 1807/2006 and 1231/2008; a review of taxation on 30 November 2009 and I heard this OS No 1213/2009 on 14 December 2009. The hearing of the Consolidated Originating Summonses Nos 1807/2006 and 1231/2008 took place from 16 to 18 December 2009.

18     The Plaintiffs asked the Subordinate Courts for an adjournment on 2 November 2009 but this was turned down by the Subordinate Courts on 3 December 2009. At a hearing on 8 December 2009, after hearing the parties the Magistrate duly dismissed the Plaintiffs’ complaints.

19     The Plaintiffs’ affidavit in support contains a long recitation of their “grievances” over the disputes emanating from their Building Contract and their dispute with the Arbitrator. The Plaintiffs made totally unwarranted claims regarding a web of conspirators comprising the police, officers of the Subordinate Courts, officers of the Attorney-General’s Chambers and the assistant and senior assistant registrars of the High Court, all working against them who are the non-privileged underclass from the heartlands of Singapore, and conspiring to protect an upper class which includes the Arbitrator. As I have noted elsewhere, (see [2010] SGHC 20), the Plaintiffs see themselves as the persecuted under-dog when much of it is of their own doing, their misguided views and their misconceived ideas of what the law should be. Siraj sees shadows hiding sinister conspirators and conspiracies when there are none.

Reasons for Refusal to Give Leave

20     First, on the facts, the Plaintiffs do not have an arguable case or a prima facie case of reasonable suspicion. There were admittedly regrettable slip ups in the Subordinate Courts, there were also regrettable delays, but these slip ups were not, by any stretch of imagination, cover up of a conspiracy to injure the Plaintiffs or to deprive them of any legitimate rights they may have. The incident emanated from the Plaintiffs mistaken view of their legal obligations during an arbitration in relation to their exhibits. I referred and went through the photographs of the incident on 2 October 2003 with Siraj during his submissions. I pointed out the objects deposited were only partially blocking his driveway and gate. When I asked Siraj where the mattress was, he pointed to a photograph showing only a part of it protruding above the drain. The circumstances clearly did not disclose to me any of the offences alleged by the Plaintiffs against the Arbitrator or his secretary or the contractors hired to return the exhibits to him. He also confirmed that the police car took away some of the exhibits deposited. I told Siraj that he was entirely mistaken as the obligation was on him to take away the exhibits after the preliminary meeting ended. His only reply was that the Arbitrator did not even look at it. The arbitrator denies this and says he did. Even if I assume Siraj is right, the obligation was on him to take away his exhibits and there was certainly no legal obligation on the Arbitrator to keep those exhibits pending the hearing. It should be noted that in any case the Plaintiffs chose to stay away from the arbitration hearing and refused to participate. The Arbitrator had every right to ask the Plaintiffs to remove the exhibits and after over 5½ months, I could see nothing wrong in the Arbitrator employing a contractor to place them at the gate of the Plaintiffs’ house since they had refused all his reasonable requests and efforts to get them to take the exhibits away. The photographs show the true situation on 2 October 2003 and they certainly do not support Siraj’s allegations of criminal offences. An examination of the Magistrate’s Complaints and the Affidavits will clearly show that on the facts, the Plaintiffs do not have an arguable case or a prima facie case of reasonable suspicion in favour of granting the public remedy sought and on this ground alone, despite the low threshold, leave will not be granted under O 53, ROC.

21     Secondly, the law is clear. Even in cases where an application for mandamus or a mandatory order has been made, (ie, the applicants have already obtained leave under O 53), the Courts have been slow in granting such an order against the police: see Anwar Siraj and Another v Ting Kang Chung John [2009] SGCA 61 at [40]-[41], where the Court of Appeal cited with approval Clive Lewis QC, Judicial Remedies in Public Law (Sweet & Maxwell, 4^th Ed, 2009) at para 4-084: “The courts will not … give orders to the police telling them how and when to exercise their powers in specific situations as the court is not in a position to determine what action particular situations will require… Nor will the courts review the disposition of forces and the allocation of resources to particular crimes or areas will not be reviewed” and also the case of R v Chief Constable of Devon and Cornwall, ex p Central Electricity Generating Board [1982] QB 458 where the English Court of Appeal found that although there had been a breach of the peace, the court would not grant orders to the police as to how the police should carry out their duties. The Court of Appeal also stated at [42]: “We would add that even if [Siraj] had commenced proceedings by the correct process, namely for an order of mandamus, we would still refuse the order because it was not for this court to instruct the law enforcement agencies as to how they should go about doing their jobs.”

22     Although strictly speaking, PP v Quek Chin Chuan [2000] 2 SLR(R) 138, involved the jurisdiction and power of the Subordinate Courts and not para 1 of First Schedule of the Supreme Court of Judicature Act, (Cap 322, 2007 Rev Ed), Yong CJ, obiter, echoed the same approach:

The error of this position is evident by the fact that under s 366 of the CPC, the Public Prosecutor has the control and direction of criminal prosecutions and proceedings. Likewise, the police have the power over the scope of investigations it wishes to carry out. This must necessarily mean that the courts do not have the power to carry out the same functions. Doing so would otherwise amount to an unacceptable interference in executive direction by the judiciary in such circumstances.

Support for this approach goes as far back as the old Privy Council decision in Emperor v Khwaja Nazir Ahmad [1945] AIR 18, where Lord Porter said:

Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry.

23     At the end of the day, the Subordinate Courts had, in fact, referred all of Siraj’s complaints to the police. Although there were very regrettable delays due to clerical and administrative slip-ups, the police had carried out their investigations into each complaint and had come to a conclusion that no criminal offences were disclosed and that the matter pertained more to civil disputes between the parties.

24     The Courts cannot compel the police to disclose communications made to them in official confidence when they consider the public interest would suffer by the disclosure: see section 126 of the Evidence Act (Cap 97, 1997 Rev Ed). The rationale is obvious, the police have a duty to keep their sources of such information confidential; if they do not it will seriously compromise their ability to conduct effective investigations: see eg, O’Sullivan v Commissioner of Police for the Metropolis, The Times, 3 July 1995, 139 SJLB 164. In any case, there is certainly no compelling reason why these particulars should be furnished to the Plaintiffs. The Plaintiffs should note that the police are only obliged to report the result of their investigations to the Magistrate, not the complainant.

25     In the final analysis, the police did complete their investigations. The first “two” Magistrate’s Complaints were forwarded to them on 25 November 2004 and their investigations were completed and the police reported back to the Magistrate on 4 January 2005. When the “third” Magistrate’s Complaint was forwarded to the police for investigation on 25 August 2005, they reverted back by 19 September 2005. The fact that the conclusions of the police investigations, (which are ex facie entirely reasonable and correct in my view), did not coincide with the wishes of the Plaintiffs is not a ground for judicial review.

26     Thirdly, in Summons in Chambers No 4814 of 2008 in Originating Summons No 1231 of 2008, the Sirajs applied, inter alia, for an order that the Police and/or the Commercial Affairs Department, (“CAD”), and/or any other appropriate investigating authority be directed to:

The police and the courts do not exist to carry out investigations for the Plaintiffs’ civil claims. The function of the Mandatory Order is to compel the performance of a public duty: see Wade & Forsyth, Administrative Law (Oxford University Press, 10^th Ed, 2009) at p 522; Lewis, Judicial Remedies in Public Law (Sweet & Maxwell, 4^th Ed, 2009) at p 249. This means that the duty must be of a public as opposed to a private character. In R v Industrial Court and others, ex parte A.S.S.E.T. [1965] 1 QB 377, the court refused to grant a mandatory order against an arbitral tribunal on the grounds that the tribunal was not performing a public duty. Similarly in R v Barnet Magistrates’ Court, ex parte Cantor [1998] 2 All ER 333, the court did not grant a mandatory order against a justices’ clerk to make restitution of money owing because there was no public law obligation requiring the justices’ clerk to make repayment of the money to a third party. Prayer (a) overlaps significantly with their first and second prayers in the current Originating Summons. Lee Seiu Kin J dismissed this application on 19 January 2009, (see: [2009] SGHC 71), on the ground that a judge had no power to order the police to conduct an investigation or to speed up that process; and even if he had, the learned Judge stated he would not exercise that power because there was no connection between the events which formed the subject matters in the Magistrate’s Complaints and the disputes he had in Originating Summons No. 1231 of 2008 or in the related proceedings like the arbitration action. The Plaintiffs appealed to the Court of Appeal in 18/2009/N. The appeal was dismissed and one of the grounds was the first reason furnished by Lee Seiu Kin J: see [2009] SGCA 61 at [37] – [43]. The Plaintiffs cannot keep making the same application under a different guise.

27     The Plaintiffs have made some scurrilous remarks by quoting an article by one Ross Worthington as an “authority”. I let that pass as the Plaintiffs appeared to be genuinely aggrieved and passionately believed in their case and most of all because I had yet to hear the consolidated Originating Summonses. Having done so, I repeat what I stated in my judgment in [2010] SGHC 20: by the 5^th, 6^th or 7^th time the courts have held that the Plaintiffs stand or application is misconceived or dismissed their application, the Plaintiffs should ask themselves whether it is time for them to stand back and consider objectively if they are possibly the ones who are mistaken or who are in the wrong. The complaints of a web of conspiracy spun by the police, the Attorney-General and his officers, officers of the Subordinate Courts, registrars of the High Court and even judges of the High Court are fanciful and figments of their imagination. By this judgment, the Plaintiffs are warned that they should be more circumspect in their submissions.

28     After dismissing the Plaintiffs’ applications, I heard the parties on costs and fixed costs to the Attorney-General at $4,000, inclusive of disbursements.