Re Fong Thin Choo is an administrative law case decided in 1991 by the High Court of Singapore concerning the legality of a demand by the Director-General of Customs and Excise ("DG") that the applicant's company pay S$130,241.30 in customs duty as it had not exported certain goods. The case was presided over by Justice Chan Sek Keong. The Court decided that the DG had failed to take into account relevant evidence adduced by the applicant's company which could have been capable of rebutting the prima facie evidence of non-export, and had thus made an insufficient inquiry before arriving at his decision. Since the DG's demand had been based on an incorrect basis of fact and thus had been made contrary to law, the Court granted the applicant an order of prohibition that barred the DG from deducting the sum from certain bankers' guarantees that the applicant's company had lodged with Customs as security.
The case appears to have introduced error of material fact into Singapore case law as a ground of judicial review. While the term error of material fact was not explicitly stated in the case, the Court applied the legal rule laid down in the UK case Secretary of State for Education and Science v. Tameside Metropolitan Borough Council (1976) that a court may interfere with a government decision which has been based on a misunderstanding or ignorance of an established and relevant fact, and/or an incorrect basis of fact.
Courts in several jurisdictions including Australia, New Zealand, South Africa and the UK have followed the Tameside decision and recognized error of material fact as a distinct ground of judicial review. In the case E v. Secretary of State for the Home Department (2004), the Court of Appeal of England and Wales set out four essential requirements that must be met in order for the ground of review to be successful. It remains to be seen whether the Singapore courts will adopt this refinement of the Tameside test.
Facts
Around 12 December 1981, a company called Szetoh Import & Export Pte. Ltd. removed a large quantity of cigarettes from a licensed warehouse and transported them to the port for loading on to a vessel called the M.V. Sempurna Sejati to be exported out of the country. Although the Singapore Customs supervised the removal and transport of the goods, it did not supervise the loading of the goods on to the vessel. Subsequently, the company delivered to the Customs three outward declarations showing that the goods had been loaded on to the vessel.Re Fong Thin Choo 1 S.L.R.(R.) [Singapore Law Reports (Reissue)] 774 at 777, para. 3, High Court (Singapore).
Months later, a customs officer discovered that the goods had not been entered into the vessel's manifest. The Director-General of Customs and Excise ("DG") then made inquiries with the agent of the vessel, referred to in the judgment as "TTS", who denied that the goods had been loaded. The DG subsequently asked the company to furnish evidence of the export of the goods. On 19 September 1988, the company produced a document signed by a businessman, "TKM", stating that he had purchased and received the goods. After further correspondence, the DG concluded that the goods had not been exported and requested the company to pay S$130,241.30 in customs duty pursuant to regulation 12(6) of the Customs Regulations 1979.Customs Regulations 1979 (Gazette Notification No. S 261/1979), now the , reg. 13(7): see Fong Thin Choo, pp. 777–780, paras. 4–11.
On 30 December 1988, the applicant Fong Thin Choo, a director of the company, applied to the High Court of Singapore for leave to obtain a writ of prohibition (now known as a prohibiting order) to prohibit the DG from recovering this sum by deducting it from certain bankers' guarantees that had been lodged with Customs as security. When the Court was hearing the application to grant leave, the State Counsel, relying on section 27 of the Government Proceedings Act, ("GPA"). submitted that the court had no jurisdiction to issue an order of prohibition against the Government.Fong Thin Choo, p. 780, para. 12.
Legal issues Justice Chan Sek Keong, who heard the application, identified two legal issues:
Whether section 27 of the Government Proceedings Act strips the court of its jurisdiction to grant an order of prohibition against the Government. Whether the DG had acted on an incorrect basis of fact (or error of material fact) when deciding if the goods had been exported under regulation 12(6) of the Customs Regulations 1979.
Grounds of the decision Justice Chan held that the High Court had jurisdiction to issue an order of prohibition against the DG's decision, as section 27 of the Government Proceedings Act did not strip the court of such jurisdiction.Fong Thin Choo, p. 781, paras. 15–16. Furthermore, the DG had acted on an incorrect basis of fact in arriving at his decision that the goods had not been exported. This fact could have been verified objectively with evidence put forward by the applicant, but the DG had not carried out an adequate investigation. This had the effect of making the investigation unfair towards the applicant's company. Hence, an order of prohibition was entered against the DG.Fong Thin Choo, p. 792, para. 54.
Jurisdiction to order prohibition Justice Chan began by affirming that the High Court has jurisdiction to issue an order of prohibition against the Government. Although section 27 of the Government Proceedings Act states that courts cannot grant an injunction in civil proceedings against the Government, he rejected the State Counsel's argument that based on this provision the Court did not have power to do so. He held that the reference in section 27 to civil proceedings it did not relate to judicial review proceedings and, hence, that provision did not affect the court's ability to grant an order of prohibition during a judicial review of government proceedings.Fong Thin Choo, pp. 781–782, paras. 15–17.
Justice Chan held further that the legal principles applicable to certiorari (now known as quashing orders) are equally applicable to an order of prohibition. These principles were stated in R. v. Criminal Injuries Compensation Board, ex parte Lain (1967),R. v. Criminal Injuries Compensation Board, ex parte Lain 2 Q.B. 864, High Court (Divisional Court) (England and Wales). where it was held that "the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially".Ex parte Lain, p. 882. As the DG was a public officer appointed to discharge public duties, his decision was an exercise of public duty. Hence the DG could be subjected to an order of prohibition if he acted in excess of his authority.Fong Thin Choo, pp. 781–782, paras. 17–18.
Incorrect basis of fact (error as to material fact) Justice Chan went on to examine the case on the basis that the DG had the discretion to decide if the evidence provided to him accounted for the export of the goods, and could order customs duty to be paid if he had a factual basis for concluding that the goods had not been exported. Should the DG not have such a factual basis, he would not be able to request for the duty to be paid, and if he did he would have acted upon an incorrect basis of fact.Fong Thin Choo, p. 787, para. 35.
Justice Chan relied on a United Kingdom case, Secretary of State for Education and Science v. Tameside Metropolitan Borough Council (1976),. to ascertain the law with regard to this ground of judicial review. In this case, the House of Lords held that statutory provisions which are framed to include the word satisfaction may exclude judicial review on matters of pure judgment by the decision-maker, but judicial review will not be excluded in all cases. Lord Wilberforce held that when the judgment is dependent on the existence of relevant facts, the court has to ascertain if the facts truly exist and if they have been properly taken into account, although the evaluation of the facts is for the decision-maker alone. If these requirements are not met, an aggrieved person is entitled to challenge the decision, and the court can intervene on the grounds that the decision-maker acted outside its powers, outside the purpose of the legislation empowering it, unfairly, or upon an incorrect basis of fact.Tameside, p. 1074. Lord Diplock mentioned it was also necessary to consider if the decision-maker had taken into consideration only matters which he ought to have considered.Tameside, p. 1065.
Justice Chan proceeded to examine the statutory scheme relating to the export of dutiable goods and the imposition of customs duty on such goods. He focused on regulation 12(6) of the Customs Regulations 1979, which provides as follows:
He held that, as in Tameside, the "satisfaction" referred to in regulation 12(6) is not a matter of pure judgment or opinion. It is also concerned with an inquiry as to a fact, namely, whether dutiable goods have been exported.Fong Thin Choo, p. 785, para. 29. Thus, the applicant had to produce evidence to show that the goods had been exported and this evidence had to be to the satisfaction of the DG. Justice Chan affirmed that the test to ascertain if the DG's decision was valid was to determine if the DG could reasonably have come to his decision based on the evidence before him, or, in other words, whether the DG had decided based on a tenable factual basis.Fong Thin Choo, pp. 786–787, para. 33.
Justice Chan's answer to this question was in the negative.Fong Thin Choo, p. 794, para. 58. His decision to grant an order of prohibition was based on four grounds:Fong Thin Choo, p. 793, para. 57.
The DG could not reasonably have reached his conclusion without hearing the applicant's witnesses. The DG had misdirected himself on the nature of evidence required under regulation 12(6) to prove the export of the goods. The DG, in making an insufficient inquiry, had failed to take into account relevant considerations before arriving at his decision. The investigation had not been fair to the applicant.
Ground 1: the DG could not reasonably have reached his conclusion without hearing the applicant's witnesses The applicant had brought forward several key witnesses who had testified that the goods had indeed been exported based on their accounts of the various stages of the export. The witnesses' testimonies ranged from those affirming they had witnessed the goods being loaded on to the vessel and being transferred on to a separate vessel in Singapore waters, to the buyers confirming they had indeed received the exported goods and had paid for them.Fong Thin Choo, pp. 788–789, paras. 37–44.
The witnesses' testimonies had the possible effect of proving the export of the goods, which would have contradicted the findings of fact that had been made by the DG in his investigation.Fong Thin Choo, pp. 790–791, para. 51. It was thus necessary for the DG to have investigated the claims made by the applicant' witnesses to reach a reasonable conclusion. Hence, by not investigating the claims made by the applicant, the DG could not have reasonably come to the decision made by him due to the presence of plausible contradictory evidence.
Ground 2: the DG misdirected himself on the nature of evidence required