User:Sgconlaw/Yong Vui Kong v. Attorney-General

undefined__NOINDEX__

Yong Vui Kong v Attorney-General was decided by the Court of Appeal of Singapore in 2011. This appeal arose from a series of cases from the lower courts involving drug trafficking and a challenge of the mandatory death penalty. In his application, the Appellant, Yong Vui Kong, sought leave to commence judicial review proceedings on the exercise of clemency power. The Appellant unsuccessfully sought declarations that the power of clemency was exercisable at the President's discretion; that he should be granted clemency; that he was entitled to disclosure of the relevant materials sent to the Cabinet under Article 22P(2) of the Constitution of the Republic of Singapore, as well as an indefinite stay of execution of his death sentence.

Chan Sek Keong C.J. (as he then was) dealt with the application for his recusal at the outset, and dismissed the application on two grounds. Firstly, the Appellant lacked sufficient evidence to support his assertion that Chan C.J. had, during his tenure as Attorney-General ("AG"), advised the President that he had no discretion in the exercise of the clemency power. Secondly, even if he had given such advice to the President, his advice was not “wrong in law” and did not put him “in conflict with any reading of the Constitution.” In their joint judgment, Andrew Phang Boon Leong J.A. and V. K. Rajah J.A. agreed with the reasons set out by Chan C.J.

The Court acknowledged that the rule against bias could apply to the "ultimate authority" in the clemency process as it was possible for the ultimate decision-maker to be placed in a position of conflict of interest. Since the Court found that the "ultimate authority" is the Cabinet, then there was no merit in Appellant’s submission that the clemency process “had been tainted by a reasonable suspicion of bias by reason of predetermination” merely due to the statements made by the Law Minister. In its opinion, the Law Minister’s statements were neither indicative of any predetermination on his part, nor could his statements be representative of the entire Cabinet. The rule against bias also could not be applied in the same way it did to a Minister making a public statement on the government’s policy on a particular issue, as it did to a judicial or quasi-judicial officer. The Court subsequently dismissed the appeal.

Background facts


The Appellant, Yong Vui Kong, had been convicted of drug trafficking and was sentenced to death in 2008. He then petitioned for clemency from the President pursuant to Article 22P of the Constitution of Republic of Singapore (“the Constitution”) in 2009. When clemency was denied, the Appellant commenced a series of appeals in both the High Court and the Court of Appeal on various issues.

This appeal (“Yong Vui Kong”), in particular, was made against the High Court’s decision to dismiss the application to commence judicial review proceedings and to seek declarations that the clemency power under Article 22P of the Constitution was exercisable by the President acting in his discretion. Additionally, he sought to dispute the High Court’s finding that there was no bias arising from reasonable apprehension of predetermination of the sentence before the appellate court confirmed it, even in light of the statements and remarks made by the Minister and Ministry of Law a few days before the Court of Appeal delivered its judgment.

The issues raised in this appeal were, inter alia:
 * Whether Chan C.J. should be recused from the case on the grounds of imputed bias;
 * Whether administrative law rules of natural justice apply to the clemency process; and
 * Whether the public statement made by the Law Minister created “a reasonable suspicion of bias by reason of predetermination” vis-à-vis the clemency process.

The general law on recusal of judges
The administrative law rules of natural justice comprise two pillars as follows:
 * 1) Impartiality (rule against bias; nemo judex in causa sua – “no one should be a judge in his own cause”); and
 * 2) Fair hearing (right to be heard; audi alteram partem – “hear the other side”)

The application for recusal concerns the first pillar. The rule against bias asserts that only persons who have no personal interests can make fair decisions, and that any bias will invalidate the decision-making process.

There are three established categories of bias: actual, apparent and imputed bias. Although it was submitted on behalf of the Appellant that Chan C.J. should be recused on grounds of apparent bias, it should be noted that Rajah J.A. and Phang J.A. regarded the issue as one of imputed bias, as evident from the authorities cited in the joint judgment.

The law on imputed bias
The rule on judicial disqualification on the grounds of imputed bias is that a judge is automatically disqualified from hearing a case if he has an interest in the outcome of the case. The Court in Yong Vui Kong cited the seminal case of William Dimes v The Proprietors of the Grant Junction Canal ("Dimes”). Bias may be imputed where the decision-maker has a pecuniary (monetary) or proprietary interest in the decision. In the case of Dimes, the decision-maker in question, the Lord Chancellor, was at the material time a shareholder of one of the parties to proceedings. When this was discovered, the ruling was set aside and he was disqualified from hearing the case.

Bias may also be imputed where the decision-maker has a non-pecuniary personal interest. The House of Lords decision of R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 2) (“Ex parte Pinochet”), also cited by the Court in Yong Vui Kong, illustrates this. In Ex parte Pinochet, Lord Hoffmann was disqualified and the proceedings were set aside because he was the chairman of the subsidiary of Amnesty International, which was a party to the case. Although Lord Hoffmann himself was not a party to the case and had no pecuniary interest in the outcome, their Lordships still held that Lord Hoffmann’s decision could lead to the “promotion of a cause” in which he was involved in together with Amnesty International. Therefore, it was found that Lord Hoffmann had a non-pecuniary interest in the case and was accordingly disqualified. The Court in Yong Vui Kong also elaborated on the rationale of the judicial disqualification rule. Where a judge is personally interested in the outcome of the case before him, he will not be able to give an impartial and objective judgment on the case. If such a judge were allowed to adjudicate on the case notwithstanding this risk, then that would undermine public confidence in the integrity of the administration of justice. The Court opined that it was “of the utmost importance that judges adhere scrupulously to the judicial disqualification rule”. However, any attempt to recuse a judge from hearing a case on the ground of conflict of interest must be based on credible grounds, and not be motivated by any extraneous purpose. Otherwise, the rule could become a “charter for abuse by manipulative advocates”. The Court in Yong Vui Kong endorsed the English Court of Appeal’s decision of Locabail (UK) Ltd v Bayfield Properties Ltd ("Locabail") that a judge “would be as wrong to yield to a tenuous or frivolous objection, as he would [be] to ignore an objection of substance”.

Preliminary issue: the late application for the recusal of Chan C.J.
Mr Ravi, counsel for the Appellant, “sprang a surprise” on the Court of Appeal in making a preliminary application for Chan C.J. to recuse himself from “hearing the appeal on the ground of apparent bias” without any notice to the Court or the AG. This was despite the requirement of two weeks’ notice before the hearing of the appeal.

However, the procedural irregularity in the application did not prevent the Court of Appeal from assessing the merits of the application.

The Appellant’s arguments
The Appellant argued that Chan C.J. had an interest in the issue of whether the President has discretion in the clemency process, as he had been the AG advising the President in 2006. This argument was based on two premises. Firstly, the Appellant contended that Chan C.J. must have, in his capacity as AG, given advice to the President that the President has no discretion in the clemency process. This is because the President had said that he had no such discretion in an interview with the local media. Secondly, in the event that Chan C.J. had advised the President that he had no discretion in the clemency process, Chan C.J. would have been wrong with his advice, as the Constitution states that the President does have discretion in exercising the clemency power. Therefore, since Chan C.J. would be put “in [a position of] conflict with any reading of the Constitution that states that the President does have power”, he should be recused from hearing the appeal.

The Court of Appeal’s holding
The Court of Appeal was of the opinion that the attempt to recuse Chan C.J. was not based on credible grounds. Therefore, applying the rule in Locabail, the recusal application was dismissed. Chan C.J. set out the Court’s reasons for dismissal of the application at [17] – [22], and additional supporting reasons were provided by Rajah J.A. and Phang J.A. at [149] – [150].

The Appellant’s first premise
The Appellant’s first premise was rejected due to lack of evidence to support the assertion that Chan C.J. had, during his tenure as AG, given advice to the President that the President had no discretion in exercising the clemency power. In reaching its decision, the Court of Appeal referred to the statements Mr Ravi had made when the recusal application was raised as a preliminary issue at the commencement of the hearing of the appeal. When prompted by Chan C.J. for such evidence, Mr Ravi responded that the fact that the President had mentioned in an interview that he did not have any discretion in exercising the clemency powers “must mean” that Chan C.J. had so advised the President. The Court did not find this to be conclusive evidence that Chan C.J., during his tenure as AG, had in fact given the President such advice. Nonetheless, the Court proceeded to examine the second premise.

The Appellant’s second premise
The Court of Appeal was of the opinion that the legal argument underlying the Appellant’s second premise, viz, the argument that the President could act in his own discretion in exercising the clemency power, was one that was “fundamentally flawed” and “completely unsustainable”. This was essentially linked to the Court’s decision on whether the clemency power under Article 22P of the Constitution is exercised by the President acting in his discretion or whether the President is bound by the advice of the Cabinet in this regard. Chan C.J. was of the opinion that “[i]n our local context, [Article] 22P is not a provision which expressly confers discretionary powers on the President”. Hence, the second premise lacked merit. He further referred to Rajah J.A. and Phang J.A.’s joint judgment at [154] – [181] which “conclusively demonstrated” this point. The learned judges held that the applicant’s arguments on whether the President has discretion in the clemency process were untenable as they contradicted the express wording of Article 22P of the Constitution, the legislative history of the clemency power in Singapore’s jurisdiction, case law on the clemency power, and the nature of the President’s powers under Singapore’s constitutional framework. Hence, the Appellant’s central premise was “flawed in its understanding of both the relevant legislative history as well as the very language of the relevant provisions of the Singapore Constitution”. The Court concluded that the Appellant’s argument, insofar as it was an attempt to “overturn” a fundamental aspect of Singapore’s constitutional order, was merely pursued because it “suited his purpose in the present proceedings”. Since the application for recusal was not based on credible grounds, applying the rule in Locabail, the application was dismissed.

Additional reasons for dismissal of the recusal application
In addition to the reasons given by Chan C.J. addressing the lack of merit in the substance of the applicant’s arguments, Rajah J.A. and Phang J.A. found fault in the timing of and the manner in which the disqualification application had been made. The Court was strongly persuaded by Mr Ravi’s own statement that he “had thought about [the fact that Chan C.J. would preside over the appeal], but … never seriously felt that it would be that serious”, taking it to mean that Mr Ravi did not in fact have concerns that were “as serious as he claimed” regarding Chan C.J.’s hearing of the appeal. Otherwise, he would have made an earlier application, or in a less “dramatic fashion” than he actually did. The learned judges were of the opinion that the application was “calculated to diminish the judicial process and disrupt the hearing of the appeal so that a fresh hearing had to be convened”. This suggested that the application for recusal was motivated by an extraneous purpose. Hence, applying the rule in Locabail, the recusal application was dismissed accordingly.

Clemency process
A grant of clemency or a pardon is the clearance of criminal liability and the cancellation of any prescribed sentence attached to it. It is premised on fundamental moral values of mercy and justice and exists to give relief to convicted persons from sentences that may be overly harsh. In this way, it also serves as a check on the exercise of judicial power by the executive. Historically, the power to grant clemency originated in England as the prerogative of mercy. Since the commission of crimes was seen to be a violation of the King’s peace in his realm, the right to pardon vested in the King himself. However, when England developed into a parliamentary democracy, the Crown only exercised clemency power on the advice of its ministers. With the prevalence of constitutional government, many countries today have specific agencies, usually bodies within the executive government, empowered to exercise clemency power.

In Singapore, the President is empowered to grant a pardon under Art 22P of the Singaporean Constitution. However, in line with the practice in England, he can only do so on the advice of the Cabinet. The relevant article also gives him the power to delay the execution of any sentence or cancel only part of any sentence, as well as impose conditions on the grant of pardon.

Whether the President’s clemency power is subject to judicial review
This issue had not been brought before the court before. Chief Justice (as he then was) Chan Sek Keong held that while the courts may not review the merits of a clemency decision, clemency power was not without any legal restraints. He explained that the courts could review the decision if the power was exercised beyond its legal limits (ultra vires) or for an extraneous purpose (mala fide). He added that there had been constitutional duties placed on Cabinet by Art 22P, and the court can also review cases where the requirements had not been met.

Justiciability
Justiciability refers to the limits to which courts can exercise judicial power over legal issues. Some matters, which are regarded as beyond the court’s ability to provide resolution, are deemed non-justiciable. This means that the court cannot or should not be the authority to resolve the dispute, because the litigation process or the expertise of the judges is unsuitable for the particular issue. Most courts possess a very wide jurisdiction to hear legal disputes, but will decide on their own jurisdiction and may decline to hear an issue, which they feel is non-justiciable.

Issues that are commonly regarded as non-justiciable include “matters of policy or subjective preference, or polycentric public policy issues”. These are seen as better left to democratically elected representatives, who possess the mandate of the people and are thus in a better position to weigh competing interests and to give effect to the will of the people. Similarly, issues affecting international relations have been seen as non-justiciable in Singapore so as to maintain a consistent national position and to avoid embarrassing the other branches of government.

There is no clear definition of what is or is not a justiciable issue, and the courts must decide on each case whether they should have jurisdiction to decide on the issue. This leads to some degree of uncertainty. However, justiciability remains a useful tool to determine the right balance of power between the branches of government and represents recognition of the practical limits on judicial capabilities.

Position in Singapore
In his judgment, Chan Sek Keong CJ gave two reasons supporting his views for the justiciability of the clemency process.

Firstly, all legal powers have legal limits, no matter how “extraordinary” the power is. Chan CJ first highlighted that “the clemency power is a legal power of an extraordinary character.” However, this does not mean that this clemency power is an “extra-legal” power in the sense of being a power beyond any legal constraints of restraints. Quoting the Chng Suan Tze principle that no legal power – including a constitutional power – is beyond the reach of the supervisory jurisdiction of the courts if it is exercised beyond its legal limits (ie, ultra vires the enabling law) or if it is exercised mala fide (ie, for an extraneous purpose), Chan CJ referred to Law Society of Singapore v Tan Guat Neo Phyllis, where it was held that the Chng Suan Tze principle was also applicable to a constitutional power. Therefore, Chan CJ stated that “our courts must have the power to review the clemency power under Art 22P on the same legal basis as that stated in [Phyllis Tan].”

The second reason for the justiciability of the clemency process is to ensure that “the Cabinet … consider[s] impartially and in good faith the Art 22P(2) materials submitted to it before it advises the President on how the clemency power should be exercised”. Chan CJ reasoned that the clemency power should be amenable to judicial review due to the “specific procedural safeguards prescribed by Art 22P for the conduct of the clemency process in death sentence cases”. He further explained:

"“In my view, the requirement that the trial judge’s report, the report of the presiding judge of the appellate court (where there is an appeal) and the Attorney-General’s opinion on the report(s) must be sent to the Cabinet for its consideration necessarily implies a constitutional duty on the Cabinet’s part to consider those materials impartially and in good faith before it advises the President on the exercise of the clemency power.”"

Under Art 22P(2), the Cabinet must have met to consider the offender’s case or consider the Art 22P(2) materials placed before it carefully before determining what advice to give to the President. If done otherwise, the Cabinet would be in breach of Art 22P(2). As such, “[i]f the courts cannot intervene to correct a breach of Art 22P of this nature, the rule of law would be rendered nugatory.”

In this regard, it should be noted that in Singapore, the making of a clemency decision pursuant to Art 22P is now “not a private act of grace from an individual happening to possess power ... [but] a part of the [c]onstitutional scheme”.

In addition, Chan CJ submitted that subjecting the clemency power to judicial review is also “a corollary of the right to life and personal liberty guaranteed by Art 9(1) of the Singapore Constitution, which provides that “[n]o person shall be deprived of his life or personal liberty save in accordance with law”." Chan CJ agreed with what Lord Goff said in Thomas Reckley v Minister of Public Safety and Immigration (No 2)  that “a man is still entitled to his fundamental rights, and in particular to his right to the protection of the law, even after he has been sentenced to death.” Therefore, the clemency power should be subjected to judicial review “not because an offender has any constitutional or legal right or even any expectation with respect to the grant of clemency to him, but because the requirements of Art 22P(2) must be complied with as that is what the law mandates.”

In his judgment, Chan CJ also repeatedly emphasized that an exercise of clemency power confers a gift of life on the offender. “[A] decision not to exercise the clemency power in favour of the offender in a death sentence case does not, in the legal sense, deprive him of his life or personal liberty since he has already been sentenced to death by a court in accordance with law. If clemency is granted to an offender in a death sentence case, it restores to him his life, which the law has already decreed is to be forfeited.”

Position in other countries
Clemency is justiciable in several countries such as England, the Caribbean States,  Canada,   India,   New Zealand and Hong Kong. In these countries, as per administrative law review principles, only the procedural aspect of clemency, and not the merits of the decision, may be reviewed. Exceptionally in Canada,  clemency may be reviewed on its merits. It is not reviewable in Malaysia and Australia.

England
Traditionally, clemency was not reviewable by the courts. This “traditional reluctance to encroach on the prerogative of mercy stems from the fact that in England, this power has been exercised by the Sovereign from time immemorial, and has always been regarded as an essential attribute of sovereignty”. In 1994, the courts held that clemency would be reviewable if it were exercised based on an error of law.

Carribean States
Like in England, clemency was originally not reviewable by courts as “[mercy] begins where legal rights end”. However in 2001, it was held by the Court of Appeal that in light of Jamaica’s international obligations and what natural justice required, clemency was reviewable except on its merits.

Canada
Clemency is justiciable in Canada. Exceptionally in Canada, the merits of the decision and the manner in which it was made can be reviewed for compatibility with the Canadian Charter.

India
It was held by the Supreme Court that clemency is reviewable despite its wide ambit “for no legal power can run unruly … but must keep sensibly to a steady course”. In a later case, the same court set aside an order for clemency which was made based on extraneous and irrelevant grounds.

New Zealand
Clemency is justiciable “at least to the extent of ensuring that elementary standards of fair procedure were followed” in New Zealand.

Hong Kong
Lawfulness, not the merits, of a clemency is justiciable in Hong Kong as the Basic Law of the Hong Kong Administrative Region of the People’s Republic of China did not seek to place the SAR Chief Executive above the law as his prerogative powers were defined and constrained by the Basic Law.

Malaysia
Courts have consistently held that clemency is not justiciable as “the Constitution has empowered the nation's highest executive as the repository of the clemency power, the court cannot intervene and judicial review is excluded by implication”.

Australia
The courts are undecided as to the justiciability of clemency. In Horwitz v Connor, Inspector General of Penal Establishments of Victoria, the Australian High Court held that “no court had the jurisdiction to review the discretion of the Governor in Council in the exercise of the prerogative of mercy". Thus according to Horwitz v Connor, clemency was not justiciable. However in the case of Eastman v Australian Capital Territory, while accepting it was bound by Horwitz v Connor, Lander J stated, “I am not, I think, prevented ... from concluding that the processes [pertaining to the exercise of the prerogative of mercy] ... are subject to judicial review”. Thus suggesting that legality of the clemency decision was reviewable. However, in Australian Capital Territory, the Court of Appeal in the same case took a narrower view and was “not persuaded that they may depart from the decision in Horwitz v Connor”.

Subsequent affirmation and academic views
The justiciability of the clemency process was cited and elaborated on in Mathavakannan s/o Kalimuthu v AG. The case, regarding an application as to the precise interpretation of a sentence of life imprisonment as commuted by then President Ong Teng Cheong, required the court to interpret the President’s commutation order. In doing so, the court referred to Yong Vui Kong’s holding that the “procedural safeguards vis-à-vis the exercise of clemency power were amenable to judicial review,” and reasoned that the “logical prior step” to this would likely “involve an interpretation of the clemency order itself.”

In Ramalingam Ravinthran v AG, Yong Vui Kong was also cited. It was observed that CJ Chan, whilst discussing the issue of justiciability of the clemency process, held that “until the contrary is shown, the courts… should proceed on the basis of presumptive legality…" and therefore, the same principle should apply in the context of prosecutorial decisions. Hence, the court applied “a presumption of constitutionality in the prosecutorial context."

Lastly, Professor Thio Li Ann raised the analysis of the issue in Yong Vui Kong as an example of how courts have become increasingly willing to consider judicial review. Speaking for a Straits Times Article, she brought up the example of the court’s “excursion of the law in jurisdictions from Australia to the Caribbean states” and remarked that:

""In the past, it would seem that the courts took a simplistic, 'no, cannot review' (approach) over some decisions. Nowadays, when it comes to certain executive powers, it is clear that the courts will review to some extent.""

The Appellant’s argument


The Appellant’s argument was that the administrative law rules of natural justice apply to the clemency process. This argument centred on the premise that the clemency power under Art 22P of the Constitution was justiciable, given the principle of legality laid down by the Court of Appeal in Chng Suan Tze v Minister for Home Affairs (“Chng Suan Tze”). In that case, it was held that “[a]ll power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power.” By corollary, it was argued that the clemency power was “likewise subject to judicial review if the person or body of persons on whom this power is conferred (“the ultimate authority”) has acted illegally or outside the scope of the power, or has made a decision (pursuant to the power) that is tainted by a reasonable apprehension of bias.” As such, “apparent bias in the course of the clemency process would vitiate the clemency decision made at the end of that process.” The Appellant contended that the term “law” in Art 9(1) of the Constitution incorporated the administrative law rules of natural justice, and, hence, the clemency process must comply with those rules. He relied on the case of Ong Ah Chuan v Public Prosecutor ("Ong Ah Chuan") to as an authority for this. In particular, he cited Lord Diplock’s pronouncement on the “meaning of the word “law” as used in the then equivalent of Arts 9(1) and 12(1) of the Constitution.

The Respondent’s argument
The Respondent submitted that administrative law rules of natural justice do not apply to the clemency process since clemency power is not justiciable, due to its extraordinary nature of being neither a judicial nor quasi-judicial decision. The Appellant relied on the case of Ch’ng Poh v The Chief Executive of the Hong Kong Special Administrative Region, which held that it would be wrong in principle for the court to impose judicial or quasi-judicial procedures and attitudes on what was in essence an executive act.

Another reason advanced was since the AG was both the person who initiated the criminal proceedings as well as the one who was required to give his opinion (under Article 22P) on the judgment to the Cabinet, the rule against apparent bias could not apply to the clemency process as there would undoubtedly be some bias on his part.

The Respondent further submitted that even if the clemency process is subject to procedural fairness, the only procedural requirements are those set out in Article 22P. To superimpose the administrative law rules of natural justice onto the clemency process would result in the creation of new constitutional rights within the clemency regime by judicial pronouncement.

The Court of Appeal's holding
The Court of Appeal eventually dismissed the application of apparent bias. Chan C.J. set out the Court’s reasons for dismissal of the application at [99] – [127], and additional supporting reasons were provided by Phang J.A. and Rajah J.A. at [190] – [191].

Preliminary issue: the conceptual distinction between the administrative law rules of natural justice and the Ong Ah Chuan rules of natural justice
In his judgment, Chan C.J. cited Lord Diplock’s formulation of ‘law’ in Ong Ah Chuan, stating that in a Constitution founded on the Westminster model, references to "law" refer to "a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation in Singapore at the commencement of the Constitution.” Although Chan C.J. went on to draw a conceptual distinction between the rules of natural justice as described in Ong Ah Chuan (“fundamental rules of natural justice”) and the administrative law rules of natural justice, he concluded that the two categories of rules “are the same in nature and function, except that they operate at different levels of our legal order.” The Ong Ah Chuan rules of natural justice serve to “invalidate legislation on the ground of unconstitutionality”, and the administrative rules serve to “invalidate administrative decisions on the ground of administrative law principles”. Since the administrative law rules of natural justice were part of the common law of Singapore prior to the commencement of the Singapore Constitution, Chan C.J. held the view that the administrative law rules of natural justice should apply to the clemency process, in so far as they are not inconsistent with the words of the Constitution.

Whether the rule against bias applies to the clemency process
Chan C.J. rejected the Respondent’s argument because he found that there was no conflict of interest between the AG’s exercise of prosecutorial discretion and him giving his opinion on whether there is a case for granting under Article 22P. These were separate and distinct inquiries. In any event, the issue of bias was more relevant to the ultimate authority in the clemency process. Chan C.J. was of the opinion that, in the clemency regime, be it the Cabinet or President, it is possible that one party may be put in a position of conflict of interest with respect to the clemency decision to be made. The rule against bias would therefore still apply, but only to the ultimate authority in the clemency process. Any such claim would have to be supported by sufficient evidence.

In addition to Chan C.J.’s holding on this issue, Rajah J.A. and Phang J.A. opined that “given the nature of the clemency power, the Cabinet… cannot be held to the same standard of impartiality and objectivity as that applicable to a court of law or a tribunal exercising a quasi-judicial function”. Therefore, a higher threshold had to be crossed before the Cabinet in the exercise of clemency power could be affected by apparent bias. The Cabinet was only required to abide by the process set out in Article 22P, and give its consideration fairly and objectively to the matter at hand taking into account the purpose of the power of clemency. The judges also added that the grant of clemency was an act of grace on part of the ultimate authority, and should be seen in light of this fact. Therefore, the Cabinet, in advising the President on the grant of clemency in any case, is entitled to take into account the public policy and legislative policy considerations underpinning the nature of offence in question. The Cabinet should not ignore these policy considerations, and its conduct in giving effect to such considerations when advising the President to withhold clemency in any case, could not amount to actual or apparent bias.

Whether the hearing rule applies to the clemency process
However, the hearing rule was held to be inconsistent with the position reflected by the Constitution if the rule were to be applied to the clemency process. The clemency process was derived from the prerogative of mercy, a common law power. At this common law position, offenders did not possess the right to be heard during the clemency process. In Chan C.J.’s view, this position remained the same even after clemency power became a constitutional one in Singapore. The absence of any provision in Article 22P for an offender to be heard during the clemency process clearly reflects this position. Rajah J.A. and Phang J.A. agreed with Chan C.J. that the hearing rule did not apply to the clemency process.

The law on apparent bias
The state of law in Singapore with regard to the test for apparent bias is unclear.

In Tang Kin Wah v Traditional Chinese Medicine Practitioners Board, Phang J.C. (as he then was) identified two formulations of the test for apparent bias: the reasonable suspicion of bias test, and the real likelihood of bias test. He also noted that there were local cases which treated the tests interchangeably, such as Re Singh Kalpanath and Re Chuang Wei Ping. Under the reasonable suspicion of bias test, the inquiry is whether a reasonable and right-thinking person knowing the relevant facts would have any reasonable suspicion that in that particular case, a fair trial for the appellant was not possible. For the real likelihood of bias test, the courts would apply the test of whether “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

However, Phang J.C. concluded that there was no difference in substance between both tests since both were premised on an objective basis and the elements contained in both tests were not irreconcilable. Further, he was of the opinion that the Court of Appeal should provide a definite answer on which was the correct test to be applied. It should be noted that Phang J.C.’s comments were only obiter.

In the subsequent case of Re Shankar Alan s/o Anant Kulkami, Menon J.C. (as he then was) took a different position. He analysed the differences between the tests and considered it an over-simplification to conclude that both tests were identical. In his view, the reasonable suspicion of bias test was “the most appropriate for protecting the appearance of impartiality” while the real likelihood of bias test placed emphasis on the “court’s view of the facts”. He concluded that the reasonable suspicion test was to be applied, and that the question was whether a reasonable member of the public without any inside knowledge could harbour a reasonable suspicion of bias, even though the court itself thought that there was no real danger of bias on the fact.

The Court of Appeal in Yong Vui Kong was silent on the test to use for apparent bias since neither counsel made submissions to that effect.

The Appellant’s argument
The second argument raised by the appellant was that a public statement made by the Law Minister, relating to the mandatory death penalty for serious drug trafficking offences, created a reasonable suspicion of bias by reason of predetermination. He argued that the statements which were reported in the TODAY newspaper indicated that the Law Minister, as well as the other members of the Cabinet, had predetermined the advice to be given to the President.

The statements in question referred to by the Appellant as reported in the 10 May 2010 edition of TODAY are as follows:

"[The Law Minister] was replying to a resident during a dialogue session at Siglap South Community Centre who asked if there would be changes on this policy [ie, the mandatory death penalty for serious drug trafficking offences], in light of the case of [the Appellant]. ... ‘You save one life here, but 10 other lives will be gone. What will your choice be?’ If [the Appellant] escapes the death penalty, drug barons will think the signal is that young and vulnerable traffickers will be spared and can be used as drug mules, argued [the Law Minister]."

The material statements from the 15 May 2010 edition of TODAY are as follows:

"The resident had asked if [the Appellant]’s case would affect Singapore’s laws on the mandatory death penalty.

[The Law Minister] replied: ‘[The Appellant] (who was sentenced to hang for trafficking in 47g of heroin) is young. But if we say, ‘We let you go’, what’s the signal we’re sending? ‘We’re sending a signal to all drug barons out there: Just make sure you choose a victim who’s young or a mother of a young child and use them as the people to carry drugs into Singapore.’"

The Respondent's argument
The Respondent’s position was that since the clemency power was not justiciable, apparent bias was not a ground which could be invoked to challenge the clemency process in any given case. Therefore, there was no submission made with respect to the issue of the Law Minister's comments giving rise to "a reasonable suspicion of bias by reason of predetermination".

The Court of Appeal’s holding
Chan C.J. held that the Appellant’s arguments had no merit, and the clemency process could not have been tainted by “a reasonable suspicion of bias by reason of predetermination” due to the Law Minister's statements. He dismissed the contention on the following four grounds. Firstly, if the Law Minister’s statements were read “in their proper context and in good faith”, it was clear that the Law Minister was simply stating the government’s policy of adopting a tough approach to serious drug trafficking offences. His statements were not, in any way, indicative that the Appellant should not be granted clemency.

Secondly, as a Minister, he cannot be held to the same standards as that of a judicial officer or quasi-judicial officer. Chan C.J. cited Minister for Immigration and Multicultural Affairs v Jia Legeng (“Jia Legeng”) in support of his decision to rule that the Law Minister’s statements should not be regarded as evidence of bias. Chan C.J. drew a parallel between the case before him and Jia Legeng, and held that holding the minister to the same standards as a judicial or quasi-judicial officer would unduly restrain a “minister in his or her ministerial capacity” to “speak freely about government policy… without compromising on his or her right and obligation to exercise a power conferred to decide a matter under current law.”

Thirdly, even if the Law Minister’s words could be taken to indicate his predetermination not to grant clemency to the Appellant, the Appellant failed to explain how this same predetermination could be ascribed to the other 20 Ministers that constitute the Cabinet. While all Cabinet decisions are made collectively, each Minister speaks for himself when discussing what advice should be given to the President regarding a clemency decision. There was no evidence to show that the Law Minister was speaking on behalf of the rest.

Lastly, if the Appellant’s arguments were accepted, it would mean that whatever a Cabinet Minister says about government policy on the death penalty would lead to the entire Cabinet being disqualified from advising the President under Article 22P(2). This would effectively result in the suspension of the death sentence which, in the Court's opinion, was “a consequence too absurd to contemplate”.

Treatment of Yong Vui Kong by subsequent cases
In Manjit Singh s/o Kirpal Singh and another v Attorney-General, Yong Vui Kong was cited as authority on the point of law that an application for a judge to recuse himself must be based on credible grounds.

The case of Mathavakannan s/o Kalimuthu v Attorney-General cited Yong Vui Kong as authority that the procedural safeguards vis-à-vis the exercise of clemency power were amenable to judicial review. The case, however, did not relate to bias on the part of the Cabinet.