SUBORDINATE COURTS (AMENDMENT) BILL

SUBORDINATE COURTS (AMENDMENT) BILL: Order for Second Reading read.

4.55 pm

Assoc. Prof. Ho Peng Kee: Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

Sir, as is the case for the amendments to the Supreme Court of Judicature Act (SCJA), which I have just taken the House through, the last major review of the Subordinate Courts Act (SCA) was also in 1993. The amendments contained in this Bill also arose from the recommendations of the same two Reports which I had mentioned earlier.

Sir, the key amendment rationalises the civil jurisdiction of the Subordinate Courts. The remaining amendments are mainly housekeeping in nature, with some seeking to clarify existing judicial practice.

Sir, on the rationalisation of civil jurisdiction of the Subordinate Courts: currently, the Act limits the types of cases which the Subordinate Courts can

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hear in two ways. First, by the value of the dispute which is $250,000 for the District Court and $60,000 for the Magistrates’ Court and, second, by the legal nature of the dispute.

With respect to the legal nature of the dispute, currently, the District Court and Magistrates’ Court can only hear claims in contract and tort – what lawyers call "common law actions" – and certain types of actions in equity. This means that the Subordinates Courts cannot hear restitution-type cases like money had and received, and equity-type actions like breach of fiduciary duties or actions for undue influence, even when the amount in dispute is within the Courts’ monetary limits. Sir, this is the case even though these types of actions are available in common law and equity. There are also limits to the types of remedies they can grant; for example, the Magistrates’ Court currently cannot grant injunctions.

Sir, these limits on the legal nature of the dispute create practical difficulties for litigants who are forced to go to the High Court when the actions can rightfully be commenced in the Subordinate Courts. It means higher costs for the litigants even though the value of their claim is within the Subordinate Courts’ monetary limits.

Moreover, there is no reason why the cases that the Subordinate Courts can hear should be limited by what are essentially only technical differences in the legal nature of the dispute. Hence, clauses 2 and 14 of the Bill amend sections 19 and 22 to allow the District Court and the Magistrates’ Court to hear all types of actions and remedies, subject only to their respective monetary limits. For the Magistrates’ Court, a further qualification is that the Magistrates’ Court will not have jurisdiction over claims which are exclusively non-monetary in nature such as a claim seeking delivery of goods.

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Sir, with these amendments in place, a litigant who wishes to commence an action will no longer need to be concerned with the legal nature of his dispute when deciding in which Court – that is the High Court, District Court or Magistrates’ Court – to file his claim. Instead, the main determining factor would be the value of his claim. This is more straightforward and efficient.

Clause 14 also amends section 52 to give the Magistrates’ Court the power to grant injunctions, albeit not in cases involving exclusively non-monetary claims, and to award interest. We have also taken the opportunity to clarify that the jurisdiction of the Magistrates’ Court, as with other civil courts, is established by service of process.

Next, there are three amendments which clarify certain aspects of judicial practice.

First, clauses 9, 12, 13 and 14 amend sections 31, 50, 51 and 52 to clarify that the District Court and Magistrates’ Court have the power, in both civil and criminal matters, to order persons who are party to proceedings to undergo medical examination if the physical or mental condition of that person is relevant to the proceedings.

Next, clause 15 carries the same amendments as clause 12 of the Supreme Court of Judicature (Amendment) Bill, namely to empower the Chief Justice to grant approval for judicial officers to hold other offices of emolument and to make it clear that judicial officers may be appointed to sit on judicial tribunals established outside of the SCJA and SCA, such as the Military Court of Appeal and the Industrial Arbitration Court. In the context of the Subordinate Courts, as I have explained previously, this amendment serves to clarify the recent practice of employing ad hoc judges who may be

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practitioners or academics. Unlike judicial officers who hold their appointments on a full-time basis, these ad hoc judges are appointed for a fixed term or to hear specific cases.

And, finally, Sir, clause 16 clarifies that the current judicial immunity clause in the Subordinate Courts Act also covers a judicial officer conducting mediation and other forms of alternative dispute resolution. This amendment is added because a recent High Court decision held that a Court Dispute Resolution settlement judge does not exercise judicial power when he carries out mediatory functions, thus creating a lacuna in terms of the extent of immunity protection accorded to such a settlement judge. This amendment rectifies this.

Sir, I beg to move.

Question proposed.

5.00 pm

Ms Sylvia Lim: Sir, I have a concern about the Bill and this relates to the wider powers given to the Magistrates and whether the qualifications of Magistrates should therefore be raised.

Sir, under the existing law, the Magistrate hears several cases where the subject matter is worth $60,000 or less. While this remains unchanged by the Bill, clause 14 provides that the Magistrates' Court will now have powers to make all orders which the High Court Judge can make. For instance, the new section 52(1B) provides that the Magistrates' Court can order injunctions and make binding declarations of rights, just as the High Court can. As the Senior Minister of State mentioned earlier, these are additional powers which the Magistrates' Court currently does not have. Granting such orders is not straightforward. For instance, an injunction is a court order to the defendant to do an act or not to do an act, which can have irreversible

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consequences on the parties. In deciding whether or not to grant an injunction, the Court has to exercise discretion and take into consideration whether such a drastic order is necessary as opposed to simply ordering the defendant to pay a sum of money to the plaintiff.

This change, Sir, comes on top of several changes in recent years to make the Magistrate’s role more onerous. For instance, in 1998, a controversial amendment was made to the Supreme Court of Judicature Act to restrict appeals from the Subordinate Courts in cases which involved $50,000 or less. Such appeals would only be allowed if the Courts gave permission. This meant that most final judgments in the Magistrates' Court cases became un-appealable as of right, since a Magistrates' Court jurisdiction only extended to hearing cases worth up to $60,000. Sir, I spoke about this earlier under the Supreme Court of Judicature (Amendment) Bill. A wrong decision thus runs the risk of remaining uncorrected, and injustice done. Since this policy of limited appeals is still in force, it is even more incumbent upon us to ensure that our Magistrates are of the necessary calibre and experience to make sound and confident decisions in the first instance.

In addition, under the amendments to the Criminal Procedure Code passed in May this year, the hearing and sentencing jurisdiction of Magistrates in criminal cases have also been increased. The Magistrates' Court’s jurisdiction is now to hear cases punishable with five years’ imprisonment, up from three years; and its sentencing power has also been increased from ordering two years’ jail to three years’ jail. The totality of the above changes is to make the role of Magistrates far more onerous. Given this greater responsibility, I believe it is time to consider raising the qualifying criteria to become a Magistrate. Under section 10 of the Subordinate Courts Act, a person is qualified to be a Magistrate so long as he

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has been a qualified person for one year, meaning that one year has passed since he graduated from a recognised law school. This low threshold might have been appropriate in the past with their more limited role. With the developments since then, it is appropriate to re-consider the qualifying criteria to ensure that litigants have greater confidence in the system.

Sir, in this regard, I cannot help but quote the observations of the Senior Minister of State himself who spoke in 1993 as a backbencher on this very issue. He noted that some Singaporeans were surprised that some of our Deputy Registrars and Magistrates were relatively young. And I quote:

"In these young hands lies the power to decide the commercial and personal fate of fellow Singaporeans. Dispensation of justice and application of the law do not take place in a vacuum but in the context of Singapore's social milieu. Not only is legal knowledge important but also wisdom that comes from experience in dealing with matters of the world."

Would the Government look into this important issue?

Assoc. Prof. Ho Peng Kee: I thank Ms Sylvia Lim for speaking on the Bill and for quoting me. Basically the core of her argument is that the minimum one year qualification for Magistrates should be raised in view of the increased responsibilities. It is true, sometimes words do come back to haunt us [ Laughter ]. But happily not this time because just as I was convinced by the very convincing answer by the then Minister for Law in 1993, I hope that likewise Ms Lim's concerns will be assuaged by my response.

Now, the key point here to note, firstly, is that the one-year minimum qualification criterion is precisely that – a minimum requirement. A good analogy is

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the appointment of High Court Judges where the minimum requirement is 10 years' experience. Yet, no one with only 10 years has ever been appointed as a High Court Judge. Similarly, the Subordinate Court's practice is to appoint persons with longer experience and good academic qualifications as Magistrates. Between 2007 and 2010, four legal service officers were posted to the Subordinate Courts and appointed as Magistrates. At the time of joining the Subordinate Courts, their average experience was 10 years, even though the minimum requirement is only one year; and more generally, currently the average age of the Subordinate Court's judicial officers is about 45 years. Of course, these are both District Judges and Magistrates. The most junior officer is 31 years old with eight years of experience. Sir, obviously, what I alluded to in my speech in 1993 about the younger Magistrates – I think they must all have grown up, or at least have been replaced by older Magistrates. This actually shows in the enhancement of the quality of the Subordinate Courts.

I am told that before a judicial officer is allowed to conduct a hearing on his own, he has to undergo an intensive interview by the Chief District Judge and a Senior District Judge to ensure that he is legally and professionally competent. The expertise of the judicial officers is further enhanced by ensuring that there is specialisation of work. Also, after their appointment as judicial officers, there is continuing judicial education which includes a structured in-house programme, overseas training as well as post-graduate studies for some. This ensures that our judicial officers including the Magistrates keep up to date with developments in law and procedures. I also understand that they have mentoring programmes in relation to communication and court craft skills. That the Subordinate Courts is committed to having a world-class bench is also evidenced by the fact that judicial

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training in the Subordinate Courts has been institutionalised by the establishment of a Strategic Planning and Training Division; and indeed this is one reason why our Subordinate Courts continue to blaze the trail internationally signified by participation, for example, with several reputed international agencies in formulating an international framework for court excellence – this was in the papers recently – launched here in Singapore at the Asia-Pacific Courts Conference by the Chief Justice. Members, who are in practice, I am sure, know of and probably refer to, the many books written by our Subordinate Court Judges on civil procedure, family law, sentencing practice and assessment of damages. I say this to assure Ms Lim that, indeed she is right – the responsibilities of a Magistrate have increasingly gone up over the years – whilst the minimum requirement is one year in practice, much more experienced people are appointed. Also, it is not just a matter of appointment, because when they become judicial officers in Sub-Courts, there is continuing education to equip them to be good judicial officers.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [Assoc. Prof. Ho Peng Kee].

Bill considered in Committee; reported without amendment; read a Third time and passed.