The Executive branch of the Singapore government has certain statutory powers to protect Singapore from criminal threats. For example, the Minister of Home Affairs (the “Minister”) has the power, where necessary, to detain without trial a person associated with criminal activity. In Tan Seet Eng v Attorney- General [2015] SGCA 59, the Court of Appeal had to consider the limits of this power, and how the court should review its exercise.

Notably, the Court of Appeal ordered that the detainee in the present case should be freed as his detention was unlawful. The detainee was successfully represented by Hamidul Haq, Thong Chee Kun, Istyana Ibrahim and Ho Lifen of Rajah & Tann Singapore LLP.

Brief Facts

Under section 30 of the Criminal Law (Temporary Provisions) Act (“CLTPA”), the Minister may order that a person be detained without trial where that person has been associated with activities of a criminal nature, and the Minister deems it necessary in the interests of public safety, peace, and good order. This is subject to the consent of the Public Prosecutor.

In this case, the Appellant had been arrested for his alleged involvement in global football match-fixing activities. The Minister then served an order under section 30 of the CLTPA requiring the Appellant’s detention for 12 months. The order was on the grounds of the Appellant allegedly being the leader and financer of a global match-fixing syndicate operating from Singapore.

The Appellant sought an Order for Review of Detention (“ORD”), submitting that his detention was illegal, irrational, and procedurally improper. While the High Court dismissed the application, the Court of Appeal agreed with the Appellant that his detention was illegal, and granted his ORD.

Holding of the Court of Appeal

In reaching its decision, the Court of Appeal considered:

  1. What is the appropriate approach when dealing with an ORD application?
  2. Was the Appellant’s detention unlawful under this approach?

ORD applications

The Minister’s power under the CLTPA is not without limitation. It is the responsibility of the Judiciary to review the decision upon an ORD application to ensure that the Minister has exercised his discretion within the scope of the provision.

The court’s review is objective in nature, meaning that the court must consider questions of whether the Minister did in fact have the power to act and whether there was a reasonable basis for making his decision.

As for the scope of review, for an ORD application regarding a section 30 decision, the court is limited to the traditional grounds of judicial review, namely, illegality, irrationality, or procedural impropriety.

Detention under section 30 of the CLTPA

Applying the above approach, the Court of Appeal found that  the Appellant’s detention was in  fact unlawful.

The court first examined the scope of the CLTPA:

  1. Prosecution in court would remain the normal course for dealing with criminals; this would only be departed from as a last resort where the normal legal processes could not be relied upon.
  2. The CLTPA does not cover all offences; it only covers criminal activities where the normal legal processes are insufficient due to threats of harm against witnesses or their families
  3. The detainee must have been involved in a criminal activity of a sufficiently serious nature.
  4. The criminal activity must harm the public safety, peace, and good order in Singapore.

​The court examined the grounds relied upon by the Minister in issuing the section 30 detention order against the Appellant, and found that these grounds did not establish any criminal activity falling within the scope of the CLTPA.

Importantly, the court found that the only connections between the grounds of detention and Singapore were that the Appellant ran the syndicate from Singapore and recruited some runners in Singapore. This in itself did not have any bearing on the public safety, peace, and good order within Singapore. The matches fixed took place abroad, there was nothing to suggest overseas criminal syndicates which might take root in Singapore, and there was no evidence of witnesses being intimidated against testifying.

Therefore, the Appellant’s detention was unlawful as it was beyond of the scope of the power vested in the Minister under section 30 of the CLTPA.

Concluding Words

The ordinary criminal process seeks to balance the protection of the community with the rights of the accused. However, in certain circumstances, the authorities may perceive the ordinary criminal process as being insufficient to deal with the threat at hand, and issue preventive detention orders in the interests of protecting the public safety, peace and good order of the nation.

Detention orders do not, however, give a free hand in putting away alleged criminals or threats. Detention orders must be issued within the scope of their respective statutory provisions, and the court is entitled to review the decisions to ensure that the scope of power has not been overstepped.