In the Court of Appeal judgment of Wei Fengpin v Raymond Low Tuck Loong and ors [2021] SGCA 115 (the “Judgment”), the Court addressed whether appeals from the General Division of the High Court (the “General Division”) should properly be made to the Court of Appeal (the “Court of Appeal“) or to the Appellate Division of the High Court (the “Appellate Division“). The Judgment also examined the scenarios where appeals may be transferred from the Appellate Division to the Court of Appeal and vice versa, whether on the Court’s own motion or in connection with a party’s application. A copy of the Judgment is available here. It is hoped that the following guidelines would be of general assistance in determining if an appeal against a decision of the General Division ought to be made to the Appellate Division or the Court of Appeal.
Please note that the contents of this commentary are limited to civil proceedings only and are premised on the assumption that the latest version of the Supreme Court of Judicature Act (Cap. 322) (the “SCJA”) applies. For convenience, references to “Schedules” shall be understood to refer to the relevant Schedules to the SCJA.
A.Appealing against a decision of the General Division of the High Court (the “General Division”)
(I)Decisions by the General Division
1.First, Section 29 SCJA provides that no appeal lies against decisions of the General Division where the said decision falls within any of the cases identified in Paragraph 1 of the Fourth Schedule (the “Fourth Schedule”).
2.Second, and assuming that an appeal is not barred by virtue of Section 29 SCJA, this does not mean that a party has an automatic right of appeal against decisions of the General Division.
3.In this respect, where the decision of the General Division falls within the classes or descriptions of matters described in the Fifth Schedule, then (subject to certain statutory exceptions), that decision may only be appealed against provided leave to appeal is first obtained.
B.The Proper Course
(I)The Default Position
4.On the assumption that the judgment of the General Division is appealable as of right or, where appealable with leave, such leave is obtained, the default position is that the appeal is made to the Appellate Division unless the appeal falls within one of the prescribed grounds in the Sixth Schedule. If so, the appeal must be made to the Court of Appeal.
(II)Appeals heard by the Court of Appeal
5.Paragraphs 1(a) to 1(e) of the Sixth Schedule provides that appeals arising from cases relating to the following areas of law – even if the appeal does not raise any issue relating to that area of law – must be made to the Court of Appeal (the “Specified Areas”):
(a)Constitutional or administrative law;
(b)Contempt of court;
(c)The law of arbitration;
(d)The insolvency, restructuring or dissolution of a corporation, limited liability partnership or sub-fund of a variable capital company; and
(e)The law of patents.
6.The other two categories of appeals heard by the Court of Appeal relate to (1) specific types of decisions or orders (regardless of the area of law) and (2) appeals under specific provisions of written law, (non-exhaustive) examples of which are reproduced below:
(a)Appeals against decisions of the Singapore International Commercial Court;
(b)Appeals against decisions or orders of a Judge sitting in the General Division made under the Parliamentary Elections Act (Cap. 218);
(c)Appeals against judgments or orders in an action brought under section 47(8) of the Presidential Elections Act (Cap. 240A); and
(d)Any written law that specifically provides for the appeal to lie to the Court of Appeal.
C.Commentary
(I)The Distinction Between Case and Issue
7.At first blush, the framework seems straightforward. However, as emphasised in the Judgment, the wording of Paragraphs 1(a) to 1(e) of the Sixth Schedule means that appeals from cases involving the Specified Areas must be made to the Court of Appeal even where the appeal itself does not raise any issue relating to that area of law.
8.As the Honourable Steven Chong JCA observed at [32] of the Judgment:
“…paragraph 1(d) of the Sixth Schedule to the SCJA draws a distinction between a “case” and an “issue”. An appeal can fall within para 1(d) of the Sixth Schedule to the SCJA where the appeal arises from a case relating to insolvency, even if the appeal does not raise any issue relating to the law of insolvency. In order to properly understand the distinction between “case” and “issue”, it is useful to note that the same distinction is repeated in paras 1(a) to (e) of the Sixth Schedule to the SCJA. The intention is to carve out specific categories or types of proceedings identified in paras 1(a) to (e) to be heard by the Court of Appeal. In the case of para 1(d), it covers, inter alia, any appeal “relating to the insolvency, restructuring or dissolution of a corporation … (even if the appeal does not raise any issue relating to the law concerning the insolvency, restructuring or dissolution …)”. In my view, it is deliberately worded in this manner to ensure that any case relating to insolvency should by default be made to the Court of Appeal. Thus, in a situation where the appeal concerns an issue as to whether a winding up order (which by default falls within para 1 (d)) should be set aside on account of grounds such as abuse of process or nondisclosure of material facts, which are strictly not issues relating to insolvency, such an appeal would nonetheless fall within para 1(d) of the Sixth Schedule to the SCJA because it is an appeal which arises from a case relating to the insolvency of the company.”
(emphasis added)
9.Consequently, the area(s) of law engaged in the underlying case may be determinative as to whether the appeal should be made to the AD or the Court of Appeal, notwithstanding that the subject matter of the appeal does not raise any issues relating to the Specified Areas.
(I)Rationale of the Appeals Framework
10.An instinctive (and unfounded) reaction to such an approach is that it prioritises form over substance.
11.This is because the legislative scheme should be considered in the round, particularly as the Court of Appeal is empowered to transfer, inter alia, any appeal against a decision made by the General Division to the Appellate Division under Section 29E(1) and Section 29E(2)(a) SCJA.
12.The Court of Appeal’s power to transfer an appeal to the Appellate Division is by no means unfettered. On the contrary, Section 29E(3) SCJA expressly requires the Court of Appeal to have regard to the ROC (specifically the matters specified in Order 57, Rule 10A(1)(a), (b) and (c)) when exercising its power to transfer an appeal to the Appellate Division under Section 20E(1) SCJA. As of the date of writing, these such matters are:
(a)Whether the appeal was made to the Court of Appeal in accordance with section 29C SCJA;
(b)None of the legal issues raised on appeal engage any of the matters set out in the Sixth Schedule; and/or
(c)Whether all legal issues raised on appeal in relation to the matters set out in the Sixth Schedule to that Act relate to issues of settled law.
13.In this author’s view, Order 57, Rules 10A(1)(b) and (c) ROC are particularly crucial as they encapsulate the legislative intention of the appeals framework.
14.In this respect, even if an appeal must be made – in the first instance – to the Court of Appeal by virtue of the Sixth Schedule, the Court of Appeal may nonetheless transfer the appeal to the Appellate Division where, inter alia, the Court of Appeal is of the view that none of the legal principles raised on appeal:
(a)Engage any matters under the Sixth Schedule; and/or
(b)Are novel in nature and/or have not been the subject of authoritative judicial pronouncement.
15.The Court of Appeal is therefore empowered to act as its own filter, even in relation to appeals falling within the Sixth Schedule, to ensure that only applicable appeals raising relevant (and undecided) legal issues should be heard by it.
16.A difficulty with the present approach is that appeals concerning matters in the Sixth Schedule would have to be made to the Court of Appeal by default, with the Court of Appeal then subsequently determining if the appeal ought to be transferred to the Appellate Division.
17.While the Court of Appeal is ultimately best placed to determine whether a qualifying appeal ought to be heard by it, it is foreseeable that the process of “taking in and then sieving out” would take up time and resources.
*This article and its contents (the “Article”) represent the views, observations or commentary of the author alone from a Singapore law perspective and are subject to copyright protection under the laws of the Republic of Singapore (as may from time to time be amended). Please note that whilst the contents of the Article are accurate to the best of the author’s knowledge and belief at the time of writing, the Article is intended for academic reference and for the purpose of general discussion on the relevant subject matter only. Nothing in the Article should be construed (and is not intended) as general or specific legal advice and the reader is advised to seek independent and specific legal advice. No part of this article may be reproduced, licensed, sold, published, transmitted, modified, adapted, publicly displayed and/or broadcast (including storage in any medium by electronic means whether or not transiently for any purpose save as permitted herein) without the prior written permission of the author. All the author’s rights are expressly reserved and nothing herein shall be construed as a waiver thereof.
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