Koh Lay Seong & Sons Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri

Case Significance

Illustrates that leave to commence judicial review under Order 53 requires a reviewable decision or a clear refusal to act, and that an authority's mere failure to reply to a letter is not itself amenable to review.

This High Court decision concerns an application for leave to commence judicial review proceedings under Order 53 of the Rules of Court 2012, and what will count as a reviewable decision or omission. The applicant company sought leave to challenge, by certiorari, a decision it said the respondent, the Director General of Inland Revenue, was deemed to have made, together with declarations that tax collected under section 4C of the Income Tax Act 1967 was unconstitutional — relying on the Federal Court's decision in Wiramuda (M) Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri — and that a substantial sum collected under that provision should be refunded. The threshold question was whether a letter from the applicant to the respondent, expressing that it looked forward to a favourable reply by a certain date, and the respondent's non-reply, amounted to a decision or an omission amenable to judicial review, so as to open the door to leave under Order 53 rule 2(4). The court held that it did not. It reasoned that there must be clear evidence of a refusal to act before an applicant can seek leave to commence judicial review, and that there was nothing before it to demonstrate that the respondent had omitted or refused to act. To hold otherwise, the court observed, would open the floodgates to applicants commencing judicial review without evidence of any omission by an authority to act. Accordingly, the court dismissed the application for leave to commence judicial review, with no order as to costs. The judgment illustrates that a mere non-reply to a letter is not, without clear evidence of a refusal to act, a decision or omission that can be judicially reviewed. The court added that judicial review is directed at decisions and omissions carrying legal consequences, and that treating a routine, unanswered piece of correspondence as a reviewable omission would distort the remedy and burden the courts with premature applications.