Arun Kaliamurthy and others v Public Prosecutor and another matter

Tan Siong Thye JC:

[1] The applicants (“the accused persons”) in Criminal Motion No 32 of 2014 (“CM 32”) are five Indian nationals who face criminal charges of rioting under the Penal Code (Cap 224, 2008 Rev Ed) for their participation in the riot at Little India on 8 December 2013. They are represented by their counsel, Mr Ravi s/o Madasamy (“Mr Ravi”). Due to the unprecedented scale of the riot, the Minister for Home Affairs appointed a Committee of Inquiry (“COI”) under s 9 of the Inquiries Act (Cap 139A, 2008 Rev Ed) to inquire into events surrounding the riot on 8 December 2013. For the purposes of the inquiry, the COI conducted a hearing which commenced on 19 February 2014 and concluded on 26 March 2014 (“the COI hearing”).

[2] On 2 April 2014, Mr Ravi filed CM 32 seeking to quash the criminal charges faced by the accused persons. This was on the basis that the inquiry violated the sub judice rule as it would prejudice the accused persons’ rights to a fair trial. The prosecution subsequently filed Criminal Motion No 36 of 2014 (“CM 36”) to strike out CM 32 on the grounds that CM 32 was frivolous and vexatious and that it was an abuse of the court process. Mr Ravi then applied to withdraw CM 32 on 14 April 2014 and, in response, the prosecution applied to withdraw CM 36 on 23 April 2014.

(a) Whether s 357(1) can be interpreted as implicitly allowing this court to order a defence counsel to pay the costs of the prosecution directly in the absence of a costs order being made against his client; and

(b) Whether this court has the inherent power to make such personal costs orders against a defence counsel even if it cannot do so under s 357(1).

[7] Nonetheless, the purposive approach to statutory interpretation is not confined to a provision that is ambiguous or inconsistent: Planmarine AG v Maritime and Port Authority of Singapore [1999] 1 SLR(R) 669 at [22]. I must still consider the object and purpose of s 357(1) when interpreting it pursuant to s 9A(1) of the Interpretation Act (Cap 1, 2002 Rev Ed). In this regard, I note the decision of V K Rajah JA in Zhou Tong v Public Prosecutor [2010] 4 SLR 534 (“Zhou Tong v PP”) where he observed at [25] that:

Thus the underlying principle behind the court’s power to make a costs order against a defence counsel, which is codified in s 357(1) of the CPC, is that “the court has a right and duty to supervise the conduct of its solicitors and in so doing, penalise any conduct which tends to defeat justice”: Zhou Tong v PP at [23]. Rajah JA then further elaborated on the reason for introducing s 357(1) at [34]:

[11] In Zhou Tong v PP, Rajah JA stated at [22] that:

In light of the later Court of Appeal decision in Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258, such “inherent jurisdiction” should be more accurately described as this court’s inherent power. If this court cannot make an order for a defence counsel to pay to the prosecution costs incurred by the prosecution in the absence of a costs order against the accused under s 357(1) of the CPC, can it do so pursuant to an exercise of its inherent power instead? The prosecution submitted that the court can do so pursuant to an exercise of its inherent power and relied on Rajah JA’s decision in Zhou Tong v PP.

[14] Furthermore, in Goh Yihan, “The Inherent Jurisdiction and Inherent Powers of the Singapore Courts: Rethinking the Limits of their Exercise” [2011] SJLS 178, Professor Goh made the following observation at 201–202:

I agree with this approach. Although there is no express intention of parliament to limit this court’s inherent power, there seems to be an implied intention to do so. As I have explained above (at [10]), there appears to be a deliberate omission on the part of the draftsmen of s 357(1) to include a provision equivalent to O 59 r 8(1)(c) of the Rules of Court. This would indicate a deliberate move to limit the power of this court by restricting the costs orders it may make to the two types of orders provided for under s 357(1). It would then be contrary to legislative intent to nonetheless hold that this court may exercise its inherent power to make costs orders not provided for by s 357(1).

(a) that this court should order the accused persons to pay the costs of the prosecution ; and

(b) that Mr Ravi’s conduct falls under that described in s 357(1) such that this court should order Mr Ravi to reimburse the accused persons.

However, before I proceed to deal with these two issues, I must satisfy myself that, as a matter of natural justice, all parties have had the opportunity to be heard.

[23] Section 357(2) of the CPC provides that:

This procedural provision is a mandatory requirement that must be complied with to safeguard the principles of natural justice. Mr Ravi must be given reasonable opportunity to explain to the court why the costs order sought by the prosecution should not be made against him.

Mr Thuraisingam however pointed out that this case involved the withdrawal of CM 32. He argued that s 409 is not applicable because a withdrawal does not amount to a dismissal. The question to be dealt with is then whether a withdrawal of a criminal motion by the party who filed the motion can be deemed to be a dismissal of the criminal motion by this court under s 409.

[28] Black’s Law Dictionary (Bryan A Garner gen ed) (West Group, 9th Ed, 2009) defines “dismiss” at p 537 as “[t]o send (something) away; specif., to terminate (an action or claim) without further hearing, esp. before the trial of the issues involved.” Such a definition was considered by the Indian High Court in Premier Enterprises and Ors v The State of Meghalaya and Ors AIR 1992 Gau 98 and the court proceeded to explain at [11]:

[29] I agree that it does not require a determination of the merits of an action after a hearing for this court to dismiss the action. An action may be stopped in many ways. It could be discontinued or withdrawn or it could end after a hearing and a decision in favour of the respondent. It could also end before a hearing if, for example, there is a default of appearance, or if a party fails to proceed in accordance with the direction of the court. I am therefore of the opinion that withdrawing a criminal motion, which effectively stops or terminates the motion, amounts to dismissing the criminal motion. Once CM 32 was filed it triggered off an action. In this case, without the court’s order granting leave to withdraw the criminal motion, CM 32 will remain in the court’s docket. It is this order granting leave to withdraw the criminal motion that terminates CM 32 and brings closure to the proceedings. By making such an order, the court effectively “dismisses” the criminal motion.

[32] What amounts to a frivolous or vexatious proceeding, or one that is an abuse of process of the court, has been explained by the Court of Appeal in Riduan bin Yusof v Khng Thian Huat and another [2005] 2 SLR(R) 188. Lai Siu Chu J who delivered the judgment of the court held at [29]–[30]:

[33] Accordingly, CM 32 is frivolous or vexatious, if the motion is obviously unsustainable or wrong, or if there is a lack of bona fides in the filing of the CM 32. It will also be an abuse of process if it is not brought bona fide for the purpose of obtaining relief but for some other ulterior or collateral purpose. To determine whether CM 32 is frivolous or vexatious, or an abuse of process of the court, I must therefore have regard to the merits of CM 32, the conduct of proceedings in relation to CM 32 and the surrounding facts.

[34] In any event, s 356 of the CPC is also applicable in this case. It states that:

The exercise of this court’s power in relation to criminal motions falls under Division 5 of Part XX of the CPC. Therefore, I have the power to award costs to be paid by the accused persons to the prosecution in this case even though the parties had applied to withdraw CM 32 and CM 36. However, in accordance with s 356(3), such a costs order can only be made if I am satisfied that the conduct of the matter by the accused persons was done in an “extravagant and unnecessary manner.” In this regard, I would like to note that as the legal counsel of the accused persons, anything done by Mr Ravi on behalf of the accused persons constitutes the conduct of the matter by the accused persons.

The matters to be assessed in determining whether CM 32 is frivolous or vexatious, or an abuse of process of the court, are similar to those vis-à-vis determining whether the accused persons had conducted the matter in an extravagant and unnecessary manner. I shall therefore proceed to assess the merits of CM 32, the course of conduct in relation to CM 32 and the facts surrounding CM 32 in determining whether costs should be ordered against the accused persons under s 409 and s 356(1) of the CPC.

[36] CM 32 is an application for this court to “quash” the criminal charges currently faced by the accused persons. The premise of this application is that the inquiry conducted by the COI offended the sub judice rule as it would prejudice the accused persons’ rights to a fair trial. I would first like to point out that it is trite law that the sub judice rule deals with acts that amount to contempt of court. Therefore, breach of the sub judice rule may only result in a fine or a term of imprisonment for the contemnor.

[37] In any event, the joint affidavit made by the accused persons in support of CM 32 discloses no grounds for making out a breach of the sub judice rule. All that it contains are mere assertions. For example, para 4 of the affidavit states that:

[38] There is nothing in this paragraph, or in any other part of the affidavit, that points to any act of the COI that offended the sub judice rule. No specific comments made by the COI pursuant to the inquiry were referred to much less how these comments related to the criminal cases of each of the accused persons. It is claimed that the COI “purported to reveal evidence” without any mention of what this evidence is. No reason was provided as to why the COI has “caused for proceedings underway in a criminal trial to be prejudiced, by way of its own action”. The affidavit then went on to state at para 5 that:

[39] Once again assertions are made without any meaningful substantiation. While it is asserted that the COI posed “a real danger” and that this was not based on “some fanciful conjecture”, there is nothing in the affidavit that suggests that it was not based on “fanciful conjecture”. Even though the affidavit made reference to the “public disclosure of purported findings” of the inquiry, it did not point towards any particular disclosure. Such vague assertions made it impossible to identify any breach of the sub judice rule.

[40] The application by the accused persons made under CM 32 is therefore clearly devoid of merit. The relief pleaded for does not correspond with the sub judice claim. Further, the accused persons did not adduce an iota of evidence to support such a sub judice claim.

[41] In any event, the court also has no power to “quash” the charges at this juncture of the criminal proceedings when the trials of the accused persons have not even begun. Such a relief sought under CM 32, which should have been properly described as an application for this court to quash the criminal proceedings faced by the accused persons, is impossible to grant at such an early stage of criminal proceedings. It is well established that criminal proceedings against an accused person can only be “quashed” in the event that the court finds that the charges are not made out and that the accused should be acquitted. Such a finding cannot be made before a trial. The power to discontinue criminal proceedings before trial is exercisable at the sole discretion of the Attorney-General and not the court. This is clearly spelt out in Article 35(8) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint):

This position is also reiterated under s 11(1) of the CPC:

[42] This position was also affirmed by Yong CJ in Arjan Singh v Public Prosecutor [1993] 1 SLR(R) 542 at [8]:

[43] Therefore, not only is the sub judice allegation without merit, the relief sought by CM 32 is something beyond the powers of this court to grant. Nonetheless, I recognise that the fact that an application is unmeritorious may not be sufficient ground for this court to find that the conduct of the matter falls under s 356(3) and s 409 CPC.

[46] Mr Ravi had previously written to the secretariat of the COI on 20 January 2014, requesting to represent his clients, which included the accused persons, at the COI hearing. This was more than two months before the filing of CM 32. The secretariat replied to Mr Ravi’s letter on 27 January 2014 asking him to identify his clients and to provide an outline of the representation or evidence which he intended to put forth on behalf of each client. Mr Ravi then sent another letter to the secretariat of the COI on 4 February 2014. The letter contained the names of his clients. The letter also stated, inter alia, that:

[47] The secretariat of the COI subsequently replied on 6 February 2014 declining Mr Ravi’s request to represent his clients at the COI Hearing. The letter provided reasons why Mr Ravi’s request was refused. One of the reasons provided at para 5 of the letter was that:

It is clear from this that in rejecting Mr Ravi’s request, the COI was concerned with the potential breach of the sub judice rule, the very rule alleged to be breached in CM 32. In consideration of this, they refused to accede to Mr Ravi’s request to represent his clients at the COI hearing. Why then did Mr Ravi request to represent his clients at the COI hearing in the first place if the concern of the accused persons was the potential breach of the sub judice rule? If his request had been allowed, the accused persons’ testimonies which are directly related to their criminal proceedings would have been scrutinised during the COI hearing. Mr Ravi must have been aware that this would have probably prejudiced the criminal proceedings the accused persons are involved in which would have resulted in the sub judice rule being breached.

[48] Even if the accused persons and Mr Ravi were unaware of the sub judice rule, they must have been alerted of it by para 5 of the letter sent by the secretariat of the COI on 6 February 2014. Yet they were not concerned with the sub judice rule and did not raise the issue with the COI before the COI hearing began on 19 February 2014. In fact, they did not see fit to raise the issue up until 1 April 2014 when Mr Ravi wrote to the secretariat of the COI requesting the COI to discontinue the inquiry in light of the alleged potential violation of the sub judice rule. Furthermore, this was only done after the COI hearing had already ended on 26 March 2014 despite the fact that the COI hearing dates were a matter of public knowledge. If the accused persons and Mr Ravi were truly concerned with a breach of the sub judice rule, I do not see any reason for such an inordinate delay.

[49] From these circumstances, the reasons for the filing of CM 32 on 2 April 2014 appear dubious. The complaint was in effect an unsupported allegation of a breach of the sub judice rule. Furthermore, this is a rule which the accused persons themselves nearly induced the COI to breach if not for the COI’s decision to reject Mr Ravi’s request to represent the accused persons at the COI hearing.

(a) incurred unreasonably or improperly in any proceedings; or

(b) wasted by a failure to conduct proceedings with reasonable competence and expedition.

[52] It is the prosecution’s submission that Mr Ravi had conducted himself unreasonably and had failed to conduct proceedings with reasonable competence and expedition. The following issues must therefore be addressed:

(a) Whether Mr Ravi conducted himself unreasonably;

(b) Whether Mr Ravi failed to conduct proceedings with reasonable competence and expedition;

(c) Whether costs were incurred as a result; and

(d) Whether in the circumstances of the case it is just to order Mr Ravi to reimburse the accused persons.

[54] Mr Ravi’s filing of CM 32 does not permit a reasonable explanation in light of his prior conduct. He had first exposed the accused persons to the risk of prejudice by requesting to represent them at the COI hearing. If the COI had allowed this, it might have prejudiced the fair conduct of their criminal trials by being in breach of the sub judice rule. Furthermore, after Mr Ravi was informed by the COI of such risks in its letter rejecting his request, he only raised the sub judice issue at a much later date. If he was truly concerned with the sub judice rule as he appears to be in filing CM 32, why then was he willing to risk breaching the rule before filing CM 32? If he was genuinely safeguarding the interests of the accused persons, why did he only raise this issue after the COI hearing had ended? There does not appear to a reasonable and logical explanation for such behaviour. The lack of such an explanation leads me to question the bona fides of Mr Ravi when he filed an entirely baseless CM 32.

[55] Nonetheless, whatever the actual motives of Mr Ravi were, the conduct of Mr Ravi surrounding the filing of CM 32 is not a bona fide attempt on his part to advance the interests of the accused persons. This is despite the fact that solicitors owe a duty to further the best interests of their clients. This duty is expressly enshrined in the Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) and are reproduced below:

[56] Mr Ravi, by volunteering to represent the accused persons at the COI hearing, placed them at risk vis-à-vis the sub judice rule. He also failed to conduct the cases of the accused persons in such a manner as he considers will be most advantageous to them. He wanted to involve himself with the affairs of the COI hearing even though it does not appear to offer any benefit to the defence of the accused persons in their criminal proceedings. Such participation might have even prejudiced the accused persons in their criminal proceedings

[57] Lastly, the affidavit in support of CM 32 also appears to support the conclusion that Mr Ravi did not prioritise the interests of the accused persons. Although CM 32 was allegedly filed on behalf of all the accused persons, only three of the accused persons who were on bail affirmed and signed the affidavit. The other two accused persons who were and still are in remand did not do so. This raises a question of whether these two accused persons were even consulted in the first place. Furthermore, it would appear that as individuals in remand who have been deprived of their liberty, their interest should be of greater concern to Mr Ravi. Despite being in such a position, no affidavit was obtained from them in support of CM 32. One can only wonder why Mr Ravi did not do so. For these reasons, I find that Mr Ravi had conducted himself unreasonably.

[58] In relation to the term “reasonable competence and expedition”, Rajah JA held in Zhou Tong v PP at [31]–[32] that:

[59] Mr Ravi also failed to act reasonably as a competent solicitor would. As a solicitor Mr Ravi should be well aware of the standards to be met when drafting an affidavit. However, CM 32 was supported by an affidavit drafted by Mr Ravi that only contained bare assertions. Furthermore, this is not a matter of Mr Ravi inheriting a bad case from the accused persons which resulted in a poorly drafted affidavit. Rather, it is Mr Ravi who initiated an unmeritorious motion on behalf of the accused persons on his own accord. I therefore find that Mr Ravi had failed to meet the standards of competence that should guide a solicitor’s conduct.

[60] Mr Thuraisingam informed me that Mr Ravi is representing the accused persons on a pro bono basis. Pro bono work is important because it enhances access to justice by all members of the community and I appreciate Mr Ravi’s efforts in contributing to such a cause. However, the advocate and solicitor’s duties to his client and to the court apply with as much force to pro bono work as they do to the most lucrative retainer. The requisite standard to be met for legal services provided pro bono should not differ from that vis-à-vis a fee-based retainer. The fact that Mr Ravi is not charging the accused persons is no justification for filing a frivolous and vexatious CM 32 which is extravagant and unnecessary.