Iskandar bin Rahmat and others v Attorney-General and another [2022] SGCA 58

There are two matters before us today. The first is CA/CA 31/2022 (“CA 31”), which is an appeal against the decision of the High Court Judge (“the Judge”) in HC/SUM 2858/2022 (“SUM 2858”) that was rendered yesterday striking out HC/OC 166/2022 (“OC 166”) in its entirety. OC 166 in turn was a claim brought by 24 convicted prisoners (collectively “the appellants”) seeking:

(a) A declaration that ss 356, 357 and 409 of the Criminal Procedure Code 2010 (2020 Rev Ed) (“the CPC Cost Provisions”) are inconsistent with Arts 9(1) and 12(1) of the Constitution of the Republic of Singapore (2020 Rev Ed) (“the Constitution”). They claim that the CPC Cost Provisions deny their constitutional right to access to justice (“the Declaration Claim”).

(b) Damages for breach of a statutory duty “to allow and/or not to obstruct and/or to facilitate access to justice and/or access to counsel/legal advice in accordance with Article 9 of the Constitution, the Legal Profession Act 1966, Prisons Act 1993 and Prisons Regulations as well as the common law applicable in Singapore” (“the Damages Claim”).

The second matter that is before us today is an oral application made by the 2nd Appellant in CA 31, Abdul Rahim bin Shapiee (“Abdul Rahim”), seeking a stay of execution in respect of a Warrant to carry out the death sentence that was imposed on him some time ago. That sentence is scheduled to be carried out tomorrow. The stay application is grounded on an action that the 2nd appellant filed, namely HC/OC 173/2022 (“OC 173”), on 3 August 2022 against his counsel at trial, ostensibly for breach of his duty and for failing to follow instructions.

At the start of the proceedings before us, the appellants, who were in person, made an oral application for permission to be assisted by a McKenzie friend. Specifically, we were informed that the appellants wished to have Mr M Ravi (“Mr Ravi”), an advocate and solicitor, who currently does not hold a Practising Certificate (“PC”) act as their McKenzie friend. Mr Ravi did hold a conditional PC, but this expired at the end of March this year. This was not renewed and indeed Mr Ravi had undertaken that he would not apply for a PC prior to the end of March 2023. We first dispose of this briefly.

We asked the appellants what the purpose of the proposed McKenzie friend was and were told it was to enable them to get legal advice. We declined the request. A McKenzie friend has no right at all with respect to pending litigation. Any attempt to invoke the assistance of a McKenzie friend is at the initiative of the litigant and subject to the permission of the court. The court will usually be sympathetic to such a request where it considers that the litigant reasonably requires assistance appropriate to that which may be provided by a McKenzie friend. A McKenzie friend may not act as an advocate for a litigant, and is best seen as a support to aid the litigant in the way of helping with documents or with taking notes or with guiding a litigant through the process.

In Wee Soon Kim Anthony v UBS AG [2003] 1 SLR(R) 833 (Anthony Wee), after observing at [17] that a litigant may be denied the assistance of a McKenzie friend if there is reason, the High Court observed at [18]:

It was clear to us that this was not a case where the appellants needed the assistance of a McKenzie friend. The appellants had advanced their arguments before the Judge yesterday and directions had been given for those to stand as submissions before us. It was evident from those submissions that they either had already been assisted in developing their legal points or they did not require such assistance. Further this was not a case where there were voluminous documents such that they needed help to be assisted with these.

In any case, we were not minded to permit Mr Ravi to take on such a role. First, we were mindful of his previous conduct where he had appeared in a matter when he did not have a valid PC, ostensibly to provide “technical support”. In Nagaenthran a/l K Dharmalingam v Attorney-General and another matter [2022] SGCA 26 we observed as follows at [21]–[22]:

Aside from this, we had regard to the fact that Mr Ravi had subsequently decided not to renew his PC and had undertaken not to apply for a PC until next year. In those circumstances, we did not think it would have been appropriate for him to be giving legal advice to these appellants. We were concerned that Mr Ravi should not use this as a way to do through the back door that which he is not lawfully permitted to do.

With that we turn to the matters before us.

Background

The 2nd appellant, Abdul Rahim, and a co-accused person, Ong Seow Ping (“Ong”), are scheduled to be executed on Friday, 5 August 2022 pursuant to the death sentence that was imposed on each of them. Ong is not party to these proceedings.

Conviction and appeal

They were convicted on 15 March 2018 in a joint trial (“the Joint Trial”). They faced separate charges of possessing a Class A controlled drug for the purpose of trafficking under s 5(1)(a), read with s 5(2), of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). The trial judge found that the alternative sentencing regime under s 33B of the MDA was not applicable and imposed the death sentence (see Public Prosecutor v Ong Seow Ping and another [2018] SGHC 82 at [1]). Abdul Rahim was represented by Nadwani Manoj Prakash (“Manoj”), Jeeva Arul Joethy and Luo Ling Ling. We return to this later.

On 5 March 2020, Abdul Rahim’s and Ong’s appeals (“the Appeals”) against conviction and sentence were dismissed. At the appeal Abdul Rahim was represented by a different counsel, Dhillon Surinder Singh (“Mr Singh”) who was assisted by one of the assisting counsel, Luo Ling Ling, who had also been part of the team representing him at trial.

Abdul Rahim was also involved in two other sets of proceedings before the present set of proceedings. In HC/OS 825/2021 and HC/OS 1025/2021 (see for instance Syed Suhail bin Syed Zin and others v Attorney-General [2021] SGHC 274), he was part of a group of applicants jointly represented by Mr Ravi in proceedings that were dismissed.

OC 166

The Warrants of Execution for Abdul Rahim and Ong were issued to the Commissioner of Prisons on 19 July 2022, stating that they were to be executed on 5 August 2022. Abdul Rahim received his Notice of Execution on Friday, 29 July 2022. The appellants contend that they had intended to file OC 166 on Thursday 28 July 2022, but that the Registry officer at the prison had erroneously rejected their filing and that they were only eventually able to do so on Monday 1 August 2022.

Upon receiving OC 166, the Attorney-General (“AG”) applied by way of SUM 2858 on 2 August 2022 to strike out the entirety of OC 166 under O 9 r 16 of the Rules of Court 2021 (“ROC”), which provides as follows:

Under O 9 r 16(1)(a) ROC, the test is whether the action has some chance of success when only the allegations in the pleadings are concerned: Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others [1997] 3 SLR(R) 649 (“Gabriel Peter”) at [21]. If that is found to be the case, then the action will not be struck out.

Order 9 r 16(1)(b) allows the court to strike out pleadings which constitute an abuse of process of the court. The inquiry here includes considerations of public policy and the interests of justice, and signifies that the process of the court must be used bona fide and properly and must not be abused; the court will prevent improper use of its machinery and the judicial process from being used as a means of vexation and oppression in the process of litigation: Gabriel Peter at [22].

In addition, Order 9 r 16(1)(c) allows the Court to strike out pleadings when it is in the interests of justice to do so. The Judge agreed with the AG that this gives effect to the court’s inherent jurisdiction to prevent injustice, such as where the claim is plainly or obviously unsustainable: The “Bunga Melati 5” [2012] 4 SLR 546 at [33].

Appellants’ claims

They contend that a denial of access to justice violates Arts 9(1) and 12(1) of the Constitution.

As for the Damages Claim, the appellants plead that the respondents breached their “statutory duty to allow and/or not to obstruct and/or to facilitate access to justice and/or access to counsel/legal advice in accordance with Article 9 of the Constitution, the Legal Profession Act 1966, Prisons Act 1993 and Prisons Regulations as well as the common law applicable in Singapore by virtue of Article 2 of the Constitution”. The appellants did not identify which provision(s) in these pieces of legislation gave rise to the pleaded statutory duty, nor how any of the remaining elements for the tort are established.

Respondents’ submissions

Judge’s decision

The Judge allowed SUM 2858 and struck out OC 166 in its entirety. He held that the claim disclosed no reasonable cause of action. While the Judge considered the facts pleaded by the appellants to be insufficient in all the circumstances, we do not think it is necessary to consider the factual deficiencies for reasons we explain shortly.

The Judge struck out the Declaration Claim for being “plainly unsustainable”. However, he did grant an interim stay of execution pending the hearing of any appeal.

The Judge did not have to consider Abdul Rahim’s separate application for a stay based on OC 173 as that was brought before us for the first time.

Our decision

We first deal with the Declaration claim.

The Declaration Claim is without merit

Art 9(1)

Article 9 of the Constitution states in relevant part:

(a) It was contended that the Singapore Prisons Service (“SPS”) had deliberately refused to accept service of the draft filing that later emerged as OC 166 on 28 July because SPS wanted first to issue the Notice of Execution against the 2nd appellant on the next day. We note for the record that this was hotly contested by the AG.

(b) Having issued the Notice of Execution, the draft document was then accepted on 1 August and filed, but it had to be dealt with on an expedited basis because of the pendency of the Warrant of Execution a few days later.

(c) The expedited nature of the hearing deprived the appellants of the opportunity to gather evidence to show that practising lawyers were in fact deterred by the prospect of having to incur liability for costs from taking on the task of advising or representing applicants such as the present appellants.

(d) Their family members also indicated to the court that they were willing to put forward specific evidence setting out the names of such lawyers and the reasons they had advanced for declining to take on the representation of at least some of the present appellants.

In our judgment, given the nature of the Declaration Claim, this was a case where it was necessary to consider whether there was a viable claim to begin with. Just as the exploration of an interesting or important point of law cannot be undertaken by a court without an appropriate substratum of fact, the exploration of an interesting set of factual points cannot be undertaken without a viable legal claim. It is the confluence of a legal cause of action and the supporting substratum of fact that a court is concerned with in cases like the present. Hence, although the appellants present a robust case to the effect that there were factual points to be investigated, in our judgment, this would only be so if there was a viable legal cause of action that the factual averments could conceivably support. And this is where the appellants fail.

We also alluded in that case to the public interest in securing that lawyers conduct themselves appropriately especially in this context, even as we considered the need to ensure access to justice, as follows (Syed Suhail at [59]):

Art 12(1)

We can be brief on the challenge under Art 12(1), which provides:

Aside from this, there is a difference between an appeal and a post-appeal application. This was alluded to in Syed Suhail which we have referred to above and where we said as follows (at [55]):

For the foregoing reasons, we are satisfied that the entire Declaration Claim was rightly struck out under O 9 r 16(1)(a) ROC for having no chance of success on the face of the pleadings.

The Damages Claim has no merit

We turn briefly to the Damages Claim even though this was not pressed on us today. To establish the tort of breach of statutory duty, the claimants must prove that:

(Syed Suhail bin Syed Zin and others v Attorney-General and another [2021] 4 SLR 698 at [48]; Gary Chan Kok Yew & Lee Pey Woan, The Law of Torts in Singapore (Academy Publishing, 2nd Ed, 2016) at paras 09.007–09.009).

First, as the Judge noted, the appellants “have not pleaded precisely what statutory duty has been breached” (element (a) above). Nor did the appellants’ oral submissions before the Judge clarify matters.

Thus, purely to illustrate the point, even if the LPA were to be read as including the Legal Profession (Professional Conduct) Rules 2015, which states at r 4(e) that a legal practitioner “must facilitate the access of members of the public to justice”, this duty is subject to a “paramount duty to the court” to, among other things, not abuse its process.

We are therefore satisfied that the Judge was correct to strike out the Damages Claim. It follows that we dismiss CA 31.

OC 173

We turn finally to the oral application made by Abdul Rahim to stay his execution pending the disposal of OC 173.

OC 173 is a claim filed by Abdul Rahim on 3 August 2022 at 11:51am. The defendant was his assigned counsel, Manoj, who represented him in the Joint Trial (see [11] above). The principal written allegation is very brief and contends that Manoj did not make a reasonable or sufficient effort to understand Abdul Rahim’s instructions before trial; that during the trial Manoj did not call one Nuraiin Binte Rosman (“Nuraiin”) as a witness to give evidence; “only Jebek was called on the basis that it was sufficient”; Manoj did not object when Central Narcotics Bureau officers allegedly distorted the facts; and, generally, Manoj did not give proper support. He pleads that he wishes to “express [his] resentment and dissatisfaction.” However, before us, Abdul Rahim articulated a number of points of significance:

(a) His principal complaint is that he wanted to adduce the evidence of Nuraiin but his counsel, Manoj allegedly declined to do so.

(b) He also maintained that he wanted to change counsel during the trial, but Manoj allegedly told him that it would be difficult to effect this in the middle of the trial.

(c) He did get a new counsel for his appeal, Mr Singh, and he was happy with his performance and had no complaints with his conduct.

(d) He did not tell Mr Singh about his desire to call Nuraiin because he did not think about it. It only occurred to him much later when he thought about the case.

(e) Nuraiin’s evidence would show that the drugs that Abdul Rahim had were in fact for the person he referred to as Jebek.

Although the AG was not a party to OC 173, Mr John Lu (“Mr Lu”) for the AG did address us on the oral application for the stay of execution and he told us that:

(a) Nuraiin was committed to trial at the same time as Abdul Rahim, and she was separately dealt with. Her statements were therefore available to the Defence.

(b) She had initially been listed as one of the Prosecution’s witnesses but at the close of its case without having called her, the Prosecution offered Nuraiin to the Defence which chose not to call her.

(c) Abdul Rahim gave evidence at his trial and at no stage did he suggest that Nuraiin would be able to assist with his defences.

(d) Nor was she mentioned in his submissions on appeal.

In these circumstances, Mr Lu submitted in effect that this was an afterthought. This was not in any sense of the word a case of “new evidence” because Nuraiin was available as a witness to the Defence and not having called her at trial or raised this on the appeal, each of which proceedings was conducted by different counsel, it could not be said that this could have any bearing on the merits of the conviction.

In our judgment the claim against Manoj is an abuse of process and it is plainly an afterthought. The suggestion that Manoj was told that Abdul Rahim wished to call Nuraiin and refused to do so is wholly untenable when one considers that:

(a) Abdul Rahim did not mention this at all in his evidence at trial.

(b) More importantly, he did not even raise this with his counsel in the appeal whose work he said, even today, that he was happy with, and who he felt had conducted his appeal properly. It should be noted that the appeal was heard in March 2020 almost 2 years after the trial and it beggars belief that throughout that period Abdul Rahim did not see fit to mention this to his new counsel.

(c) And he did not take any step to act on this until literally days before the sentence was to be carried out.

Moreover, if he has no complaints with the conduct of the appeal this strengthens the difficulty with his complaint about the way the trial was allegedly conducted.

Aside from this, it seems to us that OC 173 is an abuse of the process of the court in that it seeks in effect to mount a collateral attack on another decision of the court. Abdul Rahim’s claim against Manoj must rest on the notion that his alleged misconduct caused Abdul Rahim damage in that but for Manoj’s failure, he would not have been subject to the punishment he now faces because he was in fact just a courier and would have been found to be so had Nuraiin’s evidence been led. But the punishment he now faces is a consequence of the decision and finding of the High Court in his trial and of the Court of Appeal in his appeal not only as to his guilt, but as to the fact that he was not just a courier. Hence to succeed in his claim, he would have to mount a collateral attack against those decisions. We touched on this recently in Beh Chew Boo v Public Prosecutor [2021] 2 SLR 180 (“Beh”) at [58]–[65], where we endorsed the position reflected in the decision of the House of Lords in Hunter v Chief Constable of the West Midlands Police and others [1982] AC 529 (“Hunter”). Hunter stands for the proposition that the court will not allow a litigant to launch a collateral attack on a prior criminal judgment through later civil proceedings because this is an impermissible abuse of process. We set out here at some length what we said in Beh at [58]–[62] and [64] as follows:

In our judgment, the “proper method” for Abdul Rahim to challenge the finding of the trial judge that he was just a courier, or as to any other aspect for that matter, was by way of appeal. He has had that opportunity. Furthermore, the evidence that he claims is new was available then, and even if we assume in his favour he raised this with his trial counsel, he accepts that he did not mention it to his counsel at the appeal. This is precisely the sort of situation in which the civil suit will be seen as an impermissible collateral attack on the earlier decisions in the criminal proceedings.

We also do not regard OC 173 as a relevant proceeding to warrant the stay of execution in this case because of its patent lack of merit. Mr Lu mentioned in this connection that OC 173 has no bearing on the merits of the conviction. The question in the end is not whether Abdul Rahim did or did not mention Nuraiin to his trial counsel but whether her evidence could or would have led to a different outcome and there is simply nothing to lead us to this conclusion in the light of the way in which the trial and then the appeal was conducted.

But more than that, the sentence that is to be executed is based on the decision of the trial court in this case, that was affirmed on appeal. The question now is whether that decision is impugned in any way by the supposed new evidence. Where evidence is available at the time of the trial and not adduced it will not readily be admitted on appeal without some consideration of why it was not produced earlier and without due regard to its materiality and reliability: see Miya Manik v Public Prosecutor and another matter [2021] 2 SLR 1169 at [32]–[33].

This is plainly even more so the case after an appeal. In Kho Jabing v Attorney-General [2016] 3 SLR 1273, we held that where the appellant expressly declined to adduce evidence at trial and did not take up the opportunity on appeal it was not a denial of a right to a fair trial. We said as follows at [8]:

And more recently, in Public Prosecutor v Pang Chie Wei and other matters [2022] 1 SLR 452, we set out the position on the review powers in general as follows at [70]:

In that case, the new material concerned a change in the law but it can also consist of new evidence but this must be evidence that could not reasonably have been obtained at the time of the trial or appeal as reflected, for instance, in s 394J(3) of the CPC.

It follows from the foregoing that there is simply no reasonable prospect of the conviction being reopened on the basis of Nuraiin’s purported evidence and this supports Mr Lu’s submission that OC 173 cannot therefore have any bearing on the merits of the conviction.

The fact that OC 173 was filed at the eleventh hour and almost five days after the Notice of Execution was issued is also a factor we take into account. The claim pertains to events that occurred between 2016 and 2018 and was then not followed up until 2022, a few days before the sentence was to be carried out. For all these reasons we are satisfied that OC 173 is without merit and an abuse of process and cannot therefore be a basis for us to grant a stay of execution. We accordingly dismiss the oral application for the stay of execution.

Order 3 r 2(2) ROC states that “Where there is no express provision in these Rules or any other written law on any matter, the Court may do whatever the Court considers necessary on the facts of the case before it to ensure that justice is done or to prevent an abuse of the process of the Court, so long as it is not prohibited by law and is consistent with the Ideals [in civil procedure listed in O 3 r 1(2)]” [emphasis added in bold italics]. We exercise our powers under that provision to strike out OC 173 on the basis that it is appropriate and necessary to do so to prevent frustration of the administration of justice.