Syed Suhail bin Syed Zin and others v Attorney -General [2021] SGHC 270

(a) First, has the counsel “acted improperly, unreasonably or negligently”?

(b) If so, one moves on to the second consideration, which is whether such conduct by counsel caused the other party to incur “unnecessary costs”?

(c) Again, if this is answered affirmatively, one proceeds to consider whether it is “in all the circumstances just” to order the counsel to compensate the other party for the whole or any part of the costs incurred.

Of the three steps, the first is probably the most contentious. In what circumstances will the court consider that counsel has acted improperly, unreasonably or negligently? The Court of Appeal in Tan King Hiang v United Engineers (Singapore) Pte Ltd [2005] 3 SLR(R) 529 (“Tan King Hiang”), while recognising that these terms are not amenable to precise definition, endorsed some useful guidelines laid down by the English Court of Appeal in Ridehalgh v Horsefield [1994] Ch 205 on how they may be interpreted (see Tan King Hiang at [18]):

The originating summons in this case (“the OS”) was fixed for hearing before me on 28 October 2021. It was an application for leave to commence judicial review proceedings. The Attorney-General was named as the defendant. At the start of the hearing, Mr Ravi s/o Madasamy (“Mr Ravi”), counsel for the plaintiffs, informed me that he wished to withdraw his application in the OS in its entirety. Mr Tan Chee Meng SC (“Mr Tan”), counsel for the defendant, expressed no objections.

The Originating Summons

The plaintiffs are all prisoners at Changi Prison Complex. All of them, save for the fifth plaintiff, had been convicted of drug trafficking under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). The fifth plaintiff had been convicted of murder under the Penal Code (Cap 224, 2008 Rev Ed). For their respective offences, all the plaintiffs had been sentenced to the death penalty, but the second plaintiff’s death sentence was subsequently set aside following a successful criminal review application to the Court of Appeal.

During the course of the proceedings involving the second and third plaintiffs in two appeals before the Court of Appeal in Gobi a/l Avedian and another v Attorney-General and another appeal [2020] 2 SLR 883 (“Gobi”), it was revealed that the defendant’s chambers had requested and received from the Singapore Prison Service (“the SPS”) copies of correspondence belonging to the second and third plaintiffs. In its judgment issued on 13 Aug 2020 in those appeals, the Court of Appeal observed that “there was no legal basis in the form of a positive legal right” on the part of the SPS to forward copies of the private correspondence of the second and third plaintiffs to the defendant’s chambers (see Gobi at [90]). The Court of Appeal clarified that the SPS may only disclose a prisoner’s correspondence to the defendant’s chambers if either the prisoner had consented or an order of court had been obtained (Gobi at [91]). To do otherwise was impermissible under the Prisons Regulations (Cap 247, Rg 2 2002 Rev Ed) (“the Prisons Regulations”), which had been made pursuant to s 84(1) of the Prisons Act (Cap 247, 2000 Rev Ed) (“the Prisons Act”) (see Gobi at [89]). However, the Court of Appeal also accepted that the defendant’s chambers had destroyed copies of the correspondence (discovered in those proceedings) that it had, and that the incidents of unauthorised disclosure of such correspondence by the SPS to the defendant’s chambers was an “oversight” and not an attempt by the defendant’s chambers to seek any unfair advantage in the proceedings (see Gobi at [92]-[93]).

Following the decision in Gobi, and during the course of criminal review proceedings concerning the first plaintiff’s conviction for drug trafficking in Syed Suhail bin Syed Zin v Public Prosecutor [2021] 1 SLR 159 (“Syed Suhail”), the lead counsel for the prosecution, DPP Francis Ng SC (“DPP Ng”), disclosed that its file for the first plaintiff contained copies of personal correspondence, including legally privileged material, sent to or received by the first plaintiff. These had been sent to the defendant’s chambers by the SPS. In response, the first plaintiff applied to disqualify the entire corps of officers at the defendant’s chambers from acting for the Public Prosecutor in the criminal review proceedings (see Syed Suhail at [12]). This application was dismissed by the Court of Appeal after it obtained confirmation from DPP Ng that he had not been involved in the previous appeal against conviction by the first plaintiff which had been unsuccessful and that he did not have sight of the contents of the personal correspondence of the first plaintiff (Syed Suhail at [12]). The Court of Appeal held that the first plaintiff had failed to show any basis on which the entirety of the defendant’s chambers should be disqualified from appearing in the criminal review proceedings, nor any prejudice that may have been occasioned by the disclosure of the first plaintiff’s personal correspondence in the context of the criminal review proceedings (Syed Suhail at [12]).

Before the Court of Appeal’s judgment in Syed Suhail was issued on 16 October 2020, another set of legal proceedings was commenced concerning the correspondence of prisoners. On 1 October 2020, Originating Summons No 975 of 2020 (“OS 975”) was filed. OS 975 was an application by the plaintiffs, as well as some other prisoners, seeking an order of pre-action discovery concerning the defendant’s chamber’s requests for copies of correspondence between the plaintiffs and their lawyers and families, as well as copies of the plaintiffs’ correspondence forwarded to the defendant’s chambers by the SPS. OS 975 also sought leave to serve pre-action interrogatories on the defendant’s chambers primarily with a view to identifying the relevant persons involved in handling the plaintiffs’ correspondence.

In the course of OS 975, through affidavits by Deputy Attorney-General Hri Kumar Nair (“DAG Nair”) filed on 18 November and 16 December 2020, the defendant disclosed all the correspondence sent by or to the plaintiffs which was in the possession, custody or power of the defendant. This was based on a review conducted by a team of officers from the defendant’s chambers after OS 975 was filed.

OS 975 was heard and dismissed by See Kee Oon J. In his judgment issued on 16 March 2021, See J found that it would not be appropriate for the court to allow the plaintiffs’ applications for pre-action discovery and pre-action interrogatories given that any civil proceedings against the government had to be commenced in any event against the defendant (see Syed Suhail bin Syed Zin and others v Attorney-General and another [2021] 4 SLR 698 (“Syed Suhail OS 975”) at [14]-[18]). See J also held that pre-action discovery was not necessary because the defendant had already made voluntary disclosure of all the plaintiffs’ correspondence that was forwarded by the SPS to the defendant (see [42]-[44]). The judge also observed that the defendant had “categorically affirmed” that his chambers had not used the plaintiffs’ correspondence or otherwise gained any advantage through the use of such correspondence in any legal proceedings against the plaintiffs (at [43]).

I should also point out that, in Syed Suhail OS 975, when addressing the question of whether the plaintiffs in OS 975 had possible claims for breach of statutory duty, See J observed: “[t]hat there has been a breach of the relevant provisions in the Prisons Act and [the Prisons Regulations] is not in question, as has been determined by the Court of Appeal in [Gobi ([9] above)]” [emphasis added] (at [48]). There was no appeal against the decision of the High Court in Syed Suhail OS 975.

Mr Ravi was the counsel for appellants in Gobi. He was counsel for the applicant in the criminal review proceedings in Syed Suhail ([10] above). He also acted for the plaintiffs in Syed Suhail OS 975.

On 2 July 2021, the plaintiffs, represented by Mr Ravi, filed the OS. This was an application brought under O 53 rr 1 and 7 of the Rules of Court. In other words, it was an application for leave to commence judicial review proceedings. In the OS, the plaintiffs prayed for leave to be granted to them to seek the following reliefs:

(a) a declaration that the defendant acted ultra vires and unlawfully when his chambers requested the personal correspondence of the first, third and eighth plaintiffs, without their consent;

(b) a declaration that the SPS acted ultra vires and unlawfully when it disclosed the plaintiffs’ personal correspondence to the defendant’s chambers, without their consent;

(c) a prohibitory order against the defendant’s chambers from requesting from the SPS copies of the plaintiffs’ personal correspondence or information about the contents of such correspondence;

(d) a prohibitory order against the SPS from disclosing to the defendant’s chambers the plaintiffs’ personal correspondence or information about the contents of such correspondence;

(e) a declaration that the defendant and the SPS had “breached confidence” in the case of the first, third, fourth, fifth, ninth and 11th plaintiffs.

(f) a “mandatory order” for the destruction of the copies of the first, third, fourth, fifth, ninth and 11th plaintiffs’ correspondence received in breach of confidence by the defendant’s chambers;

(g) damages for breach of confidence in the case of the first, third, fourth, fifth, ninth and 11th plaintiffs;

(h) a declaration that the SPS had infringed the copyright belonging to the first, fifth and seventh plaintiffs; and

(i) nominal damages for breach of copyright in the case of the first, fifth and seventh plaintiffs.

For ease of reference, I will refer to the reliefs in [16(a)]-[16(b)] as “the Declarations”, those in [16(c)]-[16(d)] as “the Prohibitory Orders”, and those in [16(e)]-[16(i)] as “the Private Law Reliefs”.

It was not any of the plaintiffs but Mr Ravi who himself filed the affidavit in support of the application. In his affidavit of 1 July 2021, Mr Ravi stated the plaintiffs had “made this application seeking leave to commence proceedings out of caution” in the event that the court was of the view that the plaintiffs were not seeking merely declarations as prayed for, but that they were in truth seeking prohibitory orders. He also added that the plaintiffs were “of the view that it should not be necessary to seek a prohibitory order to ensure that the [defendant] and [the SPS] desist from the offending activity in the future” [emphasis added]. This was because of the decision of the Court of Appeal in Gobi ([9] above) and also See J’s observation in Syed Suhail OS 975 ([13] above). Mr Ravi also stated in his affidavit:

Deputy Attorney-General Hri Kumar Nair (“DAG Nair”) filed an affidavit on behalf of the defendant in response to the OS and Mr Ravi’s affidavit. He explained that, as of the Court of Appeal’s decision in Gobi, the SPS and the defendant’s chambers have had in place a policy that a prisoner’s correspondence will not be sent by the SPS to the defendant’s chambers, unless the prisoner’s consent or an order of court in relation to such disclosure has been obtained. DAG Nair also revealed that the defendant’s chambers had written to Mr Ravi on 16 July 2021 to inform him that they would be destroying the plaintiffs’ correspondence that had been disclosed in OS 975. Mr Ravi had replied on 21 July 2021 to state, inter alia, that the plaintiffs had no objection to the destruction of the said correspondence. The defendant’s chambers then proceeded to destroy all copies of the correspondence sent by or to the plaintiffs that were disclosed in OS 975.

Mr Ravi filed an affidavit in response to DAG Nair’s affidavit. In his affidavit, Mr Ravi clarified that the plaintiffs were not seeking leave to bring an application for a “mandatory order” for the destruction of the plaintiffs’ correspondence (see [16(f)] above). Rather, what was sought was a mandatory injunction to compel the defendant to destroy the plaintiffs’ personal correspondence that were in the defendant’s chambers’ possession.

On 25 October 2021, Mr Ravi replied to state that the plaintiffs were amenable to withdrawing the OS but only on certain conditions that were set out in his letter (which was dated 22 October 2021). Among these conditions was one that required the defendant to confirm that he would not challenge “the procedural basis of [the plaintiffs] seeking declarations under O 15 r 16”.

There was no reply to Wong Partnership’s letter of 26 October 2021. As already mentioned (see [5] above), parties appeared before me on 28 October 2021, where Mr Ravi expressed his intention to withdraw the OS. This was not subject to any conditions. Given that the defendant had no objections, I granted leave for the withdrawal accordingly.

Whether there was a proper basis for the reliefs sought

I agree with the defendant’s submission that the OS was one that should never have been brought. It was presented as an application under O 53 of the Rules of Court for leave to commence judicial review proceedings. However, there was in fact no genuine attempt by the plaintiffs to seek any form of prerogative relief in the OS and, given what had already transpired by the time the OS was filed, it was devoid of any proper legal or factual foundation.

First, let me deal with the Prohibitory Orders. These were sought to prohibit the defendant’s chambers from requesting for copies of the plaintiffs’ personal correspondence, and to prohibit the SPS from sending the plaintiffs’ correspondence to the defendant’s chambers. However, the Court of Appeal in Gobi ([9] above) had made it clear that the defendant’s chambers had no right to any copies of the personal correspondence of prisoners, unless consent had been given by them or there was an order of court authorising such disclosure. That the legal position on such correspondence was settled was noted by See J in Syed Suhail OS 975 ([13] above). That was precisely why Mr Ravi himself stated in the affidavit in support of the OS that “it should not be necessary” to seek the Prohibitory Orders and the “obligations are clear” in light of the developments in Gobi and Syed Suhail OS 975 (see [18] above). Evidently, Mr Ravi recognised that there was no basis for the Prohibitory Orders.

Even if there were any lingering doubts about the matter, the affidavit filed by DAG Nair in the OS would have put matters beyond any serious argument. As already noted, DAG Nair explained that, as of the Court of Appeal’s decision in Gobi, the SPS and the defendant’s chambers had implemented a policy that a prisoner’s correspondence will not be sent by the SPS to the defendant’s chambers unless the safeguards as set out in Gobi have been complied with (see [19] above). With that affidavit, any concerns about such correspondence being shown by the SPS to the defendant’s chambers should have been addressed. It would have driven home the point that there was no basis at all for the plaintiffs to still proceed to seek the Prohibtory Orders as reliefs.

Second, in relation to the “mandatory order” at [16(f)] above, Mr Ravi had clarified through his responsive affidavit in the OS that he was not seeking leave to apply for any prerogative relief in this regard (see [20] above). Rather, he explained that what was really sought was a mandatory injunction to compel the defendant to destroy the correspondence of the plaintiffs that the defendant’s chambers had received from the SPS.

That being the case, I am of the view that there was in fact no genuine attempt by the plaintiffs to seek any form of prerogative relief in the OS, whether in the form of a prohibitory order or a mandatory order. That this was the case is also put beyond doubt by Mr Ravi’s explanations for why the plaintiffs proceeded under O 53, which I will turn to later (see [36]-[38] below). What then remains of the OS are the Declarations and the Private Law Reliefs.

It is well-established that a party can only seek a declaration under O 53 of the Rules of Court if it has first obtained leave under O 53 r 1 to apply for a prerogative order (Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1 (“Vellama”) at [53]). Given the absence of any genuine attempt to seek any form of prerogative relief in the OS, the Declarations sought were therefore “freestanding” declarations against the defendant under O 53 of the Rules of Court, which were procedurally unsustainable as a matter of law.

In any event, it is also clear that the Declarations would not have been granted. First, one basic requirement that must be satisfied before a party possesses standing to seek declaratory relief is that there must be a “real controversy” between the parties to the action for the court to resolve (Vellama at [16]). In this case, the issue as to the parties’ rights vis-à-vis the copies of the correspondence of the plaintiffs as prisoners has already been settled by Gobi ([9] above), where the Court of Appeal made it clear that, under the Prisons Regulations, it was impermissible for the SPS to disclose a prisoner’s correspondence to the defendant’s chambers without first obtaining either the prisoner’s consent or an order of court. In the subsequent proceedings in Syed Suhail ([10] above) and Syed Suhail OS 975 ([13] above), none of the parties attempted to re-open this issue, or to question the correctness of the decision in Gobi, nor could they. Put simply, there was no longer any controversy over the question of whether there had been a breach of the relevant provisions in the Prisons Act and the Prisons Regulations in respect of the conduct of the defendant’s chambers and/or the SPS which the plaintiffs have complained of in the Declarations (see also Syed Suhail OS 975 at [48]).

Second, the court’s power to grant declaratory relief is discretionary in nature. Declarations will not be granted where there is no need for them, even if the court has the requisite jurisdiction to grant them (see, eg, Salijah bte Ab Latef v Mohd Irwan bin Abdullah Teo [1995] 3 SLR(R) 233 at [18]; Legis Point LLC v Tay Choon Ai [2018] 3 SLR 1269 at [35]). Given the legal proceedings that preceded the OS and the developments which transpired, it is clear that there was no necessity for the Declarations. Since Gobi, neither the defendant nor the SPS has taken the position that the defendant’s chambers has any legal right to copies of the correspondence of the prisoners in the custody of the SPS. As of the Court of Appeal’s decision in Gobi, the SPS and the defendant’s chambers had also implemented a policy that a prisoner’s correspondence will not be sent by the SPS to the defendant’s chambers unless the safeguards in Gobi have been complied with (see [19] above). That being so, I cannot see how the plaintiffs would ever be granted leave under O 53 to seek the Declarations (see [16(a)]-[16(b)] above), even if one is to leave aside for the moment the question of whether there was any prerogative relief being sought in the OS.

As for the Private Law Reliefs, these pertain to private law remedies for some of the plaintiffs’ claims for breach of confidence and breach of copyright. Under O 53 r 7(1) of the Rules of Court, an applicant’s entitlement to bring private law claims under O 53 is premised on, amongst other things, leave being first granted to the applicant to apply for judicial review to seek a prerogative order, and such a prerogative order or a declaration being made at the substantive judicial review hearing. As I have already explained, there has been no genuine attempt by the plaintiffs to seek any form of prerogative relief in the OS, and what they sought were in substance “freestanding” declarations under O 53. In these circumstances, leave under O 53 would never have been granted to the plaintiffs to seek any of the Private Law Reliefs because the entitlement of the plaintiffs to pursue these claims would only have arisen if they had first sought and obtained leave to apply for some form of prerogative relief, something which I find they never intended to do despite including the relevant prayers in the OS (see [29] above).

I would also make an observation that the “mandatory order” at [16(f)] above sought by some of the plaintiffs for the destruction of copies their correspondence appears now to be moot. This is because both the defendant and Mr Ravi have since agreed that such correspondence in the possession of the defendant’s chambers are to be destroyed (see [19] above). That being so, it has not been explained by Mr Ravi why this relief was still being pursued up until the day on which the OS was scheduled to be heard.

In sum, it is quite clear that the OS was one that was “entirely devoid of legal foundation”. Since there was no genuine attempt by the plaintiffs to seek any form of prerogative relief, what the plaintiffs effectively sought in the OS were “freestanding” declarations, which are procedurally unsustainable as a matter of law under O 53. In any case, with the position as to the parties’ legal rights with respect to copies of the plaintiffs’ correspondence already settled in the earlier litigation, it was quite pointless for the plaintiffs to have embarked on this application for leave to seek judicial review over the same issue. As for the Private Law Reliefs, the plaintiffs are well entitled to bring any such civil claims against the defendant outside the purview of O 53, if they are of the view that any such claim is viable in law. However, to assert such private law claims under O 53 was simply untenable because there was no possibility of leave being granted for any of the plaintiffs to seek any form of prerogative relief.

The plaintiffs’ counsel’s liability for costs

Whatever the reasons were for the dismissal of the application for declaratory relief in Mohan (which are difficult for this court to ascertain given that there was no written judgment), what is clear is that each case must be determined on its own specific facts. In our case, what is troubling was that Mr Ravi had admitted that there was no basis for the Prohibitory Orders despite the fact that they had been prayed for in the OS. He also clarified that the “mandatory order” sought by the plaintiffs was not a prerogative order. That left only the Declarations and the Private Law Reliefs in the OS. Since that was the plaintiffs’ position, they were in reality not seeking any form of prerogative relief by filing the OS, and it must follow that there had been absolutely no basis for them to file an application under O 53. In these circumstances, the defendant could not have argued that the plaintiffs were “in substance” seeking prerogative orders.

I also reject Mr Ravi’s submission that he was only taking a “cautious procedural approach” by filing the OS under O 53. An applicant for judicial review who seeks prerogative relief is limited to proceeding under O 53. On the other hand, an applicant who seeks declaratory relief is not so constrained – he may still proceed under O 53 if he wishes to also obtain prerogative relief by the same application, but if not, he may simply proceed under O 15 r 16 with less hassle (see Vellama ([30] above) at [53]). It would only have been open to the defendant to argue that the plaintiffs were circumventing O 53 if the relief which the plaintiffs were seeking leaves them with O 53 as the only available procedural option - that is, if they were seeking some form of prerogative relief in the OS. Conversely, if the plaintiffs were only seeking declarations but not any form of prerogative relief (as it was the case here, and which Mr Ravi well knew), there would have been no basis for the defendant to make that same argument because the plaintiffs’ procedural options would not have been similarly limited. If indeed Mr Ravi was genuinely in any doubt as to whether the defendant would take up any procedural objections about his preferred course of applying for the intended declaratory relief under O 15 r 16 rather than under O 53, he could have written to the defendant, before filing the OS, to seek clarification of the defendant’s position. Regrettably, this was not done.

Another reason Mr Ravi raised to explain the plaintiffs making an application under O 53 was that he claimed that they considered the Prohibitory Orders to be necessary because of the defendant’s “lack of contrition”. According to Mr Ravi, this made the plaintiffs doubt that “unlawful acts” in relation to their correspondence would not happen again. I do not accept Mr Ravi’s belated attempt to re-characterise what the plaintiffs were in substance seeking by filing the OS. This excuse plainly contradicted his earlier position in the supporting affidavit filed for the OS where he had stated that the Prohibitory Orders were not necessary (see [18] above). In any case, as I have explained earlier, there is no factual basis whatsoever for the Prohibitory Orders (see [26]-[27] above).

Further, the majority of the remedies sought in the OS (see [16(e)]-[16(i)] above) were based on some of the plaintiffs’ private law claims, including a claim for substantive damages for breach of confidence. That much is confirmed by Mr Ravi in his two affidavits filed in the OS. In such a situation, the proper course to take when one is not genuinely seeking any form of prerogative relief is not to file an application under O 53, but to proceed by way of a civil action against the defendant.

In any case, I find that any such expressions of concerns by the plaintiffs are not sufficient to show that there still remains a controversy to render the Declarations necessary. The defendant is not only the guardian of the public interest, but also an officer of the court. He must be expected to comply with the law, and with all court decisions as to what the law requires of him and of the government. There is no reason to doubt that the decision in Gobi ([9] above) on the rights to prisoners’ correspondence has been followed, as already confirmed by DAG Nair in his affidavit (see [19] above). As for the alleged “lack of contrition”, that is an irrelevant consideration, even if it were true. The law demands compliance in action, and not merely in words, thoughts or feelings.

Applying the three-step approach in Munshi Rasal ([2] above), I first find that Mr Ravi’s conduct was plainly unreasonable. Despite his recognition (and admission) that the plaintiffs had no basis for obtaining the Prohibitory Orders, and being well aware that the plaintiffs were in reality not seeking any prerogative reliefs in the OS, Mr Ravi filed the OS seeking leave to obtain the Declarations and the Private Law Reliefs. Given Mr Ravi’s years of experience in dealing with judicial review matters, and the fact that he was also counsel in Vellama ([30] above), he would have known that the latter two sets of reliefs prayed for in the OS were procedurally unsustainable as a matter of law (see [30] and [33] above). A solicitor should not be held to have acted unreasonably simply because he acted for a client who has a bad case, but it would be quite different if a solicitor gives his assistance to proceedings which are an abuse of process (Tan King Hiang ([3] above) at [20]). In my judgment, there is no doubt that the present case falls within the latter situation as the OS was a wholly ill-conceived application which Mr Ravi could have had no justification to file on behalf of the plaintiffs given its total absence of any legal foundation (see also Prometheus Marine Pte Ltd v King, Ann Rita and another appeal [2018] 1 SLR 1 at [76]).