Arun Kaliamurthy and others v Public Prosecutor and another matter

• Jurisdiction: Singapore
• Judge: Tan Siong Thye JC
• Judgment Date: 23 June 2014
• Neutral Citation: [2014] SGHC 117
• Court: High Court (Singapore)
• Docket Number: Criminal Motion Nos 32 and 36 of 2014
• Published date: 14 July 2014
• Year: 2014
• Hearing Date: 23 May 2014,02 June 2014
• Plaintiff Counsel: Eugene Thuraisingam (Messrs Eugene Thuraisingam) and Ravi s/o Madasamy (Messrs L F Violet Netto)
• Defendant Counsel: Hui Choon Kuen, Tai Wei Shyong and Sarah Ong (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Compensation and costs
• Citation: [2014] SGHC 117

Tan Siong Thye JC: Introduction

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”).

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.

Parties appeared before me on 23 May 2014 and I granted leave to withdraw both CM 32 and CM 36. During the course of the hearing, the prosecution also applied for a personal costs order against Mr Ravi, who was represented by his own counsel, Mr Eugene Thuraisingam (“Mr Thuraisingam”), pursuant to s 357(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). The costs order sought by the prosecution is one to the effect that Mr Ravi shall personally bear the costs of the prosecution amounting to $1,000. I must therefore decide whether the circumstances of this case justify the making of such a personal costs order. However, before I proceed to analyse the factual matrix of this case, I shall first examine the powers of this court in making a personal costs order against a defence counsel.

Powers of the court in making a personal costs order against a defence counsel

Pursuant to s 357(1) of the CPC, this court may make the following orders relating to costs against a defence counsel:

Costs against defence counsel

357.-(1) Where it appears to a court that costs have been incurred unreasonably or improperly in any proceedings or have been wasted by a failure to conduct proceedings with reasonable competence and expedition, the court may make against any advocate whom it considers responsible (whether personally or through an employee or agent) an order — (a) disallowing the costs as between the advocate and his client; or (b) directing the advocate to repay to his client costs which the client has been ordered to pay to any person.

Section 357(1)(a) deals with solicitor and client costs between the defence counsel and the accused. This provision is not relevant in this case as Mr Ravi acted pro bono for the five accused persons. The pertinent provision is s 357(1)(b) which empowers a court to order a defence counsel to repay to the accused costs which the accused has been ordered to pay to any party such as the prosecution. It appears from the wording of s 357(1)(b) that it can only be made upon a costs order being made against the accused. Otherwise, there would be nothing for the defence counsel to repay to the accused and any order made under s 357(1)(b) will be, in effect, useless. This then raises the issue of whether this court can order a defence counsel to bear the prosecution’s costs personally in the absence of any costs order being made against the accused. To address this point , I shall have to consider the following issues: 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 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).

Powers of the court in making a personal costs order against a defence counsel under s 357(1) of the CPC

Section 357(1) of the CPC clearly allows for only two types of orders that may be made against a defence counsel. This court may either disallow solicitor and client costs between a defence counsel and the accused or order a defence counsel to repay the accused any costs the accused is ordered to pay to others. This provision does not permit the court to order a defence counsel to pay the costs of the prosecution directly without the client being ordered to pay costs first.

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:

The court's inherent jurisdiction to make personal costs orders against solicitors was first codified in O 59 r 8 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) ("the ROC") in respect of civil proceedings, and more recently in s 357 of the Criminal Procedure Code Act 2010 (No 15 of 2010) ("the CPC Act 2010") in respect of criminal proceedings. It is to be noted that the CPC Act 2010 was passed by Parliament on 19 May 2010 and assented to by the President on 10 June 2010 but has yet come into force. I now turn to both provisions so as to elaborate on the court's jurisdiction to make personal costs orders against solicitors in proceedings such as the present one. Ultimately, in determining the scope of the court's inherent jurisdiction in this respect, it must be borne in mind that both O 59 r 8 of the ROC and s 357 of the CPC Act 2010 are based on the very same practical and ethical considerations (see Tan King Hiang v United Engineers (Singapore) Pte Ltd [2005] 3 SLR(R) 529 ("Tan King Hiang") at [15]): (a) the law imposes a duty on solicitors to exercise reasonable care and skill in conducting their clients' affairs although an advocate enjoys immunity from claims for negligence by his clients in respect of his conduct and management of a case in court and the pre-trial work immediately connected with it; and (b) a litigant should not be financially prejudiced by the unjustifiable conduct of litigation by his opponent or his opponent's solicitor.

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]:

… Parliament had enacted [s 357(1)] to remind solicitors of their obligation to ensure that they properly discharge all their professional responsibilities to their clients in all criminal proceedings, including magistrate's appeals. The provision should be viewed as a timely reminder to all who practice at the criminal bar. Unfortunately, at present, a small number of solicitors do not conscientiously discharge their professional responsibilities in court proceedings. Their cases are inadequately prepared and their research usually barren. These solicitors often file frivolous appeals because they do not think it will result in any personal downside. Section 357 unequivocally signals to this small number of solicitors that they will have to immediately haul themselves up by their own bootstraps.

The prosecution submitted that a liberal interpretation of s 357(1) which allows for the court to order a defence counsel to pay the costs of the prosecution in the absence of a costs order against the accused may further enhance the supervisory powers of the court over the conduct of its solicitors. It may also serve as a stronger reminder to defence counsel of their obligation to ensure that they properly discharge all their professional responsibilities to the accused in all criminal proceedings. However, aside from the submissions made by the prosecution, I must also bear in mind the principle against doubtful penalisation when interpreting s 357(1). As stated by the Court of Appeal in Shorvon Simon v Singapore Medical Council [2006] 1 SLR(R) 182 at [31]:

… It is trite law that the exercise of and the ambit of statutory powers in a penal context ought to be construed narrowly and/or strictly as the case may be (per F A R Bennion, Statutory Interpretation, A Code (Butterworths, 4th Ed, 2002) at pp 705-706: It is a principle of legal policy that a person should not be penalised except under clear law. ... Whenever it can be argued that an enactment has a meaning requiring infliction of a detriment of any kind, the principle against doubtful penalisation comes into play. [emphasis added]

To allow s 357(1) to be interpreted as allowing this court to make an additional form of costs order would subject defence counsel to an additional form of detriment in the event of misconduct that is not apparent from the express wording of s 357(1). The principle against doubtful penalisation would accordingly demand that I refrain from adopting such an interpretation. Furthermore, I note that there is no evidence of parliamentary intention in Hansard in support of such an interpretation. In the absence of such evidence, I am not convinced that there exists sufficient premise for a court to effectively insert words into s 357(1)...