Arun Kaliamurthy v PP

• Jurisdiction: Singapore
• Judgment Date: 23 June 2014
• Date: 23 June 2014
• Docket Number: Criminal Motions Nos 32 and 36 of 2014
• Court: High Court (Singapore)

Arun Kaliamurthy and others

Plaintiff

and

Public Prosecutor and another matter

Defendant

[2014] SGHC 117

Tan Siong Thye JC

Criminal Motions Nos 32 and 36 of 2014

High Court

Criminal Procedure and Sentencing—Compensation and costs—Costs order against accused person under s 356 Criminal Procedure Code (Cap 68, 2012 Rev Ed) —Whether conduct of matter by accused persons was extravagant and unnecessary—Section 356 Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Criminal Procedure and Sentencing—Compensation and costs—Costs order against accused person under s 409 Criminal Procedure Code (Cap 68, 2012 Rev Ed) —Accused persons applied to withdraw criminal motion—Whether withdrawal amounted to dismissal—Whether criminal motion was frivolous, vexatious or an abuse of process—Section 409 Criminal Procedure Code (Cap 68, 2012 Rev Ed)

Criminal Procedure and Sentencing—Compensation and costs—Costs order against defence counsel under s 357 (1) (b) Criminal Procedure Code (Cap 68, 2012 Rev Ed) —Prosecution claimed for defence counsel to pay costs of prosecution—Whether defence counsel might be ordered to pay costs directly in absence of costs order against accused—Whether defence counsel had conducted himself unreasonably or without reasonable competence and expedition—Section 357 (1) (b) Criminal Procedure Code (Cap 68, 2012 Rev Ed)

The applicants (‘accused persons’) were five Indian nationals who faced criminal charges under the Penal Code (Cap 224, 2008 Rev Ed) for their participation in the riot at Little India on 8 December 2013. They were represented by their defence counsel Mr Ravi s/o Madasamy (‘Mr Ravi’). Due to the unprecedented scale of the riot, a committee of inquiry (‘COI’) was appointed under s 9 of the Inquiries Act (Cap 139 A, 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’).

Prior to the conduct of the COI hearing, Mr Ravi wrote in to the COI requesting to represent the accused persons at the COI hearing. The COI denied his request. After the COI hearing concluded, Mr Ravi filed Criminal Motion No 32 of 2014 (‘CM 32’) on behalf of the accused persons on 2 April 2014 seeking to ‘quash’ the charges they faced on the ground that the COI inquiry breached the sub judice rule. The prosecution (‘the Prosecution’) filed Criminal Motion No 36 of 2014 (‘CM 36’) seeking to strike out CM 32 as it was frivolous and vexatious. Mr Ravi then applied to withdraw CM 32 on 14 April 2014 and the Prosecution also applied to withdraw CM 36 on 23 April 2014. The Prosecution then applied for a costs order against Mr Ravi under s 357 (1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (‘CPC’) for Mr Ravi to pay the costs of the prosecution (‘the costs of the prosecution’) incurred as a result of his filing of CM 32 on the grounds that he had acted unreasonably and without reasonable competence and expedition.

Held, granting the application:

(1) Section 357 (1) of the CPC clearly allowed for only two types of orders that might be made against a defence counsel. This court could 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 was ordered to pay to others. It should not be interpreted liberally to include the making of a costs order for a defence counsel to pay the costs of the prosecution directly. This was in accordance with the principle against doubtful penalisation. Furthermore, it was likely that such a costs order was purposely omitted from s 357 (1) given that the drafters had omitted to include O 59 r 8 (1) (c) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed), which allowed a court to order a solicitor to indemnify any party in civil proceedings, in s 357 (1) when drafting it: at [6] to [10] .

(2) Zhou Tong v PP [2010] 4 SLR 534 could not support the proposition that the court might, in the exercise of its inherent power, make an order requiring a defence counsel to pay the costs of the prosecution in the absence of a costs order being made against the accused. The inherent power of this court did not grant it carte blanche to devise any costs order it thought fit when s 357 (1) clearly delineated the types of orders this court might make. To find that there was such a power might also be contrary to legislative intent given the deliberate omission of the drafters: at [12] to [15] .

(3) Mr Ravi could therefore only be ordered to pay the costs of the prosecution indirectly via a costs order under s 357 (1) (b). It had to then be shown that a costs order should be made against the accused persons, and that Mr Ravi's conduct fell under that described in s 357 (1). Only then could Mr Ravi be ordered to reimburse the accused persons under s 357 (1) (b) for the costs they were to pay to the Prosecution: at [21] .

(4) Section 409 of the CPC allowed the court to order costs against an applicant in a criminal motion if it dismissed the criminal motion and found that the criminal motion was frivolous, vexatious or an abuse of process of the court. A dismissal did not require a determination of the merits and the court's order granting leave to withdraw a criminal motion amounted to a dismissal. There was also no nexus for drawing a distinction between a withdrawal from a dismissal: at [27] to [30] .

(5) Section 356 (1) of the CPC also allowed the court to order costs against an accused in a criminal motion if the accused's conduct of the matter was extravagant and unnecessary. The court had to therefore 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 ss 409 and 356 (1) of the CPC: at [34] and [35] .

(6) The reasons for the filing of CM 32 on 2 April 2014 appeared dubious. The complaint was in effect an unsupported allegation of a breach of the sub judice rule. Furthermore, this was 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. This, coupled with the fact that CM 32 was entirely unmeritorious, shows that the conduct of the proceedings by the accused persons was extravagant and unnecessary, frivolous and vexatious, and an abuse of process of the court. A costs order should therefore be made against the accused persons to bear the costs of the prosecution: at [49] to [50] .

(7) Mr Ravi's filing of CM 32 did 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. 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. The conduct of Mr Ravi surrounding the filing of CM 32 was not a bona fide attempt on his part to advance the interests of the accused persons. Mr Ravi had therefore conducted himself unreasonably under s 357 (1) of the CPC. Mr Ravi also failed to act reasonably as a competent solicitor would: at [54] to [59] .

(8) Costs were incurred by the Prosecution in the process of filing CM 36 in response to CM 32 which could have been avoided if Mr Ravi had conducted himself with reasonable competence and expedition. Furthermore, Mr Ravi not only put the accused persons at risk of having to pay the costs of the prosecution here, he also nearly induced them to commit contempt of court by requesting to represent them at the COI hearing. This was therefore a just case to make a costs order against Mr Ravi to reimburse the accused persons for the costs they had to pay to the Prosecution: at [61] to [63] .

[Observation: In civil proceedings which involved disputes between private parties advancing their own private interests, costs orders were usually made in the course of proceedings. However, in criminal proceedings, costs orders were usually not made. Costs orders against the defence (‘the Defence’) or the Prosecution were made only in very limited circumstances and were not premised upon who was the successful litigant. The reason behind limiting ground for the award of costs in criminal proceedings was the public interest element in criminal litigation. Both the Prosecution and the Defence were discharging public functions in the interests of justice by securing convictions and acquittals of criminals and innocents respectively. Neither should be deterred from performing such public functions out of fear of a likely adverse costs order: at [17] and [18] .

Costs orders in criminal proceedings were therefore limited such that the Defence, which included the defence counsel, was able to perform its public function without fear of costs sanction. By limiting the amount of costs a defence counsel could be ordered to pay to the amount of costs his client had to pay, there would be less fear of financial prejudice on the part of the defence counsel when he conducted the defence on behalf of the accused.This was achieved by restricting the court's power such that it might only make a defence counsel indirectly pay the costs of the prosecution via s 357 (1) (b): at [19] and [20] .]

Abex Centre Pte Ltd v PP [2000] 1 SLR (R) 598; [2000] 2 SLR 681 (refd)

Arjan Singh v PP [1993] 1 SLR (R) 542; [1993] 2 SLR 271 (refd)

DB Trustees (Hong Kong) Ltd v Consult Asia Pte Ltd [2010] 3 SLR 542 (refd)

Nalpon Zero Geraldo Mario, Re [2013] 3 SLR 258 (refd)

Planmarine AG v Maritime and Port Authority of Singapore [1999] 1 SLR (R) 669; [1999] 2 SLR 1 (refd)

Premier Enterprises v The State of Meghalaya AIR 1992 Gau 98 (refd)

Riduan bin Yusof v Khng Thian Huat [2005] 2 SLR (R) 188; [2005] 2 SLR 188 (refd)

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