Attorney-General v Datchinamurthy a/l Kataiah

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 30 May 2022
• Neutral Citation: [2022] SGCA 46
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 20 of 2022
• Published date: 02 June 2022
• Year: 2022
• Hearing Date: 28 April 2022
• Plaintiff Counsel: Yang Ziliang and Pavithra Ramkumar (Attorney-General's Chambers)
• Defendant Counsel: The respondent in person.
• Subject Matter: Constitutional Law,Equal protection of the law,Fundamental liberties,Right to life and personal liberty,Judicial review,Criminal Procedure and Sentencing,Stay of execution
• Citation: [2022] SGCA 46

Andrew Phang Boon Leong JCA (delivering the grounds of decision of the court): Introduction

When a prisoner has been sentenced to the death penalty and is to be deprived of his life, he does not necessarily lose his other legal rights. Among other things, the exercise of discretion by the State in scheduling his execution is subject to legal limits, including the usual principles of judicial review and the fundamental liberties protected by the Constitution of the Republic of Singapore (2020 Rev Ed) (the “Constitution”).

Mr Datchinamurthy a/l Kataiah (the “respondent”) was convicted and sentenced in relation to a capital offence. Subsequently a date for his execution was fixed. This date fixed, however, was a date that fell prior to the hearing of a civil matter in which he was one of 13 plaintiffs. The question then was what role due process ought to play in the circumstances and whether, by such scheduling, he was being subjected to unequal treatment when compared with other equally situated prisoners. The General Division of the High Court judge (the “Judge”) found that there was a prima facie case of unequal treatment and allowed his application for leave to commence judicial review proceedings on that basis; she consequently ordered a stay of execution pending the resolution of the respondent’s judicial review application. On appeal, we upheld her decision. We now provide our full grounds of decision.

Background

The respondent was tried and convicted on a capital offence of trafficking in not less than 44.96g of diamorphine, under s 5(1)(a) read with s 33 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). As the respondent was not certified to have provided substantive assistance and in any event was not found by the trial judge to have been acting as a mere courier, he was sentenced to the mandatory death penalty on 15 April 2015 (see Public Prosecutor v Christeen d/o Jayamany and another [2015] SGHC 126 at [88]). His appeal against conviction and sentence was dismissed on 5 February 2016. On 3 February 2021, the respondent filed CA/CM 9/2021 (“CM 9”), seeking leave to make an application to review this court’s dismissal of the said appeal, pursuant to s 394H(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”). CM 9 was summarily dismissed on 5 April 2021 (see Datchinamurthy a/l Kataiah v Public Prosecutor [2021] SGCA 30 (“Datchinamurthy (CM)”) at [50]).

In addition to these criminal proceedings, the respondent filed civil applications in HC/OS 111/2020 (“OS 111”) and HC/OS 181/2020 (“OS 181”) on 28 January 2020 and 10 February 2020, respectively. In OS 111, the respondent applied for a stay of execution of his death sentence, pending an investigation into allegations concerning the method of execution adopted by the Singapore Prison Service (“SPS”). In OS 181, the respondent applied for a declaration that a statement made by a Deputy Public Prosecutor at a pre-trial conference towards his lawyer violated his right to a fair trial. OS 111 and OS 181 were dismissed by the High Court on 13 February 2020. The respondent’s appeals against the decisions in both cases were dismissed by this court on 13 August 2020 (see Gobi a/l Avedian and another v Attorney-General and another appeal [2020] 2 SLR 883 (“Gobi a/l Avedian”)).

Prior to the substantive hearing of the appeals in Gobi a/l Avedian, the respondent wrote to the Registry of the Supreme Court to complain that the SPS had “illegal[ly] copied and forwarded” his and his co-appellant’s correspondence with their lawyers and families to the Attorney-General’s Chambers (“AGC”). In Gobi a/l Avedian, this court observed that there was no legal basis in the form of a positive legal right permitting the SPS to forward copies of the said correspondence to the AGC (see Gobi a/l Avedian at [90]). However, we accepted that the obtaining of these documents by the AGC was “an oversight and not an attempt to seek an advantage in the proceedings”, and that AGC had conducted itself properly, by promptly destroying the copies upon being informed of the proper procedure it ought to adopt in relation to such correspondence (see Gobi a/l Avedian at [92]–[93]).

Subsequently, on 2 July 2021, the respondent was one of 13 plaintiffs in HC/OS 664/2021 (“OS 664”), in which leave to commence judicial review was sought under O 53 rr 1 and 7 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (the “2014 Rules”). This was to apply for, inter alia, a declaration that the Attorney-General had acted ultra vires and therefore unlawfully in requesting disclosure of their personal correspondence, and the SPS had acted ultra vires and unlawfully in disclosing the same; as well as damages and other relief for infringement of copyright and breach of confidence. On 28 October 2021, the day of the hearing of OS 664, counsel for the plaintiffs, Mr Ravi s/o Madasamy (“Mr Ravi”), indicated that they intended to withdraw OS 664, to pursue private law remedies outside the purview of OS 53 of the 2014 Rules. The General Division of the High Court judge granted leave to withdraw OS 664 and ordered that Mr Ravi bear costs personally. The judge found that there was no basis for Mr Ravi to have proceeded to make an application under O 53: there was “no genuine attempt by the plaintiffs” to seek prerogative relief in OS 664. Amongst other things, by that time, the legal position on the making of copies of such correspondence by the AGC was “settled” in light of the decision in Gobi a/l Avedian. Further, the AGC and the SPS had, in line with that decision, instituted safeguards concerning the said correspondence (see Syed Suhail bin Syed Zin and others v Attorney-General [2021] SGHC 270 (“Syed Suhail (HC)”) at [25]–[29]). This also meant that leave under O 53 would never have been granted to the plaintiffs to seek any of the private law remedies for breach of confidence and infringement of copyright. Entitlement to do so would only have arisen following the grant of such a prerogative order or a declaration being made at the substantive judicial review hearing (see Syed Suhail (HC) at [33]). That being said, the plaintiffs remained entitled to assert their private law claims outside O 53, if they were of the view that these were viable (see Syed Suhail (HC) at [35]).

Further, on 1 October 2020, the respondent and various other prisoners who had been sentenced to the death penalty commenced HC/OS 975/2020 (“OS 975”) against the Attorney-General and the Superintendent of Changi Prison (Institution A1). They sought pre-action discovery and leave to serve pre-action interrogatories in relation to their claims concerning the unauthorised disclosure of their correspondence. OS 975 was dismissed by the judge in the General Division of the High Court on 16 March 2021, who held that the applicants were precluded from applying for pre-action disclosures against the Government, and that the pre-action disclosures sought were neither necessary nor relevant (see Syed Suhail bin Syed Zin and others v Attorney-General and another [2021] 4 SLR 698 at [38] and [60]).

On 25 February 2022, the same 13 plaintiffs in OS 664 (which included the respondent) filed HC/OS 188/2022 (“OS 188”) under O 15 r 16 of the 2014 Rules, seeking substantially the same reliefs sought in OS 664. At the time of the present appeal, OS 188 remained pending before the court, having been fixed for hearing on 20 May 2022 at a pre-trial conference on 20 April 2022. It was also clear by 6 April 2022, when another pre-trial conference for OS 188 was held, that dates in May 2022 were being considered for the fixing of the hearing of OS 188.

Separately, the President’s order for the respondent’s execution under s 313(f) of the CPC was originally issued on 21 January 2020, and the Warrant of Execution under s 313(g) of the CPC was issued on 29 January 2020 for the death sentence to be carried out on 12 February 2020. However, an Order of Respite was issued by the President under s 313(h) of the CPC on 31 January 2020. On 12 April 2022, the President made a new order for the respondent to be executed on 29 April 2022. The decision to schedule the respondent for execution on that date was made just prior to that, on 11 or 12 April 2022. The Warrant of Execution was issued on 14 April 2022 and a letter from the SPS informing the respondent’s mother of his upcoming execution was sent on 21 April 2022 (the “Notice”).

The application

The respondent filed HC/OA 67/2022 (“OA 67”) on 27 April 2022, seeking leave under O 53 r 1 of the 2014 Rules to commence judicial review proceedings against the Attorney-General in relation to the scheduling of his execution for 29 April 2022. He sought the following reliefs: (a) a declaration that the Notice was in breach of the respondent’s rights under Arts 9(1) and 12(1) of the Constitution as OS 188 was pending; and (b) a prohibiting order or stay of execution of the respondent’s sentence of death, pending the resolution of OS 188. It was contended that the “effect of the [d]eclaratory orders sought in OS 188” would render his conviction and sentence unlawful and in breach of his rights under Arts 9(1) and 12(1) of the Constitution.

The decision below

In an oral judgment delivered on 28 April 2022 (the “Judgment”), the Judge observed that OA 67 erroneously relied on O 53 r 1 of the 2014 Rules instead of O 24 r 5 of the Rules of Court 2021 (the “2021 Rules”) (which came into force on 1 April 2022). However, the application substantively complied with the requirements of O 24 r 5(3) of the 2021 Rules in that an originating application, statement and supporting affidavit had been filed. The Judge observed that the respondent was acting in person and, pursuant to O 3 r 2(4) of the 2021 Rules, proceeded to deal with the substance of the application.

As stated by the Judge, the requirements for leave to commence judicial review proceedings are that: (a) the subject...