Andrew Phang Boon Leong JCA (delivering the judgment of the court):
At the hearing of Criminal Motion No 3 of 2022 (“CM 3”) on 4 May 2022, the respondent sought a personal costs against former counsel of the applicant, Mr Joseph Chen (“Mr Chen”), under whose watch CM 3 had been filed. In our ex tempore judgment dismissing CM 3 in its entirety (see Gaiyathiri d/o Murugayan v Public Prosecutor [2022] SGCA 38 (“the Judgment”)), we directed that both Mr Chen and the respondent tender written submissions on whether a personal costs order should be made against Mr Chen, and if so, the quantum of costs that are to be paid. After the parties’ written submissions were filed, we asked Mr Chen if he wished to make oral submissions before us. Mr Chen initially indicated that he wished to do so but later informed the court on 25 May 2022 that he was agreeable to us deciding the issue of a personal costs order without an oral hearing. In his correspondence to the court, Mr Chen also raised a few points that he urged us to consider, in addition to his written submissions. The respondent subsequently also informed the court that it had no objection to Mr Chen’s request and responded to Mr Chen’s further points in its own correspondence to the court. Having carefully considered both the parties’ written submissions and the arguments that they have canvassed in their subsequent correspondence to the court, we now deliver our decision.
We begin with the applicable legal principles. In determining whether it should exercise its powers to make personal costs orders against defence counsel, the court considers: (a) whether counsel has acted “improperly, unreasonably or negligently”; (b) if so, whether such conduct by counsel caused the other party to incur “unnecessary costs”; and (c) if so, whether it is “in all the circumstances just” to order counsel to compensate the other party for the whole or any part of the costs incurred (see the decision of this court in Syed Suhail bin Syed Zin v Public Prosecutor [2021] 2 SLR 377 (“Syed Suhail”) at [19]). As this court also held in Bintai Kindenko Pte Ltd v Samsung C&T Corp [2018] 2 SLR 532, one situation where a personal costs order may be appropriate “is where the solicitor advances a wholly disingenuous case or files utterly ill-conceived applications even though the solicitor ought to have known better and advised his client against such a course of action” (at [67]). In our view, this is precisely what had occurred in the present case.
In particular, we agree with the respondent that Mr Chen’s conduct of CM 3 has fallen short of what is expected of reasonable defence counsel, and would be regarded as improper according to the consensus of professional opinion. Mr Chen had failed in his duty to consider the merits of CM 3 and had facilitated the filing of CM 3 despite it being obviously bound to fail.
The part of CM 3 seeking discovery was patently unmeritorious. As we have explained in the Judgment (at [12]‒[17]), there was no legal or factual basis on which we could have ordered disclosure of the materials sought by the applicant.
More critically, Mr Chen would have known that this part of CM 3 was bound to fail. None of the materials for which disclosure was sought was in the possession of the respondent. This was also the applicant’s own position ‒ it is implicit in her supporting affidavit for CM 3 that she had recognised that most (if not all) of the materials for which disclosure was sought were in the possession of the Singapore Prison Service (“the SPS”). That alone would have made it clear to Mr Chen that this part of CM 3 was unsustainable since the respondent was the only other party to CM 3. Mr Chen now claims that it never occurred to him that requests for documents should have been made directly to the SPS and he had genuinely thought that the respondent could act as a conduit between the applicant and the SPS in facilitating these requests for documents. However, the prayers in CM 3 suggest otherwise. Prayer 2 (specifically seeking discovery of the applicant’s children’s medical records from their private paediatrician) is specifically directed at “the Prison Authorities” while prayer 1 (seeking discovery of all the other materials) states that the order therein is sought as against the respondent “and/or the Prison Authorities”. This demonstrates that Mr Chen had recognised the respondent and the SPS as being distinct entities. He must therefore also have recognised that any materials from the SPS would have to be obtained directly from it and not through the respondent, as he now claims. That is the only possible explanation for why he had found it necessary to specifically identify the SPS as the party against which the orders in prayers 1 and 2 of CM 3 were sought.
More specifically, we consider it likely that Mr...
