Gobi a/l Avedian and another v Attorney-General and another appeal

• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 13 August 2020
• Neutral Citation: [2020] SGCA 77
• Citation: [2020] SGCA 77
• Defendant Counsel: Wong Woon Kwong, Seah Ee Wei and Pavithra Ramkumar (Attorney-General's Chambers),Francis Ng Yong Kiat SC, Seah Ee Wei and Pavithra Ramkumar (Attorney-General's Chambers)
• Published date: 18 August 2020
• Hearing Date: 02 April 2020,15 June 2020
• Plaintiff Counsel: The appellants in person (Ravi s/o Madasamy (Carson Law Chambers) as McKenzie friend)
• Date: 13 August 2020
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeals Nos 23 of 2020 and 24 of 2020
• Subject Matter: Judicial review,Affidavits,Remedies,Interlocutory proceedings,Civil Procedure,Administrative Law,Declaration

Andrew Phang Boon Leong JA (delivering the judgment of the court): Background

Mr Gobi a/l Avedian (“Mr Gobi”) and Mr Datchinamurthy a/l Kataiah (“Mr Datchinamurthy”) are Malaysian citizens who were convicted in separate proceedings for drug-related offences and sentenced to the death penalty. They are currently held in Changi Prison awaiting the execution of their sentences. Mr Gobi has filed a separate application in CA/CM 3/2020 to review his conviction and the Court of Appeal has reserved judgment in that matter.

On 16 January 2020, Lawyers for Liberty (“LFL”), a non-governmental organisation based in Malaysia, released a press statement where it claimed that it had discovered that “brutal and unlawful methods” were used in judicial executions in Singapore (“the LFL Press Statement”). LFL had allegedly been informed that in the event that the rope broke during an execution, officers from the Singapore Prison Service (“SPS”) were trained to execute the prisoner by kicking the back of the prisoner’s neck. This was done surreptitiously and specific measures were adopted to ensure nothing incriminating would be revealed in a subsequent autopsy. LFL claimed that this information had been provided by a former SPS officer (“the Witness”).

The applications

On 28 January 2020, the appellants filed HC/OS 111/2020 (“OS 111”) pursuant to O 53 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the Rules”) for leave to commence judicial review and sought the following orders: a prohibiting order directing that their executions be stayed pending investigation of the allegations that executions were carried out by kicking to the back of the neck as there was an imminent risk that the appellants might be executed in breach of their rights under Arts 9 and 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) (“the Prohibiting Order”); and a mandatory order directing that the Attorney-General (“the AG”) and the Minister for Home Affairs (“the Minister”) provide protection from criminal and civil liabilities to the Witness to enable him to provide the necessary information in support of the application (“the Mandatory Order”).

The appellants were represented by Mr Ravi s/o Madasamy (“Mr Ravi”), an advocate and solicitor with Carson Law Chambers.

In their affidavit filed in support of OS 111, the appellants exhibited the LFL Press Statement and an affidavit deposed by Mr Zaid bin Abd Malek (“Mr Zaid”). Mr Zaid is the appellants’ Malaysian solicitor, and he alleged that he had met the Witness in his office in Kuala Lumpur. The Witness had served in the SPS from 1991 to 1994 and provided details of the training he received as an SPS officer. He told Mr Zaid that the officers were trained to execute prisoners by kicking the back of their neck in the event that the rope broke during a judicial execution. According to Mr Zaid, he had perused certificates and documents which confirmed that the Witness had served in the SPS from 1991 to 1994. The Witness was only prepared to reveal his identity and file an affidavit attesting to the facts if he was granted immunity from civil and criminal prosecution by the relevant Singapore authorities. This formed the basis of the request for the Mandatory Order.

The AG filed two affidavits in reply. The first was an affidavit by Chief Prosecutor Kow Keng Siong (“CP Kow”) who stated that the AG had considered the matter and would not grant immunity from criminal prosecution to the Witness for any offence that he had committed or might commit. The second was an affidavit by Deputy Assistant Commissioner See Hoe Kiat (“Dy Asst Commr See”) of the SPS who unequivocally denied that the SPS had ever carried out any training or given instructions on the alleged execution method.

A pre-trial conference (“PTC”) for OS 111 was held on 4 February 2020, where Mr Ravi appeared for the appellants and Mr Wong Woon Kwong (“Mr Wong”) appeared for the AG. Mr Wong requested that OS 111 be heard on an urgent basis and stated, “I am also instructed to state that we are expressly reserving all our rights against Mr Ravi”. We will refer to this particular statement as “the Statement”. Mr Ravi asked if the Statement was a threat against him and his concerns were recorded twice by the assistant registrar, who informed him that he could clarify the Statement with Mr Wong after the PTC.

At the PTC, Mr Ravi also sought leave to tender a further affidavit from the Witness, and he was permitted to file this affidavit by 10 February 2020. No affidavit was filed. Instead, the appellants filed HC/OS 181/2020 (“OS 181”) for declaratory relief that the Statement breached their right to a fair hearing of OS 111 under Art 9 of the Constitution.

At the next PTC on 11 February 2020, Mr Ravi confirmed that the Witness would not file an affidavit. He also applied for and was granted leave to amend OS 111 as follows: Prayer 1(a) (see [3(a)] above) was amended from a stay “pending investigation of the allegations that executions are carried out by kicking to the back of the neck” to a stay “in light of the alleged contingent protocol that executions are carried out by kicking to the back of the neck” [emphasis added]. Additional prayers were added for (i) an order that the court grants immunity from criminal prosecution and/or civil liabilities to the Witness (“the Court Immunity Order”); and (ii) an order that OS 111 be stayed pending the decision in OS 181 or any appeals arising from the application.

The hearing below

Both OS 111 and OS 181 were heard by the High Court judge (“the Judge”) on 13 February 2020.

The appellants’ submissions

In respect of OS 111, Mr Ravi submitted that the “contingent protocol” (ie, the plan to execute a prisoner by kicking the back of the neck) was susceptible to judicial review because the SPS was a statutory body under the Prisons Act (Cap 247, 2000 Rev Ed) (“the Prisons Act”) and it carried out a public function of carrying out sentences passed by a court of law. There was a prima facie case of reasonable suspicion in favour of the Prohibiting Order because, if true, the allegations disclosed direct and blatant illegality in contravention of the Constitution. Section 316 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”) stipulated that a person must be executed by hanging by the neck; execution by kicking to the back of the neck was in breach of the CPC and, by extension, a breach of the right to life enshrined in Art 9 of the Constitution. The contingent protocol was also a breach of the right to equal treatment under Art 12 of the Constitution as the protocol was only applied when the rope broke, and this criterion was unintelligible and arbitrary. The court had the power to prohibit the Government from implementing a decision that was illegal or irrational. There was a risk that any judicial execution might lead to a prisoner being executed in a manner that was in breach of his constitutional rights, and all executions had to be stayed in view of the imminent risk of illegality.

In so far as the Mandatory Order was concerned, while the court could not compel the AG or the Minister to exercise their discretion in a certain way, it could compel them to consider exercising their discretion. In the circumstances, a refusal to grant immunity would be ultra vires and an abuse of discretion, as the threat of prosecution of the Witness denied the appellants an essential part of their evidence upon which they sought to make their case. It would also interfere with the appellants’ legitimate expectation that they could adduce all relevant information in support of their case, subject to procedural requirements.

The court had the power to make the Court Immunity Order as it could compel the witness to testify, and pursuant to s 134(2) of the Evidence Act (Cap 97, 1997 Rev Ed) (“the Evidence Act”), a witness could not be prosecuted for his answer nor have his answer proved against him in any criminal proceeding save a prosecution for giving false information. It would be in the public interest to have a full factual finding on the allegations and the Witness should be compelled to testify.

In respect of OS 181, the Statement was an implied threat to commence civil, criminal and/or punitive proceedings against Mr Ravi. It compromised the independence of counsel, which infringed the rule of law and the appellants’ right to counsel and a fair hearing under Art 9 of the Constitution. OS 111 should be stayed pending OS 181 as Mr Ravi should be permitted to argue OS 111 without the threat hanging over him.

The AG’s submissions

Mr Wong, appearing on behalf of the AG in OS 111, submitted that there was no decision susceptible to judicial review as the appellants had not exhausted their legal remedies. They had not applied for a stay of execution of their sentences or a grant of immunity for the Witness, and had instead come to the court as a first resort.

Specifically, in relation to the Prohibiting Order, there was no prima facie case of reasonable suspicion as there was no evidential basis to support the allegations. The appellants had not provided any admissible or reliable evidence to substantiate their claim and had only relied on hearsay evidence in the form of the LFL Press Statement and Mr Zaid’s affidavit. Hearsay evidence was not admissible in affidavits filed in these proceedings, based on O 41 r 5(1) of the Rules. Furthermore, the LFL Press Statement and Mr Zaid’s affidavit contained inconsistencies between them, such as whether or not the execution method was used or was merely a contingent protocol, and whether or not it was still used today. The Witness, if he even existed, had not provided any evidence. On the other hand, Dy Asst Commr See had filed an affidavit and deposed that no such method or contingent protocol had ever existed.

The application for the...