Masoud Rahimi bin Mehrzad v AG

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng J
• Judgment Date: 05 December 2023
• Docket Number: Originating Application No 987 of 2023 (Summons No 3096 of 2023)
• Court: High Court (Singapore)

Masoud Rahimi bin Mehrzad and others

and

Attorney-General

[2023] SGHC 346

Hoo Sheau Peng J

Originating Application No 987 of 2023 (Summons No 3096 of 2023)

General Division of the High Court

Civil Procedure — Striking out — Claimants seeking to challenge constitutionality of procedural law brought into force — Whether claimants had standing to bring challenge against law not yet in effect — Post-appeal Applications in Capital Cases Act 2022 (No 41 of 2022)

Constitutional Law — Equality before the law — Whether procedure applicable only to prisoners awaiting capital punishment inconsistent with right to equality under the law — Article 12(1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Constitutional Law — Fundamental liberties — Right to life and personal liberty — Whether summary disposal of application for permission to bring post-appeal application in capital case offends against right to fair trial — Article 9(1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Held, allowing the application:

(1) As the provisions did not yet have legal effect, the applicants would not have to contend with them if they wished to make any post-appeal applications, and therefore did not engage their constitutional rights: at [27].

(2) Even though a law might be on the books and might gain legal effect upon some act on the part of the Executive, until it did, and so long as it remained legally unenforceable, there could be no real and credible threat of infringement of rights, and consequently no standing to challenge its constitutionality: at [29].

(3) Even if the PACC Act were in force, this would not necessarily suffice for the applicants to have standing to mount a constitutional challenge. While it was conceivable that the very existence of an unconstitutional law sufficed for standing to be made out, this would be a rare and extraordinary case, as lax standing rules could seriously curtail the efficiency of the Executive in practising good governance: at [30] and [31].

(4) Substantive laws prescribing criminal offences could affect the conduct of private citizens, and their effects could be felt even in the absence of an actual prosecution. On the other hand, procedural laws did not affect substantive rights, and their mere existence, without more, was not sufficient to demonstrate a violation of constitutional rights: at [33].

(5) The questions of whether there was a real controversy between the parties, and whether the applicants had a real interest, were closely related to that of whether there had been a violation of rights: at [35] and [37].

(6) The function of the courts was to adjudicate on and determine disputes between parties, rather than to give advisory opinions on abstract, hypothetical questions. As the PACC Act was not in force, it could not have affected the applicants' rights, and there was therefore no real controversy: at [36].

(7) As there had been no violation of the applicants' constitutional rights, they were unable to meet the “real interest” requirement for standing. The applicants thus met none of the three requirements for locus standi, which would have sufficed for OA 987 to be struck out: at [37] and [38].

[Observation: The right to a fair trial and access to justice did not invariably entail a right to an oral hearing, and had to be considered in light of the part which any given procedure played in the complete judicial process. Concluded appeals should not be readily susceptible to challenge, and even in cases involving the death penalty, the principle of finality was no less important, and gained prominence towards the tail end of the criminal process: at [45] and [52].

The new procedure implemented by the PACC Act applied to applications taken out after appeals had been exhausted, where no such applications would normally be possible, and allowed an applicant to present his full materials (including evidence and arguments) for the consideration of the Court of Appeal while implementing features designed to sift out unmeritorious applications. A preliminary assessment of the merits, and a requirement of a reasonable prospect of success, were not novel features within the legal system, and did not entail an exercise in prediction or imagination. To the contrary, the courts could summarily deal with many types of criminal applications. Viewed in this context, the scheme introduced by the PACC Act could not be said to violate Art 9 of the Constitution: at [45] to [47], [52] and [53].

Prisoners awaiting capital punishment were a class of prisoners with an incentive to file last-minute applications aimed at delaying or frustrating their scheduled sentences. There had been recent instances of such last-minute applications in recent years, and rather than being to introduce the very differentia it embodied, the purpose of the PACC Act was to address this matter. Even if the object of the PACC Act was to prevent abuse of process generally, there needed not be a perfect relation or complete coincidence, and the fact that prisoners awaiting capital punishment had been prone to file such applications rendered the relationship capable of withstanding scrutiny under Art 12 of the Constitution and the reasonable classification test: at [63].]

Case(s) referred to

Adeeb Ahmed Khan s/o Iqbal Ahmed Khan v PP[2022] 2 SLR 1197 (refd)

Gabriel Peter & Partners v Wee Chong Jin[1997] 3 SLR(R) 649; [1998] 1 SLR 374 (folld)

Haw Tua Tau v PP[1981-1982] SLR(R) 133; [1980–1981] SLR 73 (folld)

Iskandar bin Rahmat v AG[2022] 2 SLR 1018 (refd)

Karaha Bodas Co LLC v Pertamina Energy Trading Ltd[2006] 1 SLR(R) 112; [2006] 1 SLR 112 (folld)

Kho Jabing v PP[2016] 3 SLR 135 (folld)

Leong Quee Ching Karen v Lim Soon Huat[2023] 4 SLR 1133 (folld)

Lim Meng Suang v AG[2015] 1 SLR 26 (folld)

Newton, David Christopher v PP[2024] 3 SLR 1370 (distd)

R v Haevischer[2023] SCC 11 (distd)

Richland Trade & Development v United Malayan Banking[1996] 4 MLJ 233 (folld)

Syed Suhail bin Syed Zin v AG[2021] 1 SLR 809 (folld)

Tan Eng Hong v AG[2012] 4 SLR 390 (folld)

Tan Seng Kee v AG[2022] 1 SLR 1347 (folld)

Vellama d/o Marie Muthu v AG[2013] 4 SLR 1 (folld)

Facts

HC/OA 987/2023 (“OA 987”) was a challenge by 36 prisoners awaiting capital punishment against two provisions introduced into the Supreme Court of Judicature Act 1969 (“the SCJA”). These two provisions had been introduced as part of a new procedure governing post-appeal applications made in capital cases, by way of the Post-appeal Applications in Capital Cases Act 2022 (No 41 of 2022) (“the PACC Act”), which had been passed by Parliament but had not yet been brought into force. The new s 60G(7)(d) of the SCJA provided that, in deciding whether to grant permission to bring a post-appeal application in a capital case, the Court of Appeal had to consider whether the application to be made had a reasonable prospect of success. The new s 60G(8) of the SCJA allowed the Court of Appeal to summarily deal with a post-appeal application in a capital case, without setting it down for a hearing.

The applicants contended that these two provisions were inconsistent with the right to fair trial under Art 9 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”). They also argued that the new procedure impermissibly distinguished between prisoners awaiting capital punishment and those who were not, in a manner inconsistent with the guarantee of equality under the law provided for by Art 12 of the Constitution.

By HC/SUM 3096/2023, the Attorney-General applied to strike out OA 987 on the ground that it disclosed no reasonable ground of action.

Legislation referred to

Constitution of the Republic of Singapore (2020 Rev Ed) Arts 9, 12, 12(1)

Criminal Procedure Code 2010 (2020 Rev Ed) ss 384(1), 394F, 394H(7), 394I(10), 397(3B)

Penal Code (Cap 224, 2008 Rev Ed) s 377A

Post-appeal Applications in Capital Cases Act 2022 (No 41 of 2022) s 2(b)

Rules of Court 2021 O 9 r 16(1)(a), O 9 r 16(3), O 24 r 5(3)(b)(ii)

Supreme Court of Judicature Act 1969 (2020 Rev Ed) ss 60F–60M, s 60G(1), s 60G(7), s 60G(7)(a)–(d), s 60G(8), s 60G(9)(a), s 60G(10)

Applicants in person;

Chew Shi Jun James, J JayaletchmiandLim Tze Etsuko(Attorney-General's Chambers) for the respondent.

5 December 2023

Judgment reserved.

Hoo Sheau Peng J:

Introduction

1 HC/OA 987/2023 (“OA 987”) is an application by 36 prisoners awaiting capital punishment (“the Applicants”) for declarations that two new provisions introduced by way of s 2(b) of the Post-appeal Applications in Capital Cases Act 2022 (No 41 of 2022) (“the PACC Act”) are “void for being inconsistent with the right to fair trial and access to justice contained in [Art 9 of the Constitution of the Republic of Singapore (2020 Rev Ed) (“Constitution”)] and inconsistent with [Art 12 of the Constitution]”.

2 The two provisions introduced by the PACC Act under challenge are s 60G(7)(d) and s 60G(8) of the Supreme Court of Judicature Act 1969 (2020 Rev Ed) (“SCJA”) (“the impugned provisions”). However, it must be noted that the PACC Act has not come into force, and the new provisions are not yet operative.

3 By way of HC/SUM 3096/2023 (“SUM 3096”), the Attorney-General (“the AG”) applies under O 9 r 16(1)(a) of the Rules of Court 2021 (“ROC”) to strike out OA 987 as disclosing no reasonable cause of action. This is the matter before me. Having considered the parties' submissions, I now give my decision.

Background

4 The PACC Act was enacted to deal with any post-appeal application in a capital case (“PACC application”) by a prisoner awaiting capital punishment (“PACP”) by introducing a new procedure for such PACC applications within the SCJA.

5 At the second reading of the...