Nagaenthran a/l K Dharmalingam v Attorney-General and another matter

• Court: Court of Appeal (Singapore)
• Judge: Sundaresh Menon CJ
• Judgment Date: 29 March 2022
• Neutral Citation: [2022] SGCA 26
• Citation: [2022] SGCA 26
• Docket Number: Civil Appeal No 61 of 2021 and Criminal Motion No 30 of 2021
• Hearing Date: 01 March 2022,09 November 2021
• Plaintiff Counsel: L F Violet Netto (L F Violet Netto)
• Defendant Counsel: Wong Woon Kwong, Tan Wee Hao, Wong Li Ru, Andre Chong and Janice See (Attorney-General's Chambers)
• Subject Matter: Constitutional Law,Judicial review,Criminal Procedure and Sentencing,Appeal,Adducing fresh evidence
• Published date: 07 April 2022

Sundaresh Menon CJ (delivering the judgment of the court): Introduction

The appellant in these proceedings, Mr Nagaenthran a/l K Dharmalingam, has been embroiled in legal proceedings since his arrest for importing a substantial quantity of diamorphine into Singapore nearly 13 years ago. The history of the various proceedings is outlined at [4]–[7] below. This judgment is issued in respect of two sets of proceedings that came before us: Civil Appeal No 61 of 2021 (“CA 61”), which was the appellant’s appeal against the High Court’s dismissal of his application in Originating Summons No 1109 of 2021 (“OS 1109”) for leave to commence judicial review proceedings in respect of his impending execution; and Criminal Motion No 30 of 2021 (“CM 30”), which was the appellant’s motion for him to be assessed by an independent panel of psychiatrists and for a stay of execution of his sentence in the meantime. The central argument that underlies both these matters concerns an assertion that pertains to the appellant’s mental faculties: it is said that because of an alleged deterioration in the appellant’s mental faculties since the time of his offence, the sentence of death cannot be allowed to be carried out. It is important to note that the assertion does not concern the appellant’s mental faculties at the time of the offence, nearly 13 years ago. Instead, it pertains to his alleged mental faculties today.

We dismiss both CA 61 and CM 30. In our judgment, these proceedings constitute a blatant and egregious abuse of the court’s processes. They have been conducted with the seeming aim of unjustifiably delaying the carrying into effect of the sentence imposed on the appellant; and the case mounted by the appellant’s counsel is baseless and without merit, both as a matter of fact and of law.

Just a few months ago, in Public Prosecutor v Pang Chie Wei and other matters [2021] SGCA 101, we explained that an important function of justice is the attainment of finality. In the context of criminal justice, while the principle of finality is not applied in as unyielding a manner as in the civil context, to echo the observation of this court in Kho Jabing v Public Prosecutor [2016] 3 SLR 135 (at [1]), there must come a time when the last word of the court is the last word, and that the last full stop in a written judgment is not liable to be turned into an open-ended and uncertain ellipsis. Judicial decisions, if they are to mean anything at all, must confer certainty and stability. As we noted further in Kho Jabing v Attorney-General [2016] 3 SLR 1273 (“Kho Jabing”) (at [2]), “no court in the world would allow an applicant to prolong matters ad infinitum through the filing of multiple applications”. This principle applies with even greater force when such further applications are completely bereft of merit, such as those which form the subject matter of this hearing. Counsel who assist their clients in drip-feeding applications and evidence act contrary to their duties, as officers of the court, to assist the court in the administration of justice. This is aggravated when such applications are made without basis and counsel knew or ought reasonably to have known this. Such actions, if allowed to run unchecked, will throw the whole system of justice into disrepute.

Background

The appellant was charged under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) with importing not less than 42.72g of diamorphine on 22 April 2009. He was convicted after trial and sentenced to the mandatory death penalty, and his conviction and sentence was upheld by this court on appeal: see Public Prosecutor v Nagaenthran a/l K Dharmalingam [2011] 2 SLR 830; Nagaenthran a/l K Dharmalingan v Public Prosecutor [2011] 4 SLR 1156 (“Nagaenthran (Appeal)”). After we delivered judgment in Nagaenthran (Appeal), the MDA was amended to introduce a new section, s 33B, which provides that a convicted drug trafficker or importer who satisfies certain requirements may be sentenced to life imprisonment, notwithstanding that the offence he was convicted of would otherwise be punishable with death.

In 2015, the appellant filed Criminal Motion No 16 of 2015 (“CM 16”) and Originating Summons No 272 of 2015 (“OS 272”). In CM 16, he applied for re-sentencing and sought to be sentenced to life imprisonment instead, under s 33B(1)(b) read with s 33B(3) of the MDA. In OS 272, he sought leave to commence judicial review proceedings against the Public Prosecutor in respect of his decision not to issue him a certificate of substantive assistance under s 33B(2)(b) of the MDA. Both CM 16 and OS 272 were dismissed by a High Court judge: see Nagaenthran a/l K Dharmalingam v Public Prosecutor [2017] SGHC 222 (“Nagaenthran (CM)”) and Nagaenthran a/l K Dharmalingam v Attorney-General [2018] SGHC 112 (“Nagaenthran (Judicial Review)”). The High Court dismissed CM 16 because, amongst other things, the appellant was found not to be suffering from an abnormality of mind within the meaning of s 33B(3)(b) of the MDA.

The appeals against the decisions in Nagaenthran (CM) and Nagaenthran (Judicial Review) were dismissed in Nagaenthran a/l K Dharmalingam v Public Prosecutor and another appeal [2019] 2 SLR 216 (“Nagaenthran (CA)”). Pertinently, this court held that the appellant could not avail himself of s 33B(3) of the MDA. Even assuming that he did suffer from an abnormality of mind, such abnormality did not substantially impair his mental responsibility such that s 33B(3) could be invoked (see Nagaenthran (CA) at [40]–[41]).

The appellant then petitioned the President of the Republic of Singapore for clemency, but his application was rejected.¹ The execution of the appellant was eventually scheduled for 10 November 2021. The appellant was notified of this on 27 October 2021.²

The present applications

We now trace the tortuous path by which CA 61 and CM 30 have come before us.

On 2 November 2021, the appellant, through his then counsel on record Mr Ravi s/o Madasamy (“Mr Ravi”), filed OS 1109, seeking leave to commence judicial review proceedings against his impending execution. The sole factual basis furnished for this application was an affidavit of Mr Ravi deposing to, among other things, his “firm belief” as to the appellant’s mental age. Notwithstanding the supposed firmness of his belief, Mr Ravi acknowledged that he did not have the necessary medical expertise to form a view on the question of the appellant’s mental age.³

OS 1109 was heard on 8 November 2021. Notably, during the hearing of OS 1109, Mr Ravi informed the High Court judge (“the Judge”) that he was in possession of an affidavit of the appellant’s brother, Mr Navinkumar a/l K Dharmalingam (“Mr Navinkumar”), in which Mr Navinkumar purportedly “affirms that [the appellant’s] mental condition has deteriorated very significantly”. When asked by the Judge whether this affidavit was before the court, Mr Ravi informed the Judge that he had just filed CM 30 directly to the Court of Appeal and that Mr Navinkumar’s affidavit was included as an exhibit to an affidavit affirmed by Mr Ravi in support of CM 30.

At the conclusion of the hearing, the High Court dismissed OS 1109. The appellant, through his counsel Mr Ravi, filed CA 61 on the very same day to appeal against the High Court’s decision in OS 1109.

We digress to note that CM 30 was filed during the hearing of OS 1109. This was so even though the arguments presented in CM 30 were essentially the same as, if not identical with, the arguments Mr Ravi presented in OS 1109. Further, although OS 1109 was, on its face, an application for leave to commence judicial review proceedings, the appellant’s submissions in OS 1109 included a request for additional time to procure further psychiatric examinations and reports on the appellant’s present mental faculties. In substance, this was the same relief that was then sought in CM 30. It is not clear, nor has it been explained, why it was necessary for the appellant to bring a separate application by way of CM 30. The evidence relied on was available to the appellant and could have been filed in OS 1109 or, at any rate, by the time OS 1109 was heard on 8 November 2021, so that the Judge would have all the material before him.

In CM 30, Mr Navinkumar’s evidence first appeared in the form of an unaffirmed affidavit that was annexed to an affidavit affirmed by Mr Ravi on 8 November 2021. Mr Ravi claimed in that affidavit that Mr Navinkumar had been unable to affirm the affidavit in time for the application in view of the urgency of the matter. However, later that very day (after the dismissal of OS 1109), an affidavit affirmed by Mr Navinkumar was filed. This affidavit had, in fact, been affirmed some three days earlier, on 5 November 2021. It was also evident from its contents that it had been prepared in support of OS 1109 rather than CM 30. In line with this, the appellant’s written submissions in OS 1109 dated 6 November 2021 also made reference to the evidence of the appellant’s family, but ultimately no such evidence was forthcoming. Instead, an affidavit of Mr Navinkumar was mentioned (but not produced) during the hearing of OS 1109 itself. It was subsequently confirmed by the appellant’s counsel on record (who took over the appellant’s case from Mr Ravi), Ms L F Violet Netto (“Ms Netto”),⁴ that Mr Ravi, through the firm he was practising with at the time, had indeed received Mr Navinkumar’s affirmed affidavit on 5 November 2021. This makes it clear that there was no need at all for CM 30 to be separately filed and all the papers, including Mr Navinkumar’s affidavit, could and should have been filed in OS 1109 on or around 5 November 2021. It may in the circumstances be the case that Mr Navinkumar’s evidence was deliberately withheld for the purpose of deploying it in support of a further application,⁵ namely CM 30, in anticipation of OS 1109 being dismissed, as a...