Nagaenthran a/l K Dharmalingam v AG

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JCA,Judith Prakash JCA,Belinda Ang Saw Ean JAD,Chao Hick Tin SJ
• Judgment Date: 29 March 2022
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 61 of 2021 and Criminal Motion No 30 of 2021

Nagaenthran a/l K Dharmalingam

and

Attorney-General and another matter

[2022] SGCA 26

Sundaresh Menon CJ, Andrew Phang Boon Leong JCA, Judith Prakash JCA, Belinda Ang Saw Ean JAD and Chao Hick Tin SJ

Civil Appeal No 61 of 2021 and Criminal Motion No 30 of 2021

Court of Appeal

Constitutional Law — Judicial review — Application for leave to commence judicial review proceedings — Whether application should be granted

Criminal Procedure and Sentencing — Criminal motions — Criminal motion for assessment of accused person by independent panel of psychiatrists and for stay of execution of sentence — Whether motion should be granted

Criminal Procedure and Sentencing — Initiation of proceedings — Accused person filing criminal motion without underlying substantive criminal matter — Whether there was jurisdictional basis for criminal motion

Held, dismissing CA 61 and CM 30:

(1) CA 61 and CM 30 constituted a blatant and egregious abuse of the court's processes. They were 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 was baseless and without merit, both as a matter of fact and of law: at [2].

(2) There was a manifest lack of good faith in the conduct of the appellant and his counsel in relation to the matter. The conduct of the appellant's case could not be said to be anything other than the drip-feeding of applications in a bid to thwart the court's efforts to discharge its responsibility to dispose of the matter timeously, in accordance with its merits: at [17] and [24].

(3) In CA 61, there was no admissible evidence showing any decline in the appellant's mental condition after the commission of the offence. All that was before the court was the bare assertion of the appellant's then counsel, Mr Ravi s/o Madasamy (“Mr Ravi”), as to the appellant's mental condition. However, this was irrelevant and inadmissible. Mr Ravi had no medical expertise, and he was in effect speculating what the appellant's mental age was. Mr Ravi also could not be said to be a disinterested party and, by reason of his engagement as counsel, should not even have been putting himself forward as a material witness. In addition, his opinion was based on a single interaction with the appellant which lasted less than half an hour. The judge in OS 1109 was plainly correct to find that there was no credible basis on which Mr Ravi's assertions could be believed: at [33] and [34].

(4) The evidence raised by the respondent also undermined the appellant's case. The prison officer in charge of observing the appellant deposed that the appellant displayed no abnormality in his behaviour after he was informed of the execution date. As the prison officer had no interest in seeing that the appellant be executed, there was no reason to disbelieve his testimony: at [35] and [50].

(5) Further, the respondent was prepared to tender reports in respect of psychiatric and medical assessments of the appellant, but the appellant's counsel objected to their admission, citing the appellant's interest in medical confidentiality. Yet, these records and reports could have been highly probative evidence in the court's assessment of the appellant's mental condition, if this was in fact a genuine concern. The objection mounted on the appellant's behalf supported the inference that he was aware of the evidential difficulties with his case, and was seeking to prevent the court from accessing that evidence because he knew or believed it would undermine his case: at [36] and [37].

(6) CM 30 could not be entertained as it had no jurisdictional basis. Criminal motions were properly used to invoke the court's criminal jurisdiction. However, there was no substantive criminal matter that CM 30 had been filed in support of or in connection with. CM 30 was, at best, an attempt to adduce additional evidence to support CA 61 and that was procedurally improper: at [40] and [41].

(7) Even if CM 30 were to be considered, the additional evidence sought to be adduced in CM 30 was available earlier in OS 1109 but was seemingly deployed in a cynical and tactical manner in an attempt to stymie the resolution of the court process. This alone, amounting as it did to an abuse of process, would doom CM 30: at [45] and [47].

(8) In any event, the evidence of the appellant's brother – upon which CM 30 was premised – was wholly unreliable. The appellant's brother was an interested witness and unqualified to opine on the appellant's medical state or mental faculties. There were also material unexplained differences between his affidavits, which raised further questions as to his credibility. His evidence was also contradicted by that of the prison officer in charge of observing the appellant: at [48] to [50].

(9) Finally, no reliance could be placed on the two expert reports tendered by the appellant, because the experts had not examined or even spoken to the appellant and had not seen his present medical records. There was also no explanation for the failure to file these reports in OS 1109: at [54].

[Observation: The plain language of Arts 9(1) and 12(1) of the Constitution could not be ignored or rewritten by the court in order to accommodate a supposed rule of international law prohibiting the execution of intellectually disabled persons, assuming such a rule was shown to exist. Further, even assuming that the treaty obligations or customary international law norms to the effect contended for by the appellant existed, neither customary international law nor treaty law could trump an inconsistent domestic law that was clear and unambiguous in its terms. The framework of the MDA was unambiguous: once the Court of Appeal affirmed the decision of the High Court as to the guilt of the appellant, it had to impose the mandatory death penalty unless the appellant came within s 33B of the MDA, and it was not open to the court to imply or create new carve-outs that empowered it to avoid imposing the prescribed mandatory death penalty: at [57] and [58].

When every single action on the part of one party was done in a manner that was contrary to the applicable rules and contrary even to basic expectations of fairness to the other party and of courtesy to the court, it became difficult to accept that there was an innocent explanation for this. This would be heightened when either no explanations were offered, or explanations that were offered were shown to be untrue: at [24].

Lawyers should be mindful that their advice had to be accurate, measured and in service to the interests of justice. Counsel who filed unmeritorious applications, when they knew or ought reasonably to know that the application was without basis, were acting improperly. This would be readily found to be the case where the application was patently unmeritorious. Counsel might well have passionate views that ran counter to the imposition of the death penalty. At a societal level, the proper recourse for them and indeed for anyone similarly situated would be to seek legislative change if they were minded to do so. But as long as the law validly provided for the imposition of capital punishment in the specified circumstances, it would be improper for counsel to abuse the process of the court and thereby bring the administration of criminal justice into disrepute by filing one hopeless application after another and by drip-feeding the supposed evidence: at [67] to [69].]

Case(s) referred to

Amarjeet Singh v PP [2021] 4 SLR 841 (folld)

Arun Kaliamurthy v PP [2014] 3 SLR 1023 (refd)

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

Juma'at bin Samad v PP [1993] 2 SLR(R) 327; [1993] 3 SLR 338 (refd)

Kho Jabing v AG [2016] 3 SLR 1273 (refd)

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

Ladd v Marshall [1954] 1 WLR 1489 (refd)

Miya Manik v PP [2021] 2 SLR 1169 (refd)

Nagaenthran a/l K Dharmalingam v AG [2018] SGHC 112 (refd)

Nagaenthran a/l K Dharmalingan v PP [2011] 4 SLR 1156, CA (refd)

Nagaenthran a/l K Dharmalingam v PP [2017] SGHC 222 (refd)

Nagaenthran a/l K Dharmalingam v PP [2019] 2 SLR 216, CA (refd)

PP v ASR [2019] 1 SLR 941 (refd)

PP v Mohd Ariffan bin Mohd Hassan [2018] 1 SLR 544 (refd)

PP v Nagaenthran a/l K Dharmalingam [2011] 2 SLR 830 (refd)

PP v Pang Chie Wei [2022] 1 SLR 452 (refd)

Ramalingam Ravinthran v AG [2012] 2 SLR 49 (refd)

Sanjay Krishnan v PP [2022] SGCA 21 (refd)

Syed Suhail bin Syed Zin v PP [2021] 2 SLR 377 (refd)

Yong Vui Kong v PP [2010] 3 SLR 489, CA (refd)

Yong Vui Kong v PP [2012] 2 SLR 872, CA (refd)

Yong Vui Kong v PP [2015] 2 SLR 1129, CA (refd)

Facts

Nagaenthran a/l K Dharmalingam (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 the Court of Appeal.

On 2 November 2021, the appellant filed Originating Summons No 1109 of 2021 (“OS 1109”), seeking leave to commence judicial review proceedings in respect of his impending execution. During the hearing of OS 1109 on 8 November 2021, the appellant filed 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. Following the dismissal of OS 1109 at the conclusion of the hearing, the appellant filed Civil Appeal No 61 of 2021 (“CA 61”) against the dismissal on the very same day.

The central factual contention of the appellant was that his mental condition had deteriorated after the commission of his offence, such that he had a mental age below 18; as a result, he did not appear to understand what he was facing in relation to his pending execution. The appellant argued that consequently, his execution was...