Nazeri bin Lajim v Attorney-General

• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 21 July 2022
• Neutral Citation: [2022] SGCA 55
• Citation: [2022] SGCA 55
• Court: Court of Appeal (Singapore)
• Published date: 26 July 2022
• Docket Number: Civil Appeal No 29 of 2022
• Plaintiff Counsel: The appellant in person
• Defendant Counsel: Anandan Bala, Chan Yi Cheng and Rimplejit Kaur (Attorney-General's Chambers)
• Subject Matter: Constitutional Law,Equal protection of the law,Fundamental liberties,Right to life and personal liberty,Judicial review,Criminal Procedure and Sentencing,Stay of execution
• Hearing Date: 21 July 2022

Andrew Phang Boon Leong JCA (delivering the judgment of the court ex tempore): Introduction

In 2017, Mr Nazeri bin Lajim (the “appellant”) was convicted on a capital charge and sentenced to the mandatory death penalty. On 19 July 2022, three days before his scheduled execution on 22 July 2022, the appellant filed Originating Application No 347 of 2022 (the “Originating Application”) seeking: (a) a declaration that the Attorney-General (“AG”) had arbitrarily imposed the capital charge upon him in breach of his rights under Arts 9(1) and 12(1) of the Constitution of the Republic of Singapore (2020 Rev Ed) (the “Constitution”) and (b) a prohibiting order and/or a stay of execution in respect of the execution of his sentence of death, pending the disposal of this matter.

A judge of the General Division of the High Court (the “Judge”) heard the Original Application on an expedited basis on 20 July 2022 and dismissed it, but made no order as to the stay of the execution of the appellant’s sentence of death. The appellant appealed against the Judge’s decision and an expedited appeal was ordered and heard at 2.30 pm today by this court.

Before the commencement of the hearing, the appellant filed further submissions seeking time to consult and/or hire a lawyer to present the arguments he had made in support of his Originating Application. We rejected his request for an adjournment, for reasons which will be elaborated upon below.

Background

On 8 August 2017, the appellant was convicted by the High Court on a capital charge of possessing two bundles containing not less than 33.39g of diamorphine for the purpose of trafficking under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (the “MDA”) (see Public Prosecutor v Dominic Martin Fernandez and another [2017] SGHC 226 (“Nazeri (HC Conviction)”) at [1] and [54]). As the appellant did not fulfil any of the criteria in the alternative sentencing regime under s 33B of the MDA, he was sentenced to the mandatory death penalty pursuant to s 33(1) of the MDA (Nazeri (HC Conviction) at [57]–[58]). Meanwhile, the appellant’s co-offender, who was arrested by the Central Narcotics Bureau (“CNB”) in the same operation and in respect of the same subject matter as the appellant, was convicted of trafficking in not less than 35.41g of diamorphine under s 5(1)(a) of the MDA, but qualified for the alternative sentencing regime under s 33B of the MDA and was sentenced to life imprisonment and 15 strokes of the cane (Nazeri (HC Conviction) at [1], [34] and [57]–[58]).

The appellant’s appeal against his conviction and sentence was dismissed by this court in CA/CCA 42/2017 (“CCA 42”) on 4 July 2018.

On 1 October 2020, the appellant, along with 21 other plaintiffs, filed an application in HC/OS 975/2020 for pre-action discovery and leave to serve pre-action interrogatories against the AG and the Superintendent of Changi Prison in respect of the disclosure of personal correspondence of some of the plaintiffs in the possession of the Attorney-General’s Chambers (“AGC”). The General Division of the High Court dismissed the application in HC/OS 975/2020 on 16 March 2021 (see Syed Suhail bin Syed Zin and others v Attorney-General and another [2021] 4 SLR 698 (“Syed Suhail (OS 975)”). It was undisputed that no correspondence was sought by the AG or forwarded to the AG by the Singapore Prison Service in respect of the appellant (see Syed Suhail (OS 975) at [7]). No appeal has been filed against the General Division of the High Court’s decision in Syed Suhail (OS 975).

On 9 March 2021, the appellant filed CA/CM 12/2021 (“CM 12”) to the Court of Appeal seeking leave pursuant to s 394H of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to file an application for review of the Court of Appeal’s decision in CCA 42. The Court of Appeal summarily dismissed CM 12 (see Nazeri bin Lajim v Public Prosecutor [2021] SGCA 41).

Thereafter, on 13 August 2021, the appellant and 16 other plaintiffs filed HC/OS 825/2021 (“OS 825”) seeking declaratory relief to the effect that the CNB and the AG had discriminated against persons of Malay ethnicity in investigating and prosecuting capital drugs offences under the MDA, in violation of their constitutional rights. On 2 December 2021, the General Division of the High Court dismissed the application (see Syed Suhail bin Syed Zin and others v Attorney-General [2021] SGHC 274 (“Syed Suhail (OS 825)”). There was no appeal against this decision.

The President’s order for the appellant’s execution under s 313(f) of the CPC was issued on 6 July 2022, and the Warrant of Execution under s 313(g) of the CPC was issued on 8 July 2022 for the death sentence to be carried out on 22 July 2022.

On 19 July 2022, three days before his scheduled execution, the appellant filed the Originating Application seeking: (a) a declaration that the AG had arbitrarily imposed the capital charge upon him in breach of his rights under Arts 9(1) and 12(1) of the Constitution and (b) a prohibiting order and/or a stay of execution in respect of the execution of his sentence of death, pending the disposal of this matter.

The parties’ cases

Before the Judge, the appellant argued that his rights under Art 9(1) of the Constitution (“Art 9(1)”) were violated on the basis that the deprivation of his life is in breach of his rights under Art 12(1) of the Constitution (“Art 12(1)”).

In respect of his challenge pursuant to Art 12(1), the appellant submitted that he was to be regarded as equally situated with other accused persons who – in relation to the MDA offences of trafficking, possession for the purpose of trafficking and importing – were caught with drugs of a quantity that was above the minimum amount required to attract the mandatory death penalty (ie, the capital threshold). However, he argued that the AG had acted arbitrarily and unfairly in preferring and maintaining a capital charge against him, whilst reducing the charges of other equally situated accused persons from a capital charge (ie, for a quantity of drugs above the capital threshold) to a non-capital charge (ie, for a quantity of drugs below the capital threshold). The appellant therefore submitted that by placing him on trial for a capital charge, the AG had breached his rights under Art 12(1).

On a related note, the appellant complained of the lack of transparency as to how, and on what legal basis, the AG exercises his discretion in preferring a capital or non-capital charge. In Exhibit A of his affidavit, the appellant listed cases wherein the convicted offenders faced a non-capital charge despite trafficking in a quantity above the capital threshold, and sought a court order for the AG to further disclose detailed records of accused persons whose charges were reduced from a capital to a non-capital charge, and those who were not given this reduction.

Lastly, the appellant sought to clarify that the Originating Application was not an abuse of process. He asserted his belief that this application was meritorious, and claimed that he had, for “a very long time”, wanted to raise these issues but was unable to because no lawyer was willing to take up his case. The appellant also alleged that the counsel who represented him in Syed Suhail (OS 825), Mr Ravi s/o Madasamy (“Mr Ravi”), tried to raise this issue back in 2021, but he found out recently that his counsel had not appropriately addressed the matter and had instead “mixed up and/or combined the issue with racial discrimination” against persons of Malay ethnicity. As a result, the issues which the appellant now raise in this Originating Application, were overlooked.

In response, the AG argued that the Originating Application, which was filed only after the appellant had been notified of his execution date, was an abuse of process. The AG argued that the application was time-barred under O 24 r 5(2) of the Rules of Court 2021 because it was brought more than three months after the prosecutorial decision was made to proceed against the appellant in the High Court for a capital charge for being in possession of not less than 35.41g of diamorphine for the purpose of trafficking. There was no reason why the present application could not have been filed earlier, especially since the appellant had filed a similar constitutional challenge in OS 825. It could therefore be inferred that the true purpose of the Originating Application was to frustrate the appellant’s scheduled execution from being carried out on 22 July 2022.

The AG, in any event, dealt with the Originating Application on its merits. The AG pointed out that leave must be obtained to commence judicial review proceedings, and in so far as the three-fold leave requirements were concerned (see below at [24]),...