Panchalai a/p Supermaniam and another v Public Prosecutor

CourtCourt of Three Judges (Singapore)
JudgeAndrew Phang Boon Leong JCA
Judgment Date26 April 2022
Neutral Citation[2022] SGCA 37
Citation[2022] SGCA 37
Hearing Date26 April 2022
Published date30 April 2022
Docket NumberCriminal Motion No 12 of 2022
Plaintiff CounselThe first and second applicants (in person)
Defendant CounselWong Woon Kwong, Tan Wee Hao and Andre Chong (Attorney-General's Chambers)
Andrew Phang Boon Leong JCA (delivering the judgment of the court): Introduction

The first applicant, Mdm Panchalai a/p Supermaniam, in Criminal Motion No 12 of 2022 (“CM 12/2022”) is the second applicant’s mother. The second applicant, Mr Nagaenthran a/l K Dharmalingam, is a prisoner facing capital punishment who has exhausted his rights of appeal and almost every other means of recourse under the law. The numerous proceedings spanning some 11 years are detailed below at [5]–[13].

The second applicant was scheduled to be executed on 27 April 2022 for the second time. Just two days before the scheduled execution, the applicants filed CM 12/2022 seeking a stay of his execution pending the filing and disposal of certain applications which the applicants intend to file. They intend to file applications to set aside the decisions in Criminal Appeal No 50 of 2017 (“CCA 50/2017”), Civil Appeal No 98 of 2018 (“CA 98/2018”), Civil Appeal No 61 of 2021 (“CA 61/2021”) and Criminal Motion No 30 of 2021 (“CM 30/2021”) (referred to collectively as “the CA Decisions”) on the basis of a reasonable apprehension of bias. In support of their application, the applicants rely on the primary fact that the presiding Judge of the coram which issued the CA Decisions, Sundaresh Menon CJ, had held the office of the Attorney-General of the Republic of Singapore (“AG”) between 1 October 2010 and 24 June 2012, during which period the second applicant was convicted and his appeal against conviction and sentence was dismissed.

In essence, the applicants’ case is that Menon CJ was the AG who had control, supervision and authority over the second applicant’s prosecution (which includes his conviction and appeal against conviction and sentence), and this was “incompatible” with his judicial function in hearing the CA Decisions. This, in turn, gives rise to a reasonable apprehension of bias. Consequently, the second applicant’s right to a fair trial pursuant to Art 9(1) of the Constitution of the Republic of Singapore (2020 Rev Ed) (the “Constitution”) has been “fundamentally breached” and the CA Decisions are “unconstitutional, unlawful and null and void”. They argue that the Court of Appeal was “bound by law” to have reconstituted the coram without Menon CJ on the coram on the Court’s own initiative. They also assert that the matter was not raised by the coram to counsel representing the second applicant in the hearings leading to the CA Decisions, and that the fact that there was no objection from the second applicant’s counsel is irrelevant. In any case, the second applicant’s rights under Art 9(1) of the Constitution cannot be waived, whether by himself or by counsel.

Having carefully considered the parties’ submissions, we find CM 12/2022 to be devoid of merit and accordingly dismiss it. The present application, which was filed just two days before the scheduled execution, appears to be a calculated attempt to diminish the finality of the judicial process and disrupt the second applicant’s execution. As we have repeatedly reiterated, “no court in the world would allow an applicant to prolong matters ad infinitum through the filing of multiple applications” (Kho Jabing v Attorney-General [2016] 3 SLR 1273 (“Kho Jabing (Abuse of Process)”) at [2]). There must come a time when the last word of the court is the last word. For the second applicant, that time had actually arrived some time ago.

Brief procedural history

On 22 November 2010, the second applicant was convicted under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) for importing not less than 42.72g of diamorphine into Singapore. He was sentenced to suffer death by the High Court (see Public Prosecutor v Nagaenthran a/l K Dharmalingam [2011] 2 SLR 830). His appeal against conviction and sentence was dismissed on 27 July 2011 by the Court of Appeal comprising Chan Sek Keong CJ, Andrew Phang Boon Leong JA and V K Rajah JA (see Nagaenthran a/l K Dharmalingan v Public Prosecutor [2011] 4 SLR 1156).

On 24 February 2015, the second applicant filed Criminal Motion No 16 of 2015 (“CM 16/2015”) under s 33B of the MDA for the death sentence imposed to be substituted with a term of life imprisonment. On 14 September 2017, the High Court dismissed CM 16/2015 (see Nagaenthran a/l K Dharmalingam v Public Prosecutor [2017] SGHC 222). The second applicant filed CCA 50/2017 on 19 September 2017, to appeal against the dismissal of CM 16/2015.

On 27 March 2015, the second applicant filed Originating Summons No 272 of 2015 (“OS 272/2015”) seeking leave to commence judicial review proceedings against the Public Prosecutor’s decision not to grant the certificate under s 33B(2)(b) of the MDA. On 4 May 2018, the High Court dismissed OS 272/2015 (see Nagaenthran a/l K Dharmalingam v Attorney-General [2018] SGHC 112). The second applicant filed CA 98/2018 on 4 June 2018, to appeal against the dismissal of OS 272/2015.

On 8 January 2016, the second applicant filed Criminal Motion No 2 of 2016 (“CM 2/2016”) to the Court of Appeal seeking among other things, a declaration that s 33B of the MDA is unconstitutional and contrary to the rule of law. It is critical to note that the precise matter now alleged in the present CM 12/2022 (ie, that there was an overlap between Menon CJ’s term as AG and the second applicant’s prosecution) had been raised with the second applicant. The court had asked the second applicant’s counsel, Mr Suang Wijaya (“Mr Wijaya”) of Eugene Thuraisingam LLP, during a case management conference on 25 January 2016 whether there was any objection if certain judges, including Menon CJ, were part of the coram hearing CM 2/2016. Mr Wijaya indicated that he would take instructions. At a second case management conference on 11 February 2016, Mr Eugene Thuraisingam (“Mr Thuraisingam”) and Mr Wijaya appeared for the second applicant. Mr Thuraisingam stated that “[a]t the last [PTC], understand that court has asked us to look at whether [the applicants in CM 2/2016, including the second applicant in the present CM 12/2022] have objections to CJ … being on the [coram] of the [Court of Appeal]....

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