Pannir Selvam a/l Pranthaman v Attorney-General

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 17 September 2019
• Neutral Citation: [2019] SGHC 217
• Date: 17 September 2019
• Docket Number: Originating Summons No 807 of 2019 (Summons Nos 3167 and 3764 of 2019)
• Published date: 24 September 2019
• Plaintiff Counsel: Too Xing Ji and Lee Ji En (BMS Law LLC)
• Defendant Counsel: Ng Yong Kiat, Francis SC, Adrian Loo Yu Hao and Jarret Huang Jinghao (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Hearing Date: 19 July 2019,19 August 2019
• Subject Matter: Application,Administrative Law,Appeals,Judicial review,Discovery of documents,Civil Procedure,Leave

See Kee Oon J: Introduction

Summons No 3167 of 2019 (“SUM 3167/2019”) and Summons No 3764 of 2019 (“SUM 3764/2019”) arose from an application for leave to commence judicial review proceedings in Originating Summons No 807 of 2019 (“OS 807/2019”).

In SUM 3167/2019, which was heard on 19 July 2019, the applicant sought discovery of documents and leave to serve interrogatories against the Government, represented by the Attorney-General (“the AG”). After hearing the parties, I dismissed the application.

In SUM 3764/2019, which was heard on 19 August 2019, the applicant sought leave to appeal against my decision in SUM 3167/2019. Having heard the parties, I declined to grant leave to appeal. The hearing of OS 807/2019 was adjourned to a date to be fixed in view of the applicant’s expressed intention to apply to the Court of Appeal for leave to appeal.

Brief oral remarks were made before I dismissed both applications. In these grounds of decision, I set out my reasons in full.

Facts Background

The applicant was convicted by the High Court on 2 May 2017 on a capital charge of importing not less than 51.84g of diamorphine into Singapore, an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), punishable under s 33 of the MDA. The trial judge found that the applicant was a “courier” within the meaning of s 33B of the MDA, but was informed by the Prosecution that the Public Prosecutor (“the PP”) would not be certifying that the applicant had rendered substantive assistance under s 33B(2)(b) of the MDA. Accordingly, the trial judge passed the mandatory death sentence on the applicant. The applicant appealed against his conviction.

On 9 February 2018, the Court of Appeal dismissed his appeal. Thereafter, the applicant, his siblings, their parents, and the applicant’s then-counsel, Mr Eugene Thuraisingam, submitted petitions for clemency to the President.¹

On 17 May 2019, the applicant and his next-of-kin were notified, through letters issued by the President’s Office, that the President had declined to exercise her power under Art 22P(1) of the Constitution of the Republic of Singapore (1999 Reprint) (“the Constitution”) to grant clemency to the applicant, and that the sentence of death would stand.² On that same day, the applicant’s next-of-kin also received letters from the Singapore Prison Service (“SPS”) informing them that the death sentence passed on the applicant would be carried out on 24 May 2019.³

Procedural history

On 21 May 2019, the applicant filed Criminal Motion No 6 of 2019 to the Court of Appeal, seeking a stay of his scheduled execution, on the basis that he intended to challenge the rejection of his clemency petition and the PP’s refusal to issue a certificate of substantive assistance.⁴

The Court of Appeal heard the matter on 23 May 2019 and granted the applicant a stay of execution for him to file his intended application to challenge the execution of his sentence of death.⁵ The applicant was directed to file his intended application, as well as any supporting evidence by 6 June 2019.

After applying for and obtaining several extensions of time, the applicant filed OS 807/2019 as well as a statement under O 53 r 1(2) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”) on 24 June 2019.

The next day, on 25 June 2019, the applicant brought SUM 3167/2019 for specific discovery and leave to serve interrogatories against the Government, represented by the AG.

SUM 3167/2019

The applicant’s case in OS 807/2019 consisted of a series of challenges against the PP, the SPS, the Cabinet and the President. For completeness, I note that after my decision on SUM 3167/2019 was rendered on 19 July 2019, the applicant confirmed on 19 August 2019 that he was withdrawing his application for leave to commence judicial review to seek a Quashing Order in respect of the President’s Order (refusing clemency).⁶ This was on the basis that the President’s Order was no longer of any effect. I granted leave for withdrawal accordingly.⁷ My decisions in both summonses were, however, not affected by this.

In the main proceedings, OS 807/2019, the applicant’s written submissions contended that, inter alia: he was not served with the Mandatory Death Penalty (“MDP”) Notice at the time of his arrest, which resulted in him not being given notice that he could “save his life by providing substantive assistance when he was arrested”;⁸ following the dismissal of the applicant’s appeal, the applicant had provided information to the PP that should have been considered as sufficient for the purposes of obtaining a certificate of substantive assistance;⁹ and he had provided information to the PP that assisted the Central Narcotics Bureau (“CNB”) in investigating and arresting Zamri bin Mohd Tahir (“Zamri”), a drug trafficker, which should have been sufficient for the purposes of obtaining a certificate of substantive assistance.¹⁰

It was for these reasons that the applicant originally sought specific discovery of the following three items, when he filed SUM 3167/2019 for discovery and interrogatories on 25 June 2019:¹¹ the MDP Notice that was purportedly read to and signed by the applicant at the time of arrest; the applicant’s signed statement as recorded by Investigating Officer Neo Zhan Wei (“IO Neo”) on or about 24 September 2018 when the latter went to Changi Prison (“the 24 September 2018 report”); and documents in relation to Zamri’s phone number, consisting of the request for subscriber’s particulars of mobile number +65XXXXX012 and the call trace report for mobile number +65XXXXX012 (“Zamri’s phone number documents”).

The interrogatories sought by the applicant, on the other hand, were primarily concerned with the clemency process, and were directed at the President’s Office, the AG, and the Cabinet. They consisted of:¹² Questions on the post-dating of letters by the President’s Office: When did the AG issue his opinion under Art 22P of the Constitution? When did the Cabinet receive the reports and the AG’s opinion under Art 22P(2) of the Constitution? When did the Cabinet decide that the law should be allowed to take its course in relation to the applicant? When did the Cabinet inform the President of their advice? Why did the President’s Office decide to post-date the three letters from 7 May 2019 to 17 May 2019? Question on whether the procedural requirements under Art 22P of the Constitution had been satisfied: Did the AG’s opinion under Article 22P(2) of the Constitution take into consideration: the information provided and the applicant’s further statement recorded from his interviews with IO Neo on 20 August 2018 and 24 September 2018 respectively; the applicant’s parents’ petition for clemency dated 25 October 2018; the applicant’s siblings’ petition for clemency dated 25 October 2018; the applicant’s petition for clemency dated 10 November 2018; the representations sent by the applicant’s previous lawyers, M/s Eugene Thuraisingam LLP, dated 20 February 2019; and the petition for clemency sent by the applicant’s previous lawyers, M/s Eugene Thuraisingam LLP, dated 26 February 2019.

By the date of the hearing, however, the applicant was no longer requesting for specific discovery of the MDP Notice; on 2 July 2019, counsel for the applicant was granted the opportunity to, and did inspect the MDP Notice at the AG’s office. The MDP Notice was also exhibited in one of the reply affidavits to OS 807/2019 filed on behalf of the AG, on 1 July 2019.¹³

In the same vein, the applicant’s interrogatory that concerned the issue of post-dating of letters by the President’s Office (see [15(a)(v)] above), had been answered in the affidavits of Lee Kah Chong Benny and Toh Gek Choo.¹⁴ Counsel for the applicant thus no longer pursued that question.

Issues to be determined

There were three key issues that arose before me in SUM 3167/2019. First, whether discovery may be allowed in judicial review proceedings. Secondly, assuming that discovery may be allowed, the stage at which discovery applications are to be made. Thirdly, assuming that discovery may be allowed and the application was properly brought, whether the present applications ought to be granted.

There was also a preliminary point concerning whether, procedurally, s 34(1) of the Government Proceedings Act (Cap 121, 1985 Rev Ed) (“GPA”) applied to preclude any order for discovery in SUM 3167/2019 as the Government was not yet a party to civil proceedings.

Section 34(1) of the GPA

Section 34(1) of the GPA states:

Subject to and in accordance with Rules of Court — (a) in any civil proceedings in the High Court or a State Court to which the Government is a party, the Government may be required by the court to make discovery of documents and produce documents for inspection; and (b) in any such proceedings as aforesaid, the Government may be required by the court to answer interrogatories …

…

[emphasis added]

The phrase “civil proceedings” is in turn defined under s 2(2) of the GPA as:

proceedings of whatever kind of a civil nature before a court and includes proceedings for judicial review and recovery of fines and penalties and an application at any stage of a proceeding … [emphasis added]

The effect of s 34(1) of the GPA, according to the AG, is that the Government may only be required to make discovery of documents or answer interrogatories once it is a party to civil proceedings in the High Court or a State Court. As leave for judicial review has yet to be granted in OS 807/2019, the Government is not yet a party to civil proceedings and discovery may not be ordered against it. Section 34(1) of the GPA should also be read in accordance with s 54 of the Interpretation Act (Cap 1, 2002 Rev Ed) (“IA”), which provides that “[n]o Act shall in any manner whatsoever affect the rights of the Government unless it is therein...