Pannir Selvam a/l Pranthaman v Attorney-General

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 21 April 2022
• Neutral Citation: [2022] SGCA 35
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 33 of 2020
• Year: 2022
• Published date: 26 April 2022
• Hearing Date: 26 November 2021,09 March 2021
• Plaintiff Counsel: Lee Ji En (Ascendant Legal LLC) (instructed) and Too Xing Ji (BMS Law LLC)
• Defendant Counsel: Ng Yong Kiat Francis SC, Loo Yu Hao Adrian and Teo Siu Ming (Attorney-General's Chambers)
• Citation: [2022] SGCA 35

Judith Prakash JCA (delivering the grounds of decision of the court):Introduction

This appeal concerned the appellant’s application for leave to commence judicial review proceedings in respect of decisions made by the Public Prosecutor (“PP”), the Cabinet, and the Singapore Prison Service (“SPS”). Its primary focus, however, was the decision of the PP not to issue the appellant a certificate of substantive assistance (“CSA”) pursuant to s 33B(2)(b) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). The High Court Judge (“the Judge”) dismissed the application, finding that the appellant had not established a prima facie case of reasonable suspicion in favour of granting the remedies sought (see Pannir Selvam a/l Pranthaman v Attorney-General[2020] SGHC 80 (“the GD”)). Dissatisfied, the appellant appealed against the Judge’s decision.

The appeal raised several issues, such as the PP’s entitlement to participate in leave applications, how the SPS should deal with requests made by litigants against the State to interview prison inmates, and whether the sitting Attorney-General (“AG”) is required to review CSA determinations made by a previous AG. The appeal also provided us with the opportunity to canvass an important issue, namely, the test to be applied by the PP in considering whether information provided by the accused person had substantively assisted the Central Narcotics Bureau (“CNB”) within the meaning of s 33B(2)(b) of the MDA. We explore these matters below.

The appeal was first heard on 9 March 2021. We reserved judgment. Following this, the parties were granted leave to file further affidavits and further written submissions. We heard the appeal again on 26 November 2021. After the hearing, we dismissed the appeal, giving brief grounds. These are our full grounds of decision.

The factsThe appellant’s conviction and sentence

On 2 May 2017, the appellant was convicted on a capital charge of importing not less than 51.48g of diamorphine into Singapore, an offence under s 7 of the MDA (see Public Prosecutor v Pannir Selvam Pranthaman [2017] SGHC 144). On sentence, the High Court observed at [38] that although the appellant’s involvement in the offence fell within s 33B(2)(a)(i) of the MDA, no CSA had been issued in his favour. Accordingly, the mandatory death sentence was passed on the appellant. The appellant’s appeal in CA/CCA 21/2017 against his conviction and sentence was dismissed by this court on 9 February 2018.

Information disclosed by the appellant to the CNB

Prior to the appellant’s trial in the High Court, the appellant had provided the following information to the CNB by way of four statements recorded after his arrest, specifically, on 9, 10 and 24 September 2014 (see the GD at [51]–[52]):he was supposed to deliver the drugs to one “Jimmy”;Jimmy was a male Malay working as a security guard at Block 1004 Lorong 8 Toa Payoh Industrial Park (“the Industrial Park”) in or around August and September 2014;Jimmy was dark-skinned, had short hair and did not wear glasses;Jimmy contacted the appellant using a particular phone number (“the Phone Number”), which the appellant provided to the CNB;the appellant had delivered bundles to Jimmy on three occasions prior to his arrest, the first being on 22 August 2014; andon the first occasion, the appellant had placed a plastic bag containing three bundles into the basket of a bicycle chained to a tree at the Industrial Park. From the overhead bridge overlooking the Industrial Park, the appellant had observed Jimmy looking around for 15 to 20 minutes before collecting the plastic bag from the bicycle.

Some three years later, following the dismissal of the appellant’s appeal against his conviction and sentence, the appellant also provided the CNB with information relating to one “Anand”, the person who had allegedly instructed him to transport the drugs into Singapore on the day of his arrest. The appellant provided the CNB with what he believed to be Anand’s full name, identification number, present and previous addresses, vehicle description and registration number, pictures and other related information. According to the appellant, this information could not have been furnished any earlier as it was only uncovered post-appeal through the efforts of the appellant’s family (see the GD at [58]).

The clemency application

After the dismissal of his appeal against conviction and sentence, the appellant, his family and his solicitors at the time submitted petitions for clemency to the President. On 17 May 2019, the appellant and his family were notified that the President had declined to exercise her power under Art 22P(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”) to commute the appellant’s death sentence. The appellant and his family were informed by the SPS that he would be executed on 24 May 2019 (see the GD at [5]–[6]).

The stay of execution

On 21 May 2019, the appellant filed CA/CM 6/2019 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 decision not to issue him a CSA. The stay of execution was granted by this court on 23 May 2019, and the appellant was given time to prepare and file his intended application.

The appellant’s attempts to interview Zamri

Subsequently, on 10 June 2019, the appellant’s solicitors applied online to the SPS requesting permission to interview one Zamri bin Mohd Tahir (“Zamri”), an inmate of the prison, on 14 June 2019. The stated reason as selected from a drop-down menu was “[i]nterview inmate who may become a defence witness”. At this time, Zamri had been convicted on a capital charge and was awaiting execution.

On 11 June 2019, the Attorney-General’s Chambers (“AGC”) wrote to the appellant’s solicitors requesting “full particulars as to how, and why, any evidence that Zamri may provide would be relevant to [the appellant’s] intended application”. The appellant’s solicitors replied that they were unable to provide the information requested as (a) they had not yet interviewed Zamri; (b) they were unable to disclose the appellant’s instructions as they were confidential; and (c) the contents of the interview with Zamri would be protected by litigation privilege. Further correspondence was exchanged by the parties between 11 June 2019 and 14 June 2019. In this exchange, the AGC took the position that no privilege attached to the information sought. By 14 June 2019, the request to interview Zamri had not been approved, so the appellant’s solicitors did not interview him on that date.

On 19 June 2019, the appellant’s solicitors wrote to the AGC stating that the appellant had authorised them to disclose the relevance of Zamri’s potential evidence. Specifically, Zamri was the person identified as Jimmy in the appellant’s statements to the CNB, and the appellant believed that the information he provided regarding Jimmy had led to Zamri’s arrest. The appellant’s solicitors also set out the contents of what Zamri had informed the appellant, explaining that they wished to interview Zamri in order to confirm this information and reduce Zamri’s evidence into an affidavit. On this basis, the appellant’s solicitors inquired whether the SPS would approve their request to interview Zamri.

On 20 June 2019, the AGC again refused the appellant’s request on the basis that the appellant was already able to plead his case in respect of his application for leave to commence judicial review.

The application for leave to commence judicial review

On 24 June 2019, the appellant filed HC/OS 807/2019 (“OS 807”) seeking the leave of the court to commence judicial review proceedings. The appellant’s application was based on three main grounds.

First, the decision of the PP not to issue him a CSA (“the PP Decision”) was contested. The appellant argued that as he had not been served with a notice informing him of the possibility that he could avoid the death penalty by providing substantive assistance (the Mandatory Death Penalty Notice, hereafter abbreviated “the MDP Notice”), the PP Decision was unconstitutional and/or tainted by procedural impropriety. Furthermore, given that he had substantively assisted the CNB by providing information about Jimmy and Anand, the PP Decision was illegal and/or irrational. The appellant also argued that the question of the grant of the CSA to him had to be reviewed by the sitting AG at the time that the appellant was due to be sentenced.

Second, the appellant contested the Cabinet’s action in advising the President not to commute his death sentence (“the Cabinet Advice”). The appellant contended that the Cabinet had failed to take into account the substantive assistance he had rendered to the CNB.

Third, the SPS’s refusal to grant him access to interview Zamri (“the SPS Decision”) was impugned. The appellant alleged that such refusal was irrational, procedurally improper and motivated by the improper purpose of seeking the premature disclosure of privileged information and frustrating the appellant’s preparation for his case.

On 25 June 2019, the AGC informed the appellant that since he had filed OS 807 and had stated on affidavit his case in relation to Zamri, the SPS had no objections to the appellant’s solicitors interviewing Zamri. The appellant’s solicitors subsequently interviewed Zamri on 26 June 2019 and 28 June 2019.

The decision below

OS 807 was heard on 11 February 2020 and dismissed on 12 February 2020, with the GD released on 24 April 2020. Preliminarily, the Judge held that the respondent was entitled to file reply affidavits in response to the appellant’s application. The Judge observed that “[w]here public judicial review is concerned, the AG has a right to attend and to be heard” and that the courts had readily accepted affidavits filed by the AG (see the GD at...