Pannir Selvam a/l Pranthaman v Attorney-General

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 24 April 2020
• Neutral Citation: [2020] SGHC 80
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 807 of 2019
• Year: 2020
• Published date: 30 April 2020
• Hearing Date: 12 February 2020,11 February 2020
• Plaintiff Counsel: Too Xing Ji (BMS Law LLC) and Lee Ji En (Ascendant Legal LLC)
• Defendant Counsel: Francis Ng Yong Kiat SC, Adrian Loo Yu Hao and Teo Siu Ming (Attorney-General's Chambers)
• Citation: [2020] SGHC 80

See Kee Oon J: Introduction

This was an application by Pannir Selvam a/l Pranthaman (“the Applicant”) for leave to commence judicial review proceedings under O 53 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“the ROC”). The Applicant sought judicial review of the following: the decision of the Public Prosecutor (“the PP”) not to issue a Certificate of Substantive Assistance (“CSA”) to the Applicant under s 33B of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”); the advice of the Cabinet of the Republic of Singapore (“the Cabinet”) to the President of the Republic of Singapore (“the President”) that the law should be permitted to take its course in relation to the Applicant; and the refusal of the Singapore Prison Service (“the SPS”) to grant the Applicant permission to interview one Zamri bin Mohd Tahir (“Zamri”), a person in the custody of the SPS.

The Applicant originally sought prerogative relief against the PP, the SPS, the Cabinet and the President. However, the Applicant subsequently withdrew his prayers against the President¹ and some of his prayers against the SPS.² As of the first day of the hearing on 11 February 2020, the Applicant’s prayers were as follows:³ a Quashing Order quashing the PP’s exercise of discretion in failing to issue a CSA to the Applicant; a Mandatory Order obliging the PP to issue a CSA to the Applicant; in the alternative to (b), a Mandatory Order obliging the PP to determine afresh the issue of whether the Applicant had substantively assisted the Central Narcotics Bureau (“the CNB”) in disrupting drug trafficking activities within or outside Singapore under s 33B of the MDA; an Order that the Applicant’s case be remitted to the appropriate court to re-consider and pass the appropriate sentence under s 33B(1) of the MDA; a Quashing Order quashing the action of the SPS in failing to approve the Applicant’s request to interview Zamri; a Quashing Order quashing the Cabinet’s action in advising the President that the law should be allowed to take its course in relation to the Applicant; and a Mandatory Order obliging the Cabinet to issue new advice to the President in relation to the Applicant’s sentence.

After carefully considering the submissions canvassed before me, I concluded that the Applicant had not succeeded in establishing an arguable case or a prima facie case of reasonable suspicion in favour of granting the remedies sought. I therefore dismissed the application for leave to commence judicial review proceedings. The Applicant, being dissatisfied with my decision, has appealed. I set out the full grounds of my decision below.

Background to the application The Applicant’s conviction and clemency petition

On 2 May 2017, the Applicant was convicted by the High Court on a capital charge of importing not less than 51.84g of diamorphine into Singapore, an offence under s 7 of the MDA and punishable under s 33(1) of the MDA (see Pannir Selvam a/l Pranthaman v Public Prosecutor [2017] SGHC 144 at [38]). The High Court found that the Applicant was a “courier” within the meaning of s 33B of the MDA. However, as the PP did not issue a CSA, the High Court was obliged by law to impose the mandatory death sentence on the Applicant.

On 9 February 2018, the Applicant’s appeal against his conviction and sentence was dismissed by the Court of Appeal in Criminal Appeal No 21 of 2017 (CA/CCA 21/2017).⁴ Subsequently, the Applicant, his siblings, their parents, and the Applicant’s then-counsel, Mr Eugene Thuraisingam, submitted petitions for clemency to the President.⁵

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 (1985 Rev Ed, 1999 Reprint) (“the Constitution”) to commute the Applicant’s death sentence.⁶ The Applicant’s next-of-kin were also informed by the SPS that he would be executed on 24 May 2019.⁷

Events leading up to the current application

On 21 May 2019, the Applicant filed Criminal Motion No 6 of 2019 (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 as well as the PP’s refusal to issue a CSA.⁸

On 23 May 2019, the Court of Appeal allowed the criminal motion and granted the Applicant a stay of execution for him to file his intended application.⁹

On 24 June 2019, the Applicant filed the present application, Originating Summons No 807 of 2019 (HC/OS 807/2019), as well as a statement and an affidavit under O 53 r 1(2) of the ROC. The next day, on 25 June 2019, the Applicant filed Summons No 3167 of 2019 (SUM 3167/2019) seeking specific discovery and leave to serve interrogatories against the Government of the Republic of Singapore (“the Government”), which was represented by the Attorney-General (“the AG”).

On 19 July 2019, I dismissed SUM 3167/2019. In my written grounds of decision (see Pannir Selvam a/l Pranthaman v Attorney-General [2019] SGHC 217) (“Pannir Selvam GD 1”), I held (at [24]) that s 34(1) of the Government Proceedings Act (Cap 121, 1985 Rev Ed) (“GPA”) precluded me from making an order for discovery against the Government since it was not a party to the proceedings. In any case, the documents and interrogatories sought by the Applicant did not satisfy the essential prerequisites of relevance and necessity (see [81] to [82] of Pannir Selvam GD 1).

Dissatisfied, the Applicant filed Summons No 3764 of 2019 (SUM 3764/2019) seeking leave to appeal against my decision in SUM 3167/2019. This application related only to my dismissal of the application for discovery, as the Applicant was barred under s 34(1) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) from seeking leave to appeal in respect of his application for leave to serve interrogatories. I heard the parties on 19 August 2019 and declined to grant leave to appeal on the basis that the Applicant did not have a real interest in the outcome of the appeal (see Pannir Selvam GD 1 at [93]).

Thereafter, the Applicant filed Originating Summons No 31 of 2019 (CA/OS 31/2019) seeking leave to appeal against my decision in SUM 3764/2019. This application was dismissed by the Court of Appeal on 5 November 2019.¹⁰ Subsequently, the present application was scheduled for hearing before me on 11 and 12 February 2020.

Issues to be determined

As a preliminary issue, I had to determine whether the AG was entitled to file reply affidavits at the leave stage, at which proceedings are generally ex parte pursuant to O 53 r 1(2) of the ROC.¹¹

The substantive issues for my determination pertained essentially to whether the Applicant had established any grounds for leave to commence judicial review proceedings against the PP (“the PP challenge”), the Cabinet (“the Cabinet challenge”), and the SPS (“the SPS challenge”).

I now address the aforementioned issues seriatim.

Preliminary issue: Whether the AG was entitled to file reply affidavits

When the Court of Appeal allowed the Applicant’s application for a stay of execution in CA/CM 6/2019, it directed that the Applicant would have a period of two weeks to file his intended application together with any supporting evidence, and that the Prosecution would have a period of two weeks to respond.¹²

With reference to the Court of Appeal’s directions, the Applicant argued that the AG was not entitled to file affidavits in response to the present application. First, he contended that having regard to O 53 r 1(2) ROC, the putative respondent in a judicial review proceeding would not, in the ordinary course of events, be entitled to file reply affidavits at the ex parte leave stage.¹³ O 53 r 1(2) ROC provides as follows: (2) An application for such leave must be made by ex parte originating summons and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by an affidavit, to be filed when the application is made, verifying the facts relied on.

[emphasis added]

Secondly, the Applicant argued that the Court of Appeal had not actually intended to grant the AG leave to respond to an application brought under O 53 r 1 ROC. According to the Applicant, this was supposedly apparent from the fact that the Court of Appeal had (a) granted leave to the “Prosecution”, rather than the AG, to respond; and (b) (wrongly) directed for the present application to be heard before the Court of Appeal instead of the High Court (although this direction was subsequently corrected to state that the matter would be heard before “the appropriate court”).¹⁴

Thirdly, the Applicant relied on the case of Deepak Sharma v Law Society of Singapore [2017] 2 SLR 672 (“Deepak Sharma”) for the following proposition (at [36]):

… When the AG intervenes in private judicial review proceedings in order to carry out his function as the “guardian of the public interest”, he does so not because he wishes to advance the interests of any of the named parties to the litigation or desires a particular outcome for any of the parties. Rather, he participates purely on a non-partisan basis. …

[emphasis in original]

The Applicant contended that permitting the AG to file reply affidavits in the present application would allow the AG to venture beyond his non-partisan role as the guardian of the public interest.

With respect, the Applicant’s arguments were unmeritorious and contrived. The mere fact that the Court of Appeal had granted leave to the “Prosecution” (instead of the AG) to respond did not indicate that it had specifically intended to preclude the AG from filing a response; at the highest, this was an inadvertent mistaken reference to the identity of the putative respondent. Likewise, no particular conclusions could be drawn from...