Ravi s/o Madasamy v Attorney-General

• Jurisdiction: Singapore
• Judge: Ang Cheng Hock J
• Judgment Date: 13 October 2020
• Neutral Citation: [2020] SGHC 221
• Published date: 20 October 2020
• Docket Number: Originating Summons No 378 of 2020
• Year: 2020
• Hearing Date: 03 August 2020
• Plaintiff Counsel: The plaintiff in person
• Citation: [2020] SGHC 221
• Defendant Counsel: Leong Weng Tat, Charis Low and Cheng Yuxi (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Witnesses,Evidence,Remedies,Leave,Search and seizure,Privilege,Locus standi,Administrative Law,Legal professional privilege,Civil Procedure,Judicial review,Prima facie case of reasonable suspicion,Criminal Procedure and Sentencing,Prohibiting order

Ang Cheng Hock J:

This case involves a situation where an advocate and solicitor’s electronic devices have been seized by the Singapore Police Force (the “Police”) for investigations into offences allegedly committed by the advocate and solicitor, but he claims that the items cannot be reviewed by the Police or the Attorney-General’s Chambers (“AGC”) as they contain communications between him and his clients that are protected by legal professional privilege. The plaintiff, who is the advocate and solicitor in question, applies for leave under O 53 r 1(b) of the Rules of Court (Cap 322, R5, 2014 Rev Ed) (“ROC”) to commence judicial review so that he may be granted a prohibiting order to prohibit the Attorney-General (“AG”) and the Police from reviewing the contents of the electronic devices, until the Court determines the lawfulness, nature and extent of the alleged legal professional privilege (the “prohibiting order”). The defendant, who is the AG, objects to this application.

Background facts

The plaintiff, Mr Ravi S/O Madasamy, is an advocate and solicitor who practises in the firm of Carson Law Chambers (“CLC”). On 10 January 2020, an online post was posted on the Facebook page of “The Online Citizen” (“the TOC Facebook post”). This post contained information about a Criminal Revision filed in the High Court by the plaintiff on behalf of Mohan S/O Rajangam (“Mohan”) pertaining to a Magistrate’s endorsement of a warrant of arrest issued by a Malaysian court against Mohan (“CR 2/2020”). The TOC Facebook post stated that The Online Citizen had seen “a petition filed by M Ravi” – the plaintiff – on the same day the petition was filed. The Police thus suspected that the plaintiff was involved in the publication of the TOC Facebook post (and other online posts also related to CR 2/2020), and that the plaintiff had thereby committed contempt of court under s 3(1)(b) of the Administration of Justice (Protection) Act 2016 (No. 19 of 2016) (“AJPA”).¹

In the course of its investigation of the plaintiff for the alleged commission of the AJPA offences, three Police officers entered CLC’s office on 13 March 2020 and seized, inter alia, the plaintiff’s mobile phone and firm issued laptop (the “seized items”). The plaintiff alleges that he informed the Police officers then that the contents of the seized items were confidential and protected by legal professional privilege, and that it would be a breach of s 128 of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”) if the Police officers were to intrude into this information.² This is denied by the AG (see [4(d)] below).

Subsequently, from 15 to 26 March 2020, the plaintiff exchanged several letters with the Police and the AGC regarding the seized items.³ On 15 March 2020, the plaintiff emailed Assistant Superintendent Ng Jun Wen (“ASP Ng”), the investigation officer for the case, to state that he “would like to reserve all [his] clients’ rights in connection with the seizing of the phone and laptop including that of Mr. Mohan (under investigation) who is considering other legal options in relation to the miscarriage of justice he has suffered on those matters he had raised in his Criminal [sic] which is being currently withdrawn”. On 19 March 2020, the plaintiff wrote to the Police, addressing ASP Ng, to state that the Police was not to open the contents of the seized items until a ruling is made by the court, as the said contents are protected by legal professional privilege. The plaintiff also stated that he had “already placed [ASP Ng] on notice on [sic] this matter on 15 March 2020.” On 20 March 2020, the AGC replied to the plaintiff stating that they “do not agree that on 15 March 2020, [the plaintiff] gave the [Police] notice” that the seized items contained privileged information, but “the [Police] has, with immediate effect, paused investigative work into the contents of the [seized items]”. The AGC also stated that the contents of the mobile phone will be reviewed by a team of officers from the AGC “who are not, and will not be, involved in the ongoing investigations” of the plaintiff for offences under the AJPA. The AGC also wanted the plaintiff to inform them in writing of the issues or grounds of objections the plaintiff wished to raise and the file name(s) or folder(s) within the seized items that are allegedly privileged (the “Requested Information”). The plaintiff replied to the AGC on the same day to assert that he had informed the Police on 13 March 2020 that the seizure of his phone and the laptop was an “interference” into his client’s legal professional privilege. He did not identify the file name(s) or folder(s) in the seized items which contained the allegedly privileged material as requested by the AGC.⁴ On 23 March 2020, the AGC replied to the plaintiff to state that it is “inaccurate” for the plaintiff to state that he had informed the Police officers on 13 March 2020 that the contents of the seized items were confidential and privileged. The AGC also noted the plaintiff’s “refusal to particularise” the material that he claimed is privileged. The plaintiff replied on the same day by stating that he is “under no obligation to make the disclosure” which the AGC was “demanding [him] to make”. On 26 March 2020, the AGC stated that they noted the plaintiff’s continued refusal to particularise the material that he claims is privileged, and that the team of aforementioned AGC officers will commence work on the review of the contents of the seized items on 3 April 2020.

On 2 April 2020, the plaintiff filed the present originating summons (“OS 378/2020”) to seek leave to commence judicial review, as stated at [1] above. The plaintiff and the AGC then exchanged further letters.⁵ On 3 April 2020, the AGC wrote to the plaintiff to inform him that its officers would not be commencing review of the seized items, if he provides the Requested Information and if he agrees to an early hearing date of OS 378/2020. The AGC also asked the plaintiff to let them know immediately should he wish to access the seized items. On 9 April 2020, the plaintiff wrote to the AGC reiterating that the AGC’s request for the Requested Information “is in breach” of s 128 of the EA.

The parties’ submissions

The plaintiff submits that the contents of the seized items are protected by legal professional privilege under s 128 of the EA. While s 128(2)(a) of the EA provides that “communication made in furtherance of any illegal purpose” is not protected under s 128, the plaintiff submits that the s 128(2)(a) exception does not apply to his case because the present offence that he is being investigated by the Police for – s 3(1)(b) of the AJPA – is only “quasi-criminal”, rather than criminal, in nature.

The AG submits that s 128 of the EA does not apply because s 128 does not affect the Police’s powers under s 35 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to seize an item. Instead, the common law applies. Under the common law, the Police is not bound to accept an assertion of privilege at face value, and the Police may examine the seized items to some extent to test the assertion of privilege. The AG also proposes a framework by which the contents of the seized items would be reviewed by a team of officers from the AGC who are not involved in the ongoing investigations. In his oral submissions, state counsel who appeared for the AG further submitted that the plaintiff is not the right party to bring this present OS, as the privilege in relation to the contents of the seized items belongs to the plaintiff’s clients. Thus, it is for the plaintiff’s clients to file this OS to seek to protect their privileged communications and other materials, if they wished to assert their privilege.

Legal requirements of O 53 r 1(b)

It is well-established law that three requirements must be satisfied before leave can be granted to commence judicial review under O 53 r 1(b) of the ROC. First, the applicant must have standing. Second, the decision that the applicant is challenging must be susceptible to judicial review. Third, there must be a prima facie case of reasonable suspicion that the applicant will succeed on the main application. As the application for leave is meant to be a means of filtering out groundless or hopeless cases at an early stage, the court only needs to read the material quickly and appraise whether it discloses an arguable and prima facie case of reasonable suspicion. The court does not need to, and should not, embark on a detailed analysis of the materials put forward by the applicant: Re Nalpon, Zero Geraldo Mario [2018] 2 SLR 1378 at [19]–[20]. It is apparent from the case law that these three requirements need not be considered in any particular order: see, eg, Jeyaretnam Kenneth Andrew v Attorney-General [2014] 1 SLR 345 (“Jeyaretnam”), where the Court of Appeal first analysed if there was a prima facie case of reasonable suspicion in favour of granting the prerogative orders sought by the appellant before analysing if the appellant had standing. This may be necessary as issues of standing and the merits of the application are often intertwined.

Issues to be determined

The seized items are now in the custody of the AGC. The plaintiff is asking the court to prohibit the AGC (and the Police) from reviewing the seized items before the Court determines if they are privileged. To my mind, it is clear that the actions of the Police and the AGC are susceptible to judicial review. This is because the source of the AG’s and the Police’s powers to review the seized items is public law, as these powers are based on statute: Manjit Singh s/o Kirpal Singh and another v Attorney-General [2013] 2 SLR 1108 at [84]. The power to seize and review the seized items is derived from s 35 of the CPC, while the AG’s power to review the seized items to control and direct the criminal prosecution is derived from s 11(1) of the...