Roslan bin Bakar and others v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Judith Prakash JCA
• Judgment Date: 27 July 2022
• Neutral Citation: [2022] SGCA 57
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 6 of 2022 and Civil Appeal No 6 of 2022
• Published date: 30 July 2022
• Year: 2022
• Hearing Date: 29 March 2022,27 June 2022
• Plaintiff Counsel: Charles Yeo Yao Hui in person
• Defendant Counsel: Francis Ng Yong Kiat SC, Adrian Loo Yu Hao, Samuel Yap Zong En, Chan Yi Cheng and Shenna Tjoa Kai-En (Attorney-General's Chambers)
• Subject Matter: Criminal Procedure and Sentencing,Compensation and costs,Civil Procedure,Costs
• Citation: [2022] SGCA 57

Judith Prakash JCA (delivering the judgment of the court): Introduction

This judgment is given in relation to the costs incurred in respect of the application filed as CA/CM 6/2022 (“CM 6”) and the appeal filed as CA/CA 6/2022 (“CA 6”).

CM 6 was a criminal motion filed under s 394H of the Criminal Procedure Code 2010 (2020 Rev Ed) (“the CPC”). CM 6 was filed on 14 February 2022. It was heard and dismissed by this Court on 15 February 2022. That very evening, the firm of L F Violet Netto (“LFVN”) filed HC/OS 139/2022 (“OS 139”) on behalf of the first and second applicants in CM 6. OS 139 was an application for leave to commence judicial review proceedings. It was heard before a judge of the General Division of the High Court (“the Judge”) on the morning of 16 February 2022. Dissatisfied with the Judge’s dismissal of OS 139, the appellants immediately filed CA 6 which this Court then heard.

CM 6 was brought by three persons, namely, Roslan bin Bakar (“the first applicant”), Pausi bin Jefridin (“the second applicant”) and Lawyers for Liberty (“LFL”), the third applicant. They sought leave to file an application asking this Court to review its earlier decisions in CA/CCA 59/2017 (“CCA 59”) and CA/CCA 26/2018 (“CCA 26”) which were given in relation to the criminal cases against, respectively, the first and second applicants. The Public Prosecutor was the respondent in CM 6.

At the hearing on 15 February 2022 (“the CM 6 hearing), all the applicants were represented by the same counsel, Mr Charles Yeo Yao Hui (“Mr Yeo”). Mr Yeo was then, as he informed us, a salaried partner of the firm of LFVN, the solicitors for the applicants, having just been admitted as such. Mr Yeo had also filed an affidavit in support of the application. It should be noted that Ms L F Violet Netto (“Ms Netto”) was the sole proprietor of LFVN.

CM 6 was the first step in an attempt to set aside the death sentences that had been passed on the first and second applicants after their respective convictions for drug trafficking. As mentioned, we dismissed the application. In respect of the first and second applicants, we were of the view that they were not able to meet the threshold requirements for a review set down by s 394H of the CPC and had no material with which to do so. In respect of LFL, our judgment was that it had no standing to be a party to CM 6 and we therefore dismissed the application in respect of LFL as a preliminary matter. Our full grounds of decision can be found in Roslan bin Bakar & anor v Public Prosecutor [2022] SGCA 18 (“the CM 6 Judgment”).

OS 139 and CA 6 constituted the second step in the first and second applicants’ attempts to set aside the death sentences passed upon them. The Attorney-General, the respondent in the proceedings, opposed both the application and the appeal. Mr Yeo had filed an affidavit in support of OS 139 and represented the applicants at the hearing on 16 February 2022 (“the OS 139 hearing”). He also acted for them in respect of CA 6, their appeal against the decision in OS 139. CA 6 was dismissed because there was no merit in the arguments raised in support of the appeal before us or in the originating application before the Judge. Our full grounds for that decision can be found in Roslan bin Bakar and another v Attorney-General [2022] SGCA 20 (“the CA 6 Judgment”).

The respondents in both CM 6 and CA 6 applied thereafter for orders for costs to be made in their favour against LFL and against Mr Yeo personally. The court accordingly gave directions for the filing of submissions on costs. All correspondence from the court was addressed to LFVN on behalf of Mr Yeo and LFL. The respondents’ written submissions were duly filed on 1 March 2022. On 29 March 2022, Mr Yeo filed his written submissions. LFL was not mentioned in his written submissions. On 28 April 2022, Mr Yeo informed the court that LFL “will not be making any submissions in reply to the [Public Prosecutor’s] requests for costs orders to be made against [it]”. Up to that date, neither LFVN nor LFL had informed the court of any change to LFL’s legal representation. Mr Yeo’s letter did not contain any statement on the point either. LFVN thus remained LFL’s solicitors on record.

The hearing in respect of costs was fixed for the morning of 11 May 2022. Just two days before the hearing, on 9 May 2022, by a letter of that date, LFL sought a postponement of that hearing so that it might file written submissions. LFL expressed its dissatisfaction that neither the court nor the Attorney-General’s Chambers had communicated with LFL directly and asserted that the court “wrongly assumed that [Ms Netto] continues to act for [it]”. The letter was signed by LFL’s director, Mr Zaid Malek.

On 10 May 2022, we informed parties that the hearing would be adjourned to a later date despite LFL’s baseless complaint. We directed that LFL, if it wished to make submissions in respect of costs, ought to be represented by a Singapore solicitor or a representative holding a duly executed letter of authority from LFL. We also directed that its written submissions were to be filed and served by 17 June 2022. On 30 May 2022, LFL indicated, by way of letter signed by Mr Zaid Malek, that it would be represented by its “Advisor”, Mr N Surendran a/l K Nagarajan (“Mr Surendran”).

LFL failed to file and serve its written submissions on costs via eLitigation on 17 June 2022. As it was not represented by counsel, it was incumbent upon LFL to file through the LawNet & CrimsonLogic Service Bureau. On 21 June 2022, LFL requested that it be allowed to rely upon its submissions sent by e-mail. Effectively, LFL requested that the requirement to file and serve via eLitigation be dispensed with. LFL explained that as a non-profit organisation incorporated in Malaysia, it did not have the financial or logistical resources to send its representative to Singapore for the purpose of filing the submissions. On 23 June 2022, the AGC informed us that it did not object to LFL’s requests. On 24 June 2022, we acceded to LFL’s requests and accordingly accepted the filing of LFL’s submissions and accompanying bundle of authorities notwithstanding the failure to follow the correct filing procedure.

We heard the applications in relation to costs on 27 June 2022. Mr Yeo appeared in person. LFL appeared by video link by its representative, Mr N Surendran.

Should LFL be ordered to pay costs Preliminary issue

A preliminary procedural issue which arose for determination before us was whether a foreign body corporate such as LFL may appear in person in respect of costs sought against it. The oddity in the present case is that LFL should not have been party to CM 6 to begin with (see the CM 6 Judgment at [12]). Unsurprisingly, there is no provision in the CPC that addresses this particular procedural issue because it, understandably, would not have been in the Legislature’s mind to have included a provision on the representation of a foreign body corporate who was not charged with any offence. Section 6 of the CPC, however, deals with situations in which no specific procedure has been laid down. It states:

Where no procedure is provided

6. As regards matters of criminal procedure for which no special provision has been made by this Code or by any other law for the time being in force, such procedure as the justice of the case may require, and which is not inconsistent with this Code or such other law, may be adopted.

The CPC does set out the relevant procedural rules in relation to the representation of a body corporate that is charged with an offence under s 117:

Proceedings against body corporate, limited liability partnership, etc.

117.—(1) If a body corporate … is charged with an offence, either alone or jointly with some other person, a representative may appear for the body corporate ... (2) The representative may do anything on behalf of the body corporate … that an accused may do on the accused’s own behalf under this Code.

…

(5) In this section, “representative”, in relation to a body corporate … means a person duly appointed by the body corporate … to represent it at the court proceedings. (6) A representative for the purposes of this section may be appointed by a written statement which is to be signed — (a) in the case of a body corporate … by a director, manager or secretary or other similar officer of the body corporate … ;

…

and such written statement is, for the purposes of this section, admissible without further proof as prima facie evidence that the person has been duly appointed as representative.

Although s 117 of the CPC is clearly inapplicable to the present case because LFL has not been charged with an offence, it provides some guidance on the issue of the representation of a body corporate in criminal proceedings. In our view, it could not be contrary to the CPC to allow LFL’s representative to appear on its behalf in this hearing for costs, provided that it gave a written statement signed by its director appointing such representative, if LFL was unable to be represented by counsel. We accordingly informed LFL that it had to be represented by a Singapore solicitor or a representative holding a duly executed letter of authority. On 30 May 2022, LFL duly indicated that Mr N Surendran would be its representative for this costs hearing.

The applicable legal principles

We turn to deal with the respondent’s application for costs against LFL. This application is based on s 409 of the CPC which reads:

Costs

409. If the relevant court dismisses a criminal motion and is of the opinion that the motion was frivolous or vexatious or otherwise an abuse of the process of the relevant court, it may either on the application of the respondent or on its own motion, order the applicant of the criminal motion to pay to the respondent costs on an...