Selvi d/o Narayanasamy v AG
| Judgment Date | 01 November 2013 |
| Date | 01 November 2013 |
| Docket Number | Originating Summons No 753 of 2013 |
| Court | High Court (Singapore) |
Tay Yong Kwang J
Originating Summons No 753 of 2013
High Court
Administrative Law—Judicial review—Application for leave—Deceased dying while in official custody—Coroner discontinuing inquiry having regard to result of criminal proceedings where prison officer pleaded guilty to causing death by negligence—Applicant applying for leave to judicially review Coroner's decision to discontinue on grounds of illegality and/or Wednesbury unreasonableness—Whether s 39 Coroners Act (Cap 63 A, 2012 Rev Ed) distinguished between full trials and plead guilty situations—Whether Coroner had power to discontinue inquiry under s 39 Coroners Act—Whether Coroner had acted unreasonably in deciding not to resume enquiry by not asking further questions and by purportedly not reading charge and statement of facts—Section 39 Coroners Act (Cap 63 A, 2012 Rev Ed)
The applicant is the mother of an inmate who died on 27 September 2010 while in lawful custody (‘the deceased’) in Changi Prison Complex.
An autopsy was performed on the deceased one day after his demise. The first report stated that the cause of death was ‘cardiorespiratory failure pending further investigations’. In a subsequent report, the cause of death was determined to be ‘consistent with positional asphyxia’, which is an unnatural death.
The State Coroner (‘the Coroner’) started a preliminary investigation into the death of the deceased on 28 September 2010. On 18 March 2013, the Coroner directed the police to prepare a bundle of documents. These documents included the first information report and forensic reports. On 8 April 2013, the Coroner gave further instructions with regard to the conditioned statements of the witnesses who would be called to testify at the Coroner's Inquiry. All of the aforementioned documents were tendered to both the Coroner and the then counsel for the applicant.
During a pre-inquiry review held on 1 July 2013, State Counsel informed the Coroner that a criminal charge would be preferred against a prison officer named Deputy Superintendent Lim Kwo Yin (‘DSP Lim’). The Coroner's Inquiry, which was originally fixed for hearing on 25 and 26 July 2013, was therefore adjourned to 5 and 6 August 2013.
On 19 July 2013, DSP Lim was charged in the District Court. He pleaded guilty to a charge of causing the death of the deceased by doing a negligent act not amounting to culpable homicide, namely by failing to exercise adequate supervision in the restraint of the deceased and consequently causing his death from positional asphyxia, an offence punishable under s 304 A (b) of the Penal Code (Cap 224, 2008 Rev Ed). DSP Lim, who was represented, admitted to the statement of facts and was sentenced to pay a fine of $10,000 (three weeks' imprisonment in default). DSP Lim has paid the fine. Neither DSP Lim nor the Public Prosecutor has lodged an appeal against the District Court's decision. The statement of facts stated, inter alia,that DSP Lim had failed to adequately supervise the restraint operation that placed the deceased in a prone position on the ground and restricted the respiratory movements of his chest and abdomen and had thereby caused the death of the deceased by doing a negligent act not amounting to culpable homicide.
At a pre-inquiry review on 23 July 2013, the Coroner, ‘having regard to the result’ of criminal proceedings against DSP Lim, decided not to resume the inquiry into the death of the deceased.
The applicant thereafter applied for leave under O 53 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) for a mandatory order to compel the Coroner to re-open and continue with the inquiry into the death of the deceased, and a declaration that under s 39 of the Coroners Act (Cap 63 A, 2012 Rev Ed), the Coroner has to continue with an inquiry unless a finding has been made by a trial judge as to the cause of death and the circumstances connected with the death of a deceased who died in lawful custody.
Held, dismissing the application:
(1) The conditioned statements, tendered in the course of the Coroner's Inquiry, were not admissible for the purposes of the proceedings before the court due to the operation of s 45 of the Coroners Act (Cap 63 A, 2012 Rev Ed) (‘the Act’). The purpose of s 45 was to encourage the disclosure of evidence by witnesses to the fullest extent possible. Inquiries were also inquisitorial in nature, with the Coroner not being permitted to determine any question of criminal, civil or disciplinary liability (as per s 27 (2) of the Act): at [16] and [18] .
(2) There was no dispute that the Coroner's decision to discontinue the inquiry was subject to judicial review. A Ministerial statement had declared that the Coroner's findings were not subject to appeal or criminal revision ‘but a person with sufficient standing, such as an immediate family member, may apply for judicial [re] view’: at [20] .
(3) Section 25 of the Act specified the circumstances under which an inquiry had to be held. There were two categories of cases. The first related to ‘mandatory inquiry situations’ in s 25 (1) and the second concerned ‘discretionary inquiry’ cases in s 25 (2). Section 25 (3), which set out the matters which the Coroner might have regard to in deciding whether to hold an inquiry, applied only to the ‘discretionary inquiry’ cases. The present case concerned a person who died in official custody and an inquiry was therefore mandatory: at [25] and [26] .
(4) When both criminal proceedings and a Coroner's Inquiry relating to the same death were underway, s 39 of the Act became relevant. Section 39 did not distinguish between full trials and plead guilty situations. Section 39 (1) made it clear that, upon a person being charged, an inquiry ought to be adjourned until after the conclusion of the criminal proceedings. It was impossible to predict whether an accused, after having been charged, would decide to plead guilty or claim trial or even to change his position during the course of the trial. The phrase ‘conclusion of the criminal proceedings’ had to, as a matter of logic, encompass a situation where the accused decided to plead guilty. It would be illogical for an accused's subsequent decision to plead guilty to have the retrospective effect of taking the situation out of the ambit of s 39 of the Act: at [26] and [32] .
(5) If criminal proceedings had ascertained the cause of and circumstances connected with the death, in particular, the identity of the deceased and how, when and where the deceased came by his death (as per s 27 (1) of the Act), then the resumed inquiry could only re-affirm these findings of the criminal proceedings: at [33] .
(6) The statement of facts in the criminal proceedings contained ample details about the identity of the Deceased and how, when and where he came by his death. There was no need for the Coroner to ask any questions about how the restraint by the other officers caused the death of the Deceased or any other question: at [43] .
(7) The applicant's submission that the Coroner had not read the charge and the statement of facts when he made his decision not to resume the inquiry was an unkind speculation. The use of the words ‘having regard to the result of the criminal proceedings’ would indicate that the Coroner had in mind s 39 (3) of the Act (which contained these words) and therefore the finding in the criminal proceedings as to the cause of and circumstances connected with the death as spelt out in the statement of facts and admitted by DSP Lim: at [44] .
(8) The applicant was in effect demanding that every circumstance be looked into. However, the four matters - identity, how, when and where - have been answered by the criminal proceedings. The applicant was not entitled to take out judicial review proceedings to compel an inquiry to be conducted for the purpose of wanting to know everything that happened in the prison (or perhaps even in the ambulance, the hospital and the mortuary). The ‘circumstances connected with the death’ had to ultimately relate to the four matters in s 27 (1) of the Act and ‘how, when and where’ indicated that the circumstances had to be relevant and proximate in time and place: at [45] .
(9) The existence of a related civil action was irrelevant to the issues raised in this application for judicial review. If the Coroner had acted unlawfully or irrationally in not resuming the inquiry, the fact that there was a pending civil action concerning the same incident would be no answer to an application for judicial review. However, there was absolutely no evidence that the Coroner acted illegally, improperly or irrationally when he invoked s 39 of the Act and decided not to resume the inquiry: at [46] .
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (folld)
Biplob Hossain Younus Akan v PP [2011] 3 SLR 217 (refd)
Jeyaretnam Kenneth Andrew v AG [2013] 1 SLR 619 (folld)
Manjit Singh s/o Kirpal Singh v AG [2013] 2 SLR 1108 (folld)
Banking Act (Cap 19, 2008 Rev Ed) s 72
Chit Funds Act (Cap 39, 1985 Rev Ed) s 57
Coroners Act (Cap 63 A, 2012 Rev Ed) ss 25, 27, 39, 45 (consd) ;ss 25 (1) , 25 (2) , 25 (3) , 27 (1) , 27 (2) , 39 (1) , 39 (2) , 39 (3) , 39 (5) (b) , 50 (2)
Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 230, 230 (1) (a) , 230 (1) (b)
Penal Code (Cap 224, 2008 Rev Ed) s 3, Ch XVI
Rules of Court (Cap 322, R 5, 2006 Rev Ed) O 53 r 1, O 53 r 1 (2)
Societies Act (Cap 311, 1985 Rev Ed) s 31
Tobacco (Control of Advertisements and Sale) Act (Cap 309, 2011 Rev Ed) s 33
M Ravi (L F Violet Netto) and Eugene Thuraisingam (Eugene Thuraisingam) for theapplicant
Tai Wei Shyong, Tan Wen Hsien and Elaine Liew (Attorney-General's Chambers) for the respondent.
1 This originating summons concerns an application for leave under O 53 r 1 of the Rules of Court (Cap 322, R 5, 2006...
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