Selvi d/o Narayanasamy v Attorney-General

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 01 November 2013
• Neutral Citation: [2013] SGHC 230
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 753 of 2013
• Published date: 13 November 2013
• Year: 2013
• Hearing Date: 16 October 2013
• Plaintiff Counsel: M Ravi (L F Violet Netto) and Eugene Thuraisingam (Eugene Thuraisingam)
• Defendant Counsel: Tai Wei Shyong, Tan Wen Hsien and Elaine Liew (Attorney-General's Chambers)
• Subject Matter: ADMINISTRATIVE LAW,Judicial Review
• Citation: [2013] SGHC 230

Tay Yong Kwang J:

This originating summons concerns an application for leave under O 53 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) to apply for: a mandatory order to compel the Coroner to re-open and continue with the inquiry into the death of Dinesh Raman s/o Chinnaiah (“the Deceased”) who died while in lawful custody; and a declaration that under s 39 of the Coroners Act (Cap 63A, 2012 Rev Ed) (“the Act”), 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.

On 16 Oct 2013, I dismissed the application for leave. On 30 Oct 2013, the applicant filed a notice of appeal against my decision. I now give the reasons for my decision.

The facts

The Deceased was an inmate in Changi Prison Complex (“Changi Prison”). The applicant is the Deceased’s mother. On 27 September 2010 at about 12 noon, the Deceased was conveyed from Changi Prison to Changi General Hospital (“CGH”) in an ambulance. The Deceased was subsequently pronounced dead at about 12.45 pm. At 2.10 pm, a police officer at the CGH police post lodged a first information report about the death.

Associate Professor Gilbert Lau (“Professor Lau”) performed an autopsy on 28 September 2010 at about 10 am. In his autopsy report dated 30 September 2010, Professor Lau stated that the case of death was “cardiorespiratory failure pending further investigations”. In a further report dated 16 November 2010, the cause of death was determined to be “consistent with positional asphyxia”, being an unnatural death.

On 28 September 2010, the State Coroner (“the Coroner”) held a preliminary investigation into the death of the Deceased at the mortuary of the Centre for Forensic Medicine. On 4 November 2012, the Coroner convened the first pre-inquiry review. Subsequently, further pre-inquiry reviews were held.

On 18 March 2013, the Coroner directed the police to prepare a bundle of documents. The bundle of documents, which included the first information report and forensic reports, was tendered to the Coroner and the then counsel for the applicant (as next of kin of the Deceased), Mr Mahendran s/o Mylvaganam (“Mr Mahendran”) on 2 April 2013.

On 8 April 2013, the Coroner gave further directions with regard to the conditioned statements of the witnesses who would be called to testify at the Coroner’s Inquiry. These conditioned statements were tendered to the Coroner and Mr Mahendran on 22 April 2013.

During a pre-inquiry review held on 1 July 2013, the Coroner was informed by State Counsel that a criminal charge would be preferred against prison officer DSP Lim Kwo Yin (“DSP Lim”). The Coroner therefore adjourned the Coroner’s Inquiry (originally fixed for hearing on 25 and 26 July 2013) to 5 and 6 August 2013. A further pre-inquiry review was also scheduled for 23 July 2013.

On 19 July 2013, DSP Lim was charged in the District Court. He pleaded guilty to the following charge:

You, [DSP Lim], are charged that you, on the morning of 27th day of September 2010, at the Disciplinary Housing Unit cell of the Changi Prison Complex, Cluster A, Singapore, being the Officer in Charge of Cluster A4 Housing Unit 2, and the Senior Prison Officer supervising the operation to restrain [the Deceased], did cause the death of [the Deceased] by doing a negligent act not amounting to culpable homicide, to wit, by failing to exercise adequate supervision in the restraint of [the Deceased] and consequently causing his death from Positional Asphyxia, and you have thereby committed an offence punishable under section 304A(b) of the Penal Code, Chapter 224.

DSP Lim, who was represented by counsel, Mr Wendell Wong, admitted the statement of facts and was sentenced to pay a fine of $10,000 (in default, imprisonment for three weeks). He has paid the fine. Neither DSP Lim nor the Public Prosecutor lodged an appeal against the District Court’s decision.

The pertinent portions of the statement of facts are set out below: 1. The accused is one [DSP Lim] male, 36 years old (DOB: 25 January 1977), Singaporean … 2. The deceased is one Dinesh Raman s/o Chinnaiah, Singaporean male, holder of NRIC No. S8931893/I, date of birth 6 September 1989. The deceased had committed offences of rioting and theft with common intention and was sentenced to Reformative Training on 12 December 2007. He was released from Reformative Training on 6 January 2010 and ordered to be placed on supervision with conditions for compliance. On 26 May 2010, the deceased was recalled to Changi Prison Complex because he failed to comply with the conditions of the supervision order. The deceased was due for release on 11 December 2010. 3. On 27 September 2010, at about 12.00pm, the deceased was conveyed by ambulance from Changi Prison Complex and was pronounced dead at about 12.45pm at [CGH]. … 4. Police investigations revealed that the deceased was housed in Cluster A4, Housing Unit 2, Day Room 3, Cell H5-55, located on the 5th floor of the Changi Prison Complex, Cluster A. 5. On 27 September 2010, at about 10.45 a.m., the deceased exited his cell H5-55 and kicked a Prison warder, one Sgt. Lee Fangwei Jonathan, in his abdomen. 6. The deceased was restrained and subsequently brought to the Disciplinary Housing Unit (‘DHU’) cell by Prison warders. At the DHU cell, the accused 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. Thereafter, the deceased was left unattended in the DHU cell, whilst unresponsive, in a prone position. 7. Subsequently, at about 11.18am, the accused re-entered the DHU cell to check on the condition of the deceased. He was found to be unresponsive. Medical personnel were then called in to commence emergency medical aid. The deceased did not respond to the emergency medical treatment and was sent by ambulance to hospital. The deceased was pronounced dead at [CGH]. THE AUTOPSY REPORT 8. Associate Professor Gilbert Lau performed the autopsy on the deceased on 28 September 2010. According to the Autopsy Report AZ1051-05247 by A/Prof Gilbert Lau, dated 30 September 2010 [Tab B], the cause of death was “cardiorespiratory failure pending further investigations”. 9. The Further Report by the said Pathologist dated 16 November 2010 [Tab B1] stated that the cause of death was determined to be “consistent with Positional Asphyxia”.

The said Further Report at [3] stated that: “It is entirely plausible that the deceased, whilst being placed in such a position, could have experienced substantial restriction or curtailment of the respiratory movements of the chest and abdomen, with resultant asphyxiation.”

10. The said Further Report at [9] also stated that:

“In summary, it is likely that the deceased had succumbed to positional asphyxia whilst being physically restrained…”

CONCLUSION

11. The accused has caused the death of the deceased by doing a negligent act not amounting to culpable homicide by failing to exercise adequate supervision in the restraint of the deceased, thereby allowing the deceased to be held in a manner which consequently caused his death from Positional Asphyxia. The accused is charged accordingly for the offence of Causing Death by a Negligent Act under Section 304(A)(b) of the Penal Code, Chapter 224.

[emphasis in original]

At the pre-inquiry review held on 23 July 2013, the Coroner decided not to resume the inquiry into the death of the Deceased. The Coroner’s notes of the aforesaid review (“the notes”) state:

DPP/IO: Lau Wing Yum/Tan Wen Hsien

Counsel (NOK/Int Party): Mahendran

Brief Facts

L: Prison officer has been convicted. Charged under 304A(b) – fined $10000. He saw the restraint by the other officers – caused death by omission. C: What should he have done? L: He should have discovered; should have intervened earlier. M: Thanks for expediting – concern about the civil case – can move on in that direction. L: Has the bundle been received by your court? C: Received Charge and SOF earlier. L: PP is not appealing, C: What about him? L: Unlikely to appeal. C: Explains section 45 of the Coroner’s Act – non admission provision of CI bundle. S39 – no further inquiry in this case in light of the prosecution for the same case.

Certificate B:

Inquiry not resumed under section 39 of the Coroner’s Act 2010. Having regard to the result of the Criminal Proceedings in District Court No 2, Singapore (DAC-027799-2013 Defendant: Lim Kwo Yin (Lin Guyun)). I do not propose under section 39 of the Coroners Act 2010 to resume this inquiry.

The Coroner’s Certificate stated that the cause of death was “consistent with positional asphyxia”. The conditioned statements

On 21 August 2013, the applicant commenced this originating summons. She has also commenced a civil action in the High Court against the government in respect of the death of the Deceased. A very brief Statement pursuant to O 53 r 1(2) of the Rules of Court was filed, stating nothing more than the applicant’s particulars and the two prayers sought (set out at [1] above). The applicant affirmed two affidavits, the first on 20 August 2013 and the second on 17 September 2013.

In her second affidavit, the applicant exhibited the conditioned statements (mentioned at [7] above) which had been given to her then counsel in the course of the Coroner’s Inquiry.

The respondent submitted (as a preliminary issue) that the said conditioned statements were not admissible for the purposes of the proceedings before me. The respondent relied on s 45 of the Act which reads:

Admissibility of evidence in subsequent judicial proceedings 45. No oral testimony or conditioned statement admitted...