Syed Suhail bin Syed Zin v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JCA,Judith Prakash JCA,Sundaresh Menon CJ
• Judgment Date: 14 May 2021
• Neutral Citation: [2021] SGCA 53
• Published date: 19 May 2021
• Year: 2021
• Hearing Date: 13 April 2021
• Plaintiff Counsel: Ravi s/o Madasamy (Carson Law Chambers)
• Citation: [2021] SGCA 53
• Defendant Counsel: Francis Ng Yong Kiat SC, Wuan Kin Lek Nicholas and Chin Jincheng (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Motion No 28 of 2020

Andrew Phang Boon Leong JCA (delivering the judgment of the court):

CA/CM 28/2020 (“CM 28”) was an application by the applicant, Syed Suhail bin Syed Zin, to this court for it to review its earlier decision in CA/CCA 38/2015 (“CCA 38”), in which this court had dismissed the applicant’s appeal against his conviction under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) and the mandatory death penalty that was imposed. After hearing parties, we dismissed CM 28 on 16 October 2020 in a written judgment reported as Syed Suhail bin Syed Zin v Public Prosecutor [2021] 1 SLR 159 (“the Judgment”). After the dismissal of CM 28, the Prosecution wrote to court on 17 October 2020 indicating its intention to seek a personal costs order against the applicant’s counsel, Mr Ravi s/o Madasamy (“Mr Ravi”). We invited Mr Ravi to respond to the Prosecution’s submissions. Having considered parties’ written submissions, we find that this is an appropriate case in which to make a personal costs order against Mr Ravi.

Background

We begin with a summary of the background facts, which are set out in greater detail in the Judgment at [4]–[10]. The applicant had been found in possession of not less than 38.84g of diamorphine. Despite his initial account in his statements, the applicant’s defence at trial was that all of the drugs found in his possession were for his personal consumption. His defence therefore focused on his consumption habits, his financial means, and attempts to explain his inconsistent statements (see the Judgment at [6]).

The trial judge (“Trial Judge”) rejected the applicant’s contentions on his financial means. In the circumstances, he found that the applicant had failed to prove on a balance of probabilities that the drugs were for his personal consumption, and hence failed to rebut the presumption of trafficking under s 17 of the MDA. In terms of sentencing, the Trial Judge held that the applicant was not a mere courier and that s 33B(3)(b) of the MDA did not apply as the applicant had not claimed that he was suffering from the requisite abnormality of mind. In addition, no certificate of substantive assistance was issued. Hence, the Trial Judge imposed the mandatory death penalty (see the Judgment at [7]–[8]). On 18 October 2018, in CCA 38, this court affirmed the Trial Judge’s decision (see the Judgment at [9]).

CM 28

On 17 September 2020, the applicant applied for leave in CA/CM 27/2020 (“CM 27”) under s 394H of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to make a review application. He raised two grounds, which we quote from the Judgment at [11]:

… (a) that the issue of whether he had suffered from an abnormality of mind under s 33B(3)(b) of the MDA had not been sufficiently canvassed at the trial or appeal stages (‘the Abnormality of Mind Ground’); and (b) that his trial counsel did not make the necessary inquiries to adduce evidence in relation to his uncle, in particular, on the alleged $20,000 advance which would have shown that he had the financial means to sustain his alleged level of consumption (‘the Inheritance Ground’). …

Leave to commence the review application was granted on 19 September 2020. CM 28, the review application, was filed on 21 September 2020 and was heard on 22 September 2020. We summarise the key aspects of the hearing before us as follows: Mr Ravi argued first that Mr Francis Ng SC (“Mr Ng”) and his team should be disqualified from representing the Prosecution because the Prosecution had come into contact with a letter from the applicant to Mr Ramesh Tiwary (“Mr Tiwary”) (his then-counsel) and four letters from the applicant to his uncle (“the Disqualification Application”). We declined to disqualify Mr Ng and his team from representing the Prosecution, finding that “Mr Ravi had failed to show the court any basis” for his application especially given that neither Mr Ng nor any member of his team in this matter had sight of any such letters (see the Judgment at [12]). Mr Ravi confirmed that he would not be relying on the Inheritance Ground, acknowledging that “he had no real basis to advance this ground” (see the Judgment at [13]). We observed that if that was the case, then the point should not have been advanced at all, and that “as officers of the court, counsel are bound not to advance grounds that are without reasonable basis, for if they do, they face the prospect of being sanctioned for abusing the process of the court” (see the Judgment at [13]). In relation to the Abnormality of Mind Ground, after we pointed out that the applicant’s involvement needed to be restricted to being a courier in order to qualify for the alternative sentencing regime, Mr Ravi sought permission to address the court on this issue, which we granted. Mr Ravi filed further submissions on 25 September 2020 accordingly to raise his argument on the point (“the Courier Argument”), which necessitated a written response from the Prosecution.

Having considered the arguments, we held that there was no merit to CM 28 and dismissed the application. As our findings on the arguments have a significant bearing on whether a personal costs order is appropriate, we summarise them briefly here.

In relation to the Abnormality of Mind Ground and the Courier Argument, we found that all of these were materials that could have been adduced previously with reasonable diligence (see s 394J(3)(b) of the CPC) as ample opportunity had been afforded to the applicant to introduce materials relating to the alternative sentencing regime (see the Judgment at [23]–[24]). Further, there was no change in the law since the prior criminal proceedings which would give rise to new legal arguments (see the Judgment at [25] and [28]). We also found that these materials were not compelling, as defined by s 394J(3)(c) of the CPC. First, the applicant’s involvement had to be restricted to being a courier to qualify for the alternative sentencing regime, but the Courier Argument could not be sustained given the language of the provision and the Trial Judge’s finding of fact (which was not reversed on appeal) that the applicant was not a mere courier and intended to repack the drugs for sale to third parties. Further, his argument that he was merely a courier would have been inconsistent with the defence of personal consumption he ran at trial. The applicant had also confirmed in the prior proceedings that he was not pursuing that argument. There was no evidence at trial, and no new evidence was adduced, to support any argument that the applicant was a mere courier (see the Judgment at [32]). Second, the evidence at trial suggested that the applicant was not in fact suffering from such abnormality of mind that would have substantially impaired his mental responsibility for the offence (see the Judgment at [33]). Hence, we found at [37] of the Judgment that “the Abnormality of Mind Ground and the Courier Argument [did] not come close to fulfilling the requirement of compellability under s 394J(3)(c) of the CPC” [emphasis added].

We also dealt briefly with the Inheritance Ground, finding that it was a “non-starter as it [was] neither a legal argument nor evidence that [fell] within the ambit of s 394J(2) of the CPC” [emphasis added]. Ample opportunity had been given to the applicant to pursue this route of inquiry and to adduce further evidence on appeal, but the applicant had chosen not to take the opportunity (see the Judgment at [39]). Again, we cautioned counsel “against raising points or arguments that they do not have a reasonable basis to submit upon as to do so would be an abuse of the process of court” (see the Judgment at [40]).

Subsequent to the release of the Judgment, on 17 October 2020, the Prosecution wrote to court stating its intention to seek a personal costs order against Mr Ravi. On 22 October 2020, we issued timelines for submissions to be filed to deal with that issue. At Mr Ravi’s request, determination of the issue of costs was deferred pending disposal of another application in which the applicant was involved, HC/OS 975/2020 (“OS 975”). We observe here that Mr Ravi again made reference to OS 975 in his arguments on costs, and we deal with the relevance of the allegations therein below. OS 975 was disposed of by the General Division of the High Court on 16 March 2021 and, on 29 March 2021, the Prosecution sought directions for Mr Ravi to file reply submissions. Directions were issued and Mr Ravi filed his reply submissions on 13 April 2021.

Parties’ arguments on the issue of costs The Prosecution’s arguments

The Prosecution sought a personal costs order of $10,000 against Mr Ravi, on the basis that his conduct in acting for the applicant in CM 28 was “plainly unreasonable and improper”. In this regard, the Prosecution emphasised the duty of defence counsel under Division 1B of Part XX of the CPC, especially in the light of the requirement that counsel must file an affidavit if the applicant is represented. Given this requirement, defence counsel are under particular obligations to review the record of proceedings and evidence, to make “full and frank disclosure”, and to give counsel an opportunity to respond if negative imputations are made on the conduct of previous counsel (in accordance with r 29 of the Legal Profession (Professional Conduct) Rules 2015 (S 706/2015) (“PCR”) and the decision of this court in Mohammad Farid bin Batra v Public Prosecutor and another appeal and other matters [2020] 1 SLR 907 (“Farid”) at [137]). In the light of these obligations, Mr Ravi’s conduct fell far short of the standards expected.

The Prosecution made three arguments in particular. First, Mr Ravi had misrepresented or materially omitted facts concerning what had taken place in prior proceedings in his affidavit and raised legally unsustainable arguments. Second, Mr Ravi had made unjustified allegations against the applicant’s previous...