Syed Suhail bin Syed Zin v AG

• Jurisdiction: Singapore
• Judge: See Kee Oon J
• Judgment Date: 08 February 2021
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 891 of 2020 (Summons No 4887 of 2020)

Syed Suhail bin Syed Zin

and

Attorney-General

[2021] SGHC 31

See Kee Oon J

Originating Summons No 891 of 2020 (Summons No 4887 of 2020)

General Division of the High Court

Constitutional Law — Equal protection of the law —Applicant seeking prohibiting order to stay execution —Whether applicant subject to impermissible differential treatment in scheduling of his execution —Whether applicant discriminated against as Singaporean vis-à-vis non-Singaporeans in scheduling of his execution —Articles 12(1) and 12(2) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Held, dismissing the application:

(1) The question that arose in relation to the alleged breach of Art 12(1) was whether, in the scheduling of the date of the applicant's execution, the State had differentially treated him in a manner which was impermissible, having regard to the cases of Datchinamurthy and Masoud. The first and main enquiry was whether the applicant, Datchinamurthy and Masoud were equally situated persons, and whether they were differentially treated. If so, the court had to then carefully scrutinise whether this differential treatment was based on legitimate reasons: at [33].

(2) The sequence of execution argument did not assist the applicant, as there was a clear differentiating factor between his case and the cases of Datchinamurthy and Masoud. At the point when the execution of the applicant's sentence was scheduled, the Attorney-General's Chambers (“AGC”) had notified the Ministry of Home Affairs (“MHA”) that it would be reviewing Datchinamurthy and Masoud's cases following the Court of Appeal's determination of CA/CM 3/2020 (Gobi a/l Avedian v PP[2021] 1 SLR 180 (“Gobi (CM)”)). The sentences of Datchinamurthy and Masoud were accordingly not scheduled to be carried out. As a consequence, Datchinamurthy and Masoud had a realistic expectation that their cases would be reviewed and potentially reopened on the merits, but the applicant did not have any such expectation: at [34] and [35].

(3) Specifically, the interplay between the presumption under s 18(2) of the MDA and the doctrine of wilful blindness had arisen for consideration in Gobi (CM). The AGC's review of Datchinamurthy and Masoud's cases was in turn premised on the fact that in those cases, the Prosecution's case encompassed wilful blindness to the nature of the drugs, alongside the courts' resultant findings of failure to rebut the presumption of knowledge of the nature of drugs in s 18(2) of the MDA. From a perusal of the record in Syed Suhail (HC), it was manifestly clear that no question of wilful blindness surfaced whether at the applicant's trial or on appeal. The applicant therefore did not have any similar potential further recourse at the point of the scheduling of his execution. There was thus a clear and indisputable differentiating factor between the applicant and Datchinamurthy and Masoud, such that he was not equally situated together with them: at [36], [37], [41] and [43].

(4) The sequence of execution argument failed in limine as there was no merit in the applicant's argument that his rights under Art 12(1) had been violated by virtue of him being treated differently from Datchinamurthy and Masoud. In any event, sufficient explanation had been furnished by the MHA to establish that any perceived differential treatment affecting the applicant was based on legitimate reasons: at [44].

(5) In respect of the nationality argument, the applicant bore the evidential burden of showing that he was equally situated with another person, such that any differential treatment between them required justification. This had to be satisfied before the evidential burden would shift to the State to justify the differential treatment. As the applicant's challenge was narrow and fact-specific, he could have discharged his evidential burden if he had adduced evidence to show that there was an equally situated non-Singaporean who had been sentenced earlier and whose execution had not been scheduled at the point when his date of execution was fixed. However, the applicant did not adduce any evidence at all to show such a prima facie breach of his right to equal protection under Art 12(1). The applicant had only identified one non-Singaporean, Datchinamurthy, whose clemency petition had been rejected and whose execution had not been scheduled at the point of time when the applicant's date of execution was fixed. This did not assist him as Datchinamurthy was not equally situated with the applicant. The applicant had therefore not cleared the threshold required to discharge his evidential burden for the State to be called upon to justify any differential treatment: at [53] to [59].

(6) Article 12(2) was wholly inapplicable to the nationality argument. Given that Art 12(2) applied only to “citizens of Singapore”, ie, Singaporeans, the reference to “place of birth” in Art 12(2) could not possibly be interpreted to mean “nationality”. The Cabinet's exercise of discretion would also not fall into any of the stipulated categories to which Art 12(2) applied, viz, “in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing of carrying on of any trade, business, profession, vocation or employment”: at [69] and [70].

Case(s) referred to

Adili Chibuike Ejike v PP [2019] 2 SLR 254 (refd)

Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525; [1988] SLR 132 (refd)

Eng Foong Ho v AG [2009] 2 SLR(R) 542; [2009] 2 SLR 542 (refd)

Gobi a/l Avedian v AG [2020] 2 SLR 883 (refd)

Gobi a/l Avedian v PP [2021] 1 SLR 180 (refd)

Kho Jabing v PP [2016] 3 SLR 135 (refd)

Lim Meng Suang v AG [2015] 1 SLR 26 (refd)

Muhammad Ridzuan bin Mohd Ali v AG [2015] 5 SLR 1222 (refd)

Ong Ah Chuan v PP [1979–1980] SLR(R) 710; [1980–1981] SLR 48 (refd)

PP v Ang Soon Huat [1990] 2 SLR(R) 246; [1990] SLR 915 (refd)

PP v Syed Suhail bin Syed Zin [2016] SGHC 8 (refd)

Quek Hock Lye v PP [2012] 2 SLR 1012 (refd)

Ramalingam Ravinthran v AG [2012] 2 SLR 49 (refd)

Syed Suhail bin Syed Zin v AG [2021] 1 SLR 809 (folld)

Syed Suhail bin Syed Zin v PP [2021] 1 SLR 159 (refd)

Facts

The applicant, Syed Suhail bin Syed Zin, was convicted and sentenced to the mandatory death penalty for trafficking in not less than 38.84g of diamorphine under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) in PP v Syed Suhail bin Syed Zin[2016] SGHC 8 (“Syed Suhail (HC)”). The Court of Appeal dismissed his appeal against his conviction and sentence. His petition for clemency was rejected, and his execution was scheduled to be carried out. Subsequently, the President of the Republic of Singapore (the “President”) ordered a respite of the execution pending any further order. This order was made pending the outcome of a separate application for judicial review in relation to an alleged unlawful method of execution. Following the resolution of that judicial review application, the President issued a new order for the applicant to be executed on 18 September 2020.

Shortly before his execution, the applicant commenced OS 891/2020 seeking leave to apply for a prohibiting order for the stay of his execution. His application in OS 891/2020 was dismissed. In CA 155/2020, he appealed against the decision in OS 891/2020 dismissing his application. The applicant was granted leave by the Court of Appeal to commence judicial review proceedings, solely on the ground of his challenge against the scheduling of his execution ostensibly ahead of other prisoners similarly awaiting capital punishment. Accordingly, he filed the application in the present summons for a prohibiting order to stay his impending execution.

Two issues arose for determination in the present proceedings. The first issue, in respect of Art 12(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“Constitution”), was whether the applicant had been subject to impermissible differential treatment vis-à-vis other prisoners who were sentenced earlier than him and who had had their clemency petitions rejected, but whose execution had not been scheduled at the point when his date of execution was scheduled (the “sequence of execution argument”). In respect of this argument, the applicant submitted that one Datchinamurthy a/l Kataiah (“Datchinamurthy”) and one Masoud Rahimi bin Mehrzad (“Masoud”) had been sentenced to death before him, but their dates of execution had yet to be scheduled. The applicant submitted that his constitutional right had been breached as the scheduling of the execution of prisoners' sentences did not share a logical nexus with the order in which they were sentenced.

The second issue, in respect of both Arts 12(1) and 12(2), was whether the applicant had been discriminated against as a Singaporean vis-à-vis non-Singaporeans by virtue of having his date of execution allegedly scheduled earlier as a result of the COVID-19 pandemic (the “nationality argument”). The applicant submitted that he had been discriminated against as a result of an “exercise of expediency”, thus violating his right to equal protection under Art 12(1) of the Constitution. Further, he claimed that Singaporeans were being executed first while the execution of death sentences for non-Singaporeans (among whom only Datchinamurthy had been identified) was being halted till the reopening of Singapore's borders in view of the COVID-19 situation. Such alleged discrimination against him based on nationality also violated his right under Art 12(2) of the Constitution which expressly provided that there shall be no discrimination against citizens of Singapore on the ground only of place of birth, in connection with certain stipulated categories.

Legislation referred to

Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 12(1), Art 12(2) (consd); Art 22P(1)

Corruption, Drug...