Syed Suhail bin Syed Zin v Attorney-General

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 23 December 2020
• Neutral Citation: [2020] SGCA 122
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 155 of 2020
• Published date: 29 December 2020
• Year: 2020
• Hearing Date: 22 September 2020,23 October 2020
• Plaintiff Counsel: Ravi s/o Madasamy (Carson Law Chambers)
• Defendant Counsel: Francis Ng Yong Kiat SC and Wuan Kin Lek Nicholas (Attorney-General's Chambers)
• Subject Matter: Constitutional Law,Judicial review,Equal protection of the law
• Citation: [2020] SGCA 122

Sundaresh Menon CJ (delivering the grounds of decision of the court):

The appellant is a prisoner facing capital punishment who has exhausted his rights of appeal and was not granted clemency. He was scheduled to be executed on 18 September 2020. On 16 September 2020, the appellant filed HC/OS 891/2020 (“the application”) seeking leave to commence judicial review proceedings against his imminent execution on two grounds: first, a challenge against the exercise of the power of clemency (“the clemency ground”), and second, a challenge against the scheduling of his execution ahead of other prisoners similarly awaiting capital punishment (“the scheduling ground”). The High Court dismissed the application but stayed the appellant’s execution pending his appeal to this court. After considering the further materials which the parties placed before us, we allowed the appellant’s appeal and gave him leave to commence judicial review proceedings solely on the scheduling ground. We now provide our full reasons for doing so.

Background

The appellant, a Singapore citizen, was convicted by the High Court on a charge of possessing not less than 38.84g of diamorphine for the purpose of trafficking under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) and was sentenced to the mandatory death penalty on 2 December 2015. His appeal to this court in CA/CCA 38/2015 (“CCA 38/2015”) was ultimately dismissed on 18 October 2018.

The procedure for carrying out the death penalty

Following the final imposition of the death sentence after the disposal of any appeal by the Court of Appeal, a number of legally prescribed steps must be taken before the death sentence can be carried out. For the purposes of the present discussion, it is useful for us to outline them briefly. Under Art 22P(2) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Constitution”), the trial judge and the presiding judge of the Court of Appeal that dealt with the case must furnish reports to the President, who will forward them to the Attorney-General (“the AG”). The AG provides his opinion on them, and the reports and the AG’s opinion are sent to the Cabinet so that it may advise the President on the exercise of the clemency power under Art 22P(1). Under s 313(e) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), a more comprehensive set of documents relating to the case must also be forwarded to the Minister by the presiding judge of the Court of Appeal that dealt with the case. Under Art 22P(1) of the Constitution, the Cabinet is to consider whether to advise the President to grant clemency, and the President is obliged to act in accordance with the Cabinet’s advice (see Yong Vui Kong v Attorney-General [2011] 2 SLR 1189 (“Yong Vui Kong (Clemency)”) at [82] and [180]). If clemency is not granted, then under s 313(f) of the CPC, the President is to transmit to the Court of Appeal an order stating the time and place of execution. Section 313(f) stipulates that this must be done “in accordance with the Constitution”. By virtue of Art 21(1) of the Constitution, this means that the President must act in accordance with the advice of the Cabinet (or a Minister acting under the general authority of the Cabinet) when setting the time and place of execution. Under s 313(g) of the CPC, upon receiving the President’s order under s 313(f) the Court of Appeal will cause a warrant to be issued under the seal of the Supreme Court setting out the prescribed time and place of execution. The warrant is directed to the Commissioner of Prisons who must then carry out the execution (s 313(i) of the CPC). Under s 313(h) of the CPC, the President may order a respite of the execution before it is carried out, and subsequently appoint some other time or place for the execution. The President’s power to order a respite of the execution of any sentence is set out in Art 22P(1)(b) of the Constitution, and this power must therefore also be exercised in accordance with the Cabinet’s advice.

The events described above unfolded in the present case as follows. On 5 July 2019, the appellant was informed that his petition for clemency to the President had been rejected. On 20 January 2020, the President made an order for the appellant to be executed on 7 February 2020. On 5 February 2020, the acting President ordered a respite of the appellant’s execution. On 8 September 2020, the President made a new order for the appellant to be executed on 18 September 2020.

The application

The appellant filed the application on 16 September 2020 seeking leave to apply for a prohibiting order against the Singapore Prison Service (“the SPS”) in order to stay his execution. The application was supported by an affidavit filed by the appellant’s counsel, Mr Ravi s/o Madasamy (“Mr Ravi”), on the appellant’s behalf (“Mr Ravi’s supporting affidavit”).

The application was brought on two grounds. Under the clemency ground, the appellant contended that his execution would be in breach of Art 22P and/or Art 9 of the Constitution, on the basis that the clemency power under Art 22P had been extinguished owing to disuse. In Mr Ravi’s supporting affidavit, it was asserted that clemency had not been granted in any capital case since 1998 despite there having been many executions, and that this suggested that there was a blanket policy by the Cabinet of disregarding clemency petitions in all drug-related cases. On this basis, it was submitted that the appellant’s case received no individual consideration. Mr Ravi’s supporting affidavit further argued that the disuse of the clemency power in drug-related cases since 1998 resulted in the clemency power being “wholly extinguished”. For this, he relied on the decision of the Federal Court of Australia in Ruddock v Vadarlis (2001) 110 FCR 491 (“Ruddock”). The foregoing arguments were said to have two implications: first, the failure to consider the appellant’s clemency petition individually amounted to a breach of natural justice contrary to Art 9(1) of the Constitution (“Art 9(1)”), and second, the extinction by disuse of the clemency power, which was essential in mitigating the harshness of the death penalty, violated his right to life under Art 9(1).

Under the scheduling ground, the appellant contended that the fixing of the date of his execution violated his right to equality under Art 12 of the Constitution (“Art 12”). Mr Ravi’s supporting affidavit claimed that no executions had been carried out to date in 2020, and that there were other prisoners awaiting capital punishment who had been sentenced to death prior to the appellant. He further alleged that the reason the appellant had been scheduled for execution ahead of other such prisoners was because of a decision by the State not to execute foreigners while border restrictions owing to the Coronavirus Disease 2019 (“COVID-19”) were in place, as this prevented their family members from entering Singapore and the repatriation of their remains. The appellant advanced two arguments under this ground: First, he argued that the order of execution of prisoners should follow the order in which they were sentenced to death. The failure to follow this order deprived the appellant of his right to a fair trial, as he would thereby be deprived of time within which he might have been able to adduce new evidence to seek to have his conviction reopened by the court (“the new evidence argument”). Second, the appellant argued that the scheduling of the executions of Singaporeans ahead of those of foreigners was an act of “discrimination based on expediency” that violated his right to equal protection under Art 12(1) of the Constitution (“Art 12(1)”) (“the discrimination argument”). He further argued that such discrimination based on nationality was expressly prohibited by Art 12(2).

At the same time, the appellant also applied for leave under s 394H of the CPC to make a review application under s 394J of the CPC, seeking to reopen his concluded appeal in CCA 38/2015 on the basis that relevant evidence had not been adduced. The appellant was granted leave, and we heard his review application together with the present appeal on 22 September 2020. On 16 October 2020, we issued our judgment, Syed Suhail bin Syed Zin v Public Prosecutor [2020] SGCA 101, dismissing the review application. The issues in the review application have no bearing on the present appeal, and we need say nothing further about them.

The decision below

It was not disputed that the requirements for leave to commence judicial review proceedings are that (Muhammad Ridzuan bin Mohd Ali v Attorney-General [2015] 5 SLR 1222 (“Ridzuan”) at [32]): the subject matter of the complaint has to be susceptible to judicial review; the applicant has to have sufficient interest in the matter; and the materials before the court must disclose an arguable or prima facie case of reasonable suspicion in favour of granting the remedies sought by the applicant. As there was no dispute as to the sufficiency of the appellant’s interest in the matter, the parties’ arguments revolved around the first and last requirements.

The High Court judge (“the Judge”) heard and dismissed the application on 17 September 2020. In his oral grounds, the Judge held that the subject matter of the complaint was not susceptible to judicial review as the SPS did not make any decision of its own; it was merely acting pursuant to the warrant issued by the Supreme Court. There was also nothing to suggest that the warrant issued by the Supreme Court was unlawful. The Judge further held that he would in any case have found the application to be time-barred.

Next, the Judge held that there was in any event no prima facie case of reasonable suspicion to justify the granting of leave. The Judge found the clemency ground unmeritorious because he considered that there...