Case Summaries

Syed Suhail bin Syed Zin v Public Prosecutor [2021] SGCA 53

SUPREME COURT OF SINGAPORE

14 May 2021

Case summary

Syed Suhail bin Syed Zin v Public Prosecutor
[2021] SGCA 53
Criminal Motion No 28 of 2020

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Decision of the Court of Appeal (delivered by Justice of the Court of Appeal Justice Andrew Phang Boon Leong):

Outcome: CoA orders the applicant’s counsel to pay costs of $5,000 personally to the Prosecution.

Pertinent and significant points of the judgment

  • Haphazard and irresponsible attempts at reopening concluded appeals would be looked upon with disfavour: at [48].
  • Defence counsel have a very important role to play in the context of the review procedure under Division 1B of Part XX of the Criminal Procedure Code. Counsel have a duty to assist in the administration of justice, which includes the maintenance and preservation of finality in the legal system. The specific requirement for counsel to file an affidavit underscores the principle that review applications are exceptional, the threshold for review is high, and defence counsel must ensure that unmeritorious applications are not brought: at [54].
  • Lawyers should be aware that their advice must be accurate, measured, and serve the interests of justice, and that they should not simply encourage last-ditch attempts to reopen concluded matters without a reasonable basis. Due consideration should be given to the high threshold for a successful review application and the fact that it was a limited avenue of recourse which was not intended to simply allow anyone to relitigate their case: at [56].

Background facts

1 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) (“the MDA”). His defence at trial was that all of the drugs found in his possession were for his personal consumption. The trial judge (“the Trial Judge”) held that the applicant had failed to prove on the balance of probabilities that the drugs in his possession were for personal consumption and, as a consequence, had failed to rebut the presumption under s 17 of the MDA.

2 As for sentencing, the Trial Judge held that the applicant was not a mere courier. The Trial Judge held that s 33B(3)(b) of the MDA did not apply as the applicant did not claim that he was suffering from the requisite abnormality of mind. No certificate of substantive assistance was issued. In the circumstances, the Trial Judge imposed the mandatory death penalty on the applicant. On 18 October 2018, the applicant’s appeal in CA/CCA 38/2015 (“CCA 38”) against his conviction and sentence was dismissed by the Court of Appeal.

3 On 17 September 2020, the applicant applied for leave under s 394H of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”) to make a review application under s 394J of the CPC on two grounds: (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”).

4 Leave was granted on 19 September 2020. The review application was filed on 21 September 2020 and was heard on 22 September 2020. Mr Ravi s/o Madasamy (“Mr Ravi”), counsel for the applicant, confirmed at the hearing of the review application that he would not be relying on the Inheritance Ground. Mr Ravi was granted leave to make further submissions to persuade the Court that the applicant was a courier within the meaning of s 33B(3)(a) of the MDA (“the Courier Argument”).

5 On 16 October 2020, the Court dismissed the review application in a written judgment reported as Syed Suhail bin Syed Zin v Public Prosecutor [2021] 1 SLR 159 (“the Judgment”). Subsequent to the release of the Judgment, the Prosecution wrote to court stating its intention to seek a personal costs order against Mr Ravi. Mr Ravi was invited to respond to the Prosecution’s submissions.

The Court’s decision

6 The Court had the power under s 357(1)(b) of the CPC or its inherent powers to order that defence counsel pay costs directly to the Prosecution. In determining how to exercise the power, the principles developed in the context of civil cases were of general application here as well. The Court would apply a three-step test: (a) Has the legal representative of whom complaint is made acted improperly, unreasonably or negligently? (b) If so, did such conduct cause the other party to incur unnecessary costs? (c) If so, is it in all the circumstances just to order the legal representative to compensate the other party for the whole or any part of the relevant costs?: at [16], [18], and [19].

Improper, unreasonable or negligent conduct

7 The Court found that Mr Ravi had acted improperly in the manner in which he commenced and conducted the review application: at [24].

8 The Court did not agree with the Prosecution that Mr Ravi had acted improperly in omitting to mention in his affidavit that the applicant’s trial counsel had confirmed to the Trial Judge that the applicant was not relying on s 33B(3)(b) of the MDA, as that was not material to Mr Ravi’s argument. Further, in relation to the Prosecution’s argument that Mr Ravi had failed to refer to evidence which contradicted his argument in his affidavit, the Court held that there was no duty on counsel to make full and frank disclosure in the supporting affidavit in the sense in which it is traditionally understood, as the leave and review applications were not heard ex parte: at [26] and [27].

9 However, a reasonable defence counsel would have known that there was no basis for the Abnormality of Mind Ground and the Courier Argument. First, in order to get around the fact that trial counsel had expressly confirmed twice that the applicant was not alleging that he suffered an abnormality of mind for the purposes of s 33B(3)(b) of the MDA, Mr Ravi had to allege that the trial and appellate counsel had simply failed to pursue the inquiry. However, there was no basis for such allegations. Second, in formulating the grounds for review, Mr Ravi did not appreciate that the requirements of abnormality of mind and of being a courier were conjunctive requirements. Further, the Courier Argument, when eventually raised, was without merit. This meant that the applicant could not have shown that there was a miscarriage of justice, even if he were suffering from the requisite abnormality of mind. Third, the Abnormality of Mind Ground was without merit, as the argument could have been made at trial or the appeal and it was not compelling in any event as none of the medical evidence in the case supported the claim: at [28], [29], and [30].

10 Mr Ravi misrepresented certain facts in his affidavit in relation to the Inheritance Ground, as he gave the false impression that the applicant’s appellate counsel had not pursued the inquiry in relation to the uncle’s evidence: at [31] and [32].

11 It should also have been clear from the outset that the Inheritance Ground would have failed. Opportunity had been given for the applicant to adduce the necessary evidence in the appeal. Mr Ravi conceded this when he confirmed that he was no longer relying on the Inheritance Ground. Mr Ravi’s attempt to characterise his concession of the Inheritance Ground as a point in his favour was implausible, as this was a case where he had no basis at all for advancing the argument in the first place: at [33] and [34].

12 Mr Ravi had also acted improperly in making allegations against the applicant’s trial and appellate counsel without evidence or factual basis. Further, in making the allegations, Mr Ravi had failed to abide by his professional duty to give counsel whose conduct he was criticising in court an opportunity to respond: at [35] to [40].

13 However, the Court did not find evidence of a collateral purpose to frustrate the process of the execution of the applicant’s sentence. The applicant had already obtained a stay of his execution in separate proceedings before the review application was heard. Further, it was obvious that the desired outcome was a successful application to set aside the conviction and/or death penalty, and more would be needed to suggest that intended outcome was in itself an abuse of process: at [41].

14 Mr Ravi’s counter-arguments were not accepted.

(a) First, Mr Ravi argued that he had limited time to assess the applicant’s case. However, the problems with the case did not concern issues that required a significant amount of time to assess: at [43].

(b) Second, the fact that this was a capital case did not warrant a relaxation in the standards expected of counsel. In fact, maintaining rigorous standards was particularly important. The review application process was not something that every accused person should avail himself or herself of. A review application was not an appeal. No application should be brought if there was no merit to the case for review. In this emotive content, such decisions were not always easy, and adverse costs orders would not generally be made against counsel who make errors of judgment which do not amount to improper or negligent conduct. However, counsel were expected to exercise self-discipline and to act with reason: at [44].

(c) Third, Mr Ravi’s reference to his good faith belief that the review application was not bound to fail was misplaced. First, the fact that leave was granted to bring the review application should not have significantly affected Mr Ravi’s assessment of the merits of his case. It was his responsibility as counsel to assess the merits of his case. The mere granting of leave was not necessarily correlated with and did not support a belief that the review application was not bound to fail. Second, regardless of what he believed in good faith, Mr Ravi did not have a reasonable basis to believe that the application had merit. Mere good faith belief in the merits of the case without reasonable basis would not necessarily preclude a personal costs order being made: at [45] to [47].

15 Haphazard and irresponsible attempts at reopening concluded appeals would be looked upon with disfavour. The manner in which such an unmeritorious application was brought gave rise to the conclusion that the application was brought in abuse of the process set out in Division 1B of Part XX of the CPC, as the statutory requirements reflected the principle that finality was an important aspect of justice. The arguments raised in this case were attempts to relitigate what had already been conceded or determined in prior proceedings, or for which there was simply no new evidence or argument to be raised, and were hence entirely contrary to the very rationale of the statutory requirements: at [48].

Incurring of unnecessary costs

16 The application should never have been brought. The improper conduct therefore led to the incurring of unnecessary costs by the Prosecution. While Mr Ravi argued that the costs would have been lower if the Court had not decided to grant leave for the review application to be heard by a full coram, it was Mr Ravi’s position that the matter should go on for a full hearing and he could not now argue that the Court should have dismissed the matter at the leave stage: at [49] and [50].

Whether it was just to make the order

17 The Court found that it was just to make the personal costs order. First, the personal costs order was justified by the particular context of the review application. The strict requirements before a review application would be entertained reflected the interests of justice. Defence counsel had a very important role to play in the context of the review procedure under Division 1B of Part XX of the Criminal Procedure Code. Counsel had a duty to assist in the administration of justice, which included the maintenance and preservation of finality in the legal system. The specific requirement for counsel to file an affidavit underscored the principle that review applications were exceptional, the threshold for review was high, and defence counsel must ensure that unmeritorious applications were not brought: at [52] and [54].

18 Where counsel brought a patently unmeritorious application in the face of these principles, the case for a personal costs order was particularly strong. In particular, where an advocate deposed a belief that the application had merit despite the clear absence of merit, that could either mean that counsel was being dishonest or that counsel had failed to exercise reasonable competence in assessing the case. In either instance, that advocate would have failed to play the role expected of him or her in the criminal process, and this would be a very significant factor in favour of making a personal costs order against that advocate: at [55].

19 Second, accused persons who have been sentenced in particular to the death penalty should be protected from having their hopes unnecessarily raised and then dashed because of inaccurate or incompetent legal advice, especially given that the threshold for a successful application was very high. Lawyers should be aware that their advice must be accurate, measured, and serve the interests of justice, and that they should not simply encourage last-ditch attempts to reopen concluded matters without a reasonable basis. Due consideration should be given to the high threshold for a successful review application and the fact that it was a limited avenue of recourse which was not intended to simply allow anyone to relitigate their case: at [56].

20 Third, the improper conduct in this case was particularly egregious. There was a complete absence of merit in the application. Mr Ravi misrepresented certain facts in his affidavit and also failed to abide by his professional duties in relation to allegations against counsel. This was not merely a weak case (which counsel cannot generally be faulted for trying to pursue), but a case that was completely misconceived from the outset and improperly conducted: at [57].

21 The Court did not accept Mr Ravi’s arguments against a personal costs order.

(a) Mr Ravi’s reference to the issue of the applicant’s correspondence was not relevant to the review application: at [58].

(b) The mere fact that Mr Ravi represented the applicant pro bono was not relevant, as there was no reason why a lawyer who represented a client pro bono should be held to any lower standard: at [59].

(c) While the Judgment was among the first decisions from the Court of Appeal concerning the review application procedure, Mr Ravi’s improper conduct was not being assessed according to a new standard. What he did was improper on the basis of principles and standards that had already been made clear in statutes, rules, and authorities: at [60] and [61].

(d) While there was no decision addressing the potential for adverse costs orders against counsel for review applications, counsel should be well aware of the court’s power to make a personal costs order and of the standards to which they are held: at [62].

22 Mr Ravi’s conduct was egregious. The need for a personal costs order to reflect the Court’s firm disapproval of his conduct of the matter far outweighed any countervailing considerations. The Court wished to make clear that it would not tolerate such misconduct: at [64].

Quantum of costs

23 Even if the personal costs order was used to express disapproval of counsel’s conduct, this exercise is not one of sentencing, but of properly apportioning costs of proceedings between parties. The Court found that a personal costs order of $5,000 was appropriate: at [66].

 

This summary is provided to assist in the understanding of the Court’s judgment. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s judgment.

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