The High Court on Wed (11 Mar) dismissed the Attorney-General’s application of costs against lawyer M Ravi pertaining to the cases of two Malaysian death row prisoners.
In dismissing the AGC’s application, Justice Valerie Thean asked if the statement made by Deputy Senior State Counsel Wong Woon Kwong — the A-G’s representative — regarding reserving the A-G’s rights against Mr M Ravi was discourteous.
In a Facebook post yesterday, Mr M Ravi said that the High Court’s decision was “a significant” one for Defence Counsels working on death row inmates’ cases and “a great outcome for the Bar as a whole”.
Datchinamurthy Kataiah — one of the death row prisoners — alleged in an affidavit he filed previously that the A-G’s representatives had told the court during a pre-trial conference on 4 Feb that they “reserve” their “rights against Mr M Ravi”.
Mr Datchinamurthy claimed that despite Mr M Ravi’s repeated attempts to seek clarification from the A-G’s representatives regarding their statement, he was not given any explanation regarding the statement.
The A-G’s representatives’ statement, he added, is “an interference with our rights to a fair hearing and independent legal counsel” as provided for under Article 9 of the Singapore Constitution.
Mr M Ravi’s application “substantively flawed”, relied purely on hearsay based on Lawyers For Liberty’s statement and its legal coordinator’s affidavit: AGC
The AGC, in arguing that Mr M Ravi should be made to pay costs, cited the test in Bintai Kindenko Pte Ltd v Samsung C&T Corp , in which it must be proven that:-
(a) The solicitor has acted improperly, unreasonably, or negligently;
(b) Such conduct caused the applicant to incur unnecessary costs; and
(c) It is just in all the circumstances to order the solicitor to compensate the applicant for the whole or any part of the relevant costs.
In finding out whether a solicitor has likely acted “improperly, unreasonably or negligently” in legal terms, the Court of Appeal reasoned in Bintai that at least two different kinds of circumstances should be present, namely:
- First, where the solicitor “advances a wholly disingenuous case or files an utterly ill-conceived application”; or
- Second, where the solicitor “engages in thoughtless and undiscerning preparation of documents in respect of court proceedings”.
The two aforementioned situations, argued the AGC, were present in Mr M Ravi’s handling of his clients’ application.
Branding the application filed by Mr Datchinamurthy and Mr Gobi as “substantively flawed and ill-conceived”, the AGC argued that their statement had “failed to disclose any grounds of judicial review” upon which said application is premised.
This is contrary to an “express requirement” stipulated in the Rules of Court (ROC), the AGC argued.
Further, the AGC stated that seeking judicial review “of decisions that have not even been made” is “plainly wrong and premature”.
The AGC also claimed that the two death row prisoners did not, whether through Mr M Ravi or otherwise, “approach the relevant executive bodies in question” to obtain either a stay of execution or a request for immunity for the purported former SPS officer.
Additionally, the AGC posited that Mr M Ravi’s own purported “failure to approach the relevant authorities” to request the above implies that the lawyer “was not actually interested in the decision of the authorities” — which it said is “the entire point of judicial review” — and was not keen on verifying the “the veracity or reliability of his information with the relevant authorities”.
The AGC also argued that there was “no factual basis” upon which the application was made, as the Government’s position on the allegations made by Malaysian human rights group Lawyers For Liberty is indisputable — namely that all executions “have to be personally witnessed by the Superintendent of Prison and a medical officer”.
Neither the Malaysian death row prisoners nor Mr M Ravi himself, said the AGC, had personal knowledge of the allegations.
Mr M Ravi, according to the AGC, relied “entirely on information he received from LFL”, which it said is an organisation that has been “waging a campaign” against the death penalty in Singapore and has made “scurrilous attacks” against the Singapore government in the process.
“As an advocate and solicitor and officer of the court, he has a duty to consider the evidence and ensure that there was reasonably credible material before mounting his arguments, in particular where the claims being levelled are serious ones that impugn the integrity of government institutions,” said the AGC.
“Instead of ensuring that he was not facilitating the bringing of an application premised on scandalous falsehoods, Mr Ravi either deliberately or negligently ignored the reliability issues, and included inadmissible evidence in both the Plaintiffs’ Affidavit and Zaid’s [LFL’s legal coordinator] Affidavit.
“This was in direct contravention of O 41 r 5(1) of the ROC which stipulates that an affidavit may only contain such facts as the deponent is able of his own knowledge to prove,” said the AGC.
Regarding the alleged threat made against Mr M Ravi by the A-G’s representatives at a pre-trial conference, the AGC argued that Mr M Ravi’s clients had “no personal knowledge of what happened at the 4 February PTC, and were, therefore, acting based solely on Mr Ravi’s account of the events and his advice”.
Mr M Ravi’s conduct in making applications “bereft of legal and factual merit”, the AGC argued, has placed not only his clients and their loved ones in distress, but also other inmates and their families by “raising a spectre of suspicions” about the alleged brutality in state executions in Singapore.
AGC failed to prove that seeking order of costs against M Ravi is just in all the given circumstances: M Ravi
Mr M Ravi in his submissions, however, argued that the AGC could have applied to strike out the judicial review application if they found his clients’ claim to be unmeritorious.
He added that the AGC has failed to meet the third element in the Bintai test, which calls for the order of costs against him to be just in all the circumstances.
He referred to the English case of R v London Borough of Westminster, ex parte Geehan & Butler , in which the judge found that it was not negligent for a counsel to bring proceedings despite the absence of an arguable ground for judicial review, as the urgency of the case and the potential harm against the plaintiff at the time outweighs the need for such grounds.
Mr M Ravi also argued that in order for the court to be able to exercise “effective supervisory jurisdiction” over “those who wield power”, the threat of “adverse costs orders” of a personal nature against counsels should not be allowed, as there is a vested public interest in ensuring that the relevant authorities are properly scrutinised by the judiciary.
“There is a special public interest in ensuring that those who wield power are subject to the effective supervisory jurisdiction of the courts, akin to the public interest in criminal proceedings.
“This is particularly forceful in the context of death penalty cases, where the disposition of a party’s rights may be final in the truest sense,” he argued.
Mr M Ravi also acknowledged that while neither he nor his clients knew personally of the truth of the allegations made by LFL and the information supplied by the purported former SPS officer to Mr Zaid Malek, such material was made “very time-sensitive” by the fact that Mr Gobi and Mr Datchinamurthy were on death row and do not know when or if the executions will be carried out.
“Essentially, the present applications were urgently brought to preserve the status quo until the truth of the allegations may be determined. The stay was necessary to prevent the execution of the Plaintiffs until the truth had been determined,” he said.
Mr M Ravi also argued regarding the AGC’s point on relying on hearsay evidence that as the ROC do not apply in criminal proceedings, the admissibility provisions in the Criminal Procedure Code (CPC) and Evidence Act (EA) apply to the affidavits in the present applications.
He specifically referred to Section 268 of the CPC, which provides for the admissibility of hearsay evidence that falls under the EA to statements in criminal proceedings, on which the present applications rely.
The former SPS officer’s evidence as provided for in Mr Zaid Malek’s affidavit also falls under Section 32 of the EA and was thus admissible.
“Mr Malek’s clear and unrebutted evidence was that the ex-SPS officer was outside Singapore and that he was unwilling to attend absent an assurance as to whether, despite being a whistleblower, he would not be prosecuted for giving his evidence,” said Mr M Ravi.
There was also no reasonable basis to doubt Mr Zaid Malek’s integrity or honesty, he added, as Mr Zaid Malek is “an officer of the court in Malaysia”.
M’sian death row prisoners apply to High Court for stay of execution, protection order for former SPS officer
His clients Mr Datchinamurthy and Gobi Avedian, another Malaysian death row prisoner, had earlier applied to the High Court — and against the A-G and the Home Affairs Minister — to halt their execution and to provide immunity for a former SPS officer who is willing to testify regarding their case.
The two Malaysians in the immediate case were convicted on drug trafficking charges separately and were sentenced to death in 2015 and 2018 respectively.
Judge Thean, in dismissing their applications on 14 Feb, reasoned that media reports such as the statement made by LFL — which they had relied upon in an affidavit — “are not reliable evidence” to be used in judicial proceedings.
Touching on the application for the mandatory order for the former SPS officer against civil and criminal liability the A-G and the Home Affairs Minister, the judge noted that Mr M Ravi had accepted “in his written submissions that the court cannot compel the Minister or the AG not to prefer charges”, but to instead compel them to consider using their discretion to grant immunity
“I note that the AG has exercised his discretion,” she said, adding that there is “no basis in law to impose a duty on the Minister” to consider granting immunity in such a manner.
Mr M Ravi said that his clients will be appealing against the High Court decision on their applications for stay of execution and immunity for the purported SPS officer.
He said that the appeals focus on “the right of access to justice without any interference into lawyer’s representation”, which is “tantamount to the right of fair hearing being affected” as a result of “any threat to independent legal representation”.
Mr Datchinamurthy and Mr Gobi’s appeals to the Court of Appeal is being scheduled to be heard later this month and are being expedited.
Mr M Ravi yesterday (11 Mar) said that he has applied for the Notes of Evidence, as Justice Thean had “made certain significant observations” on the A-G’s statement against him when Mr Wong was reserving the Government’s rights against him personally at the pre-trial conference.
The lawyer was represented by Eugene Thuraisingam LLP in the immediate case.
Edit (Thu, 12 Mar, 12:42pm): This article has been amended to include more details on Justice Valerie Thean’s decision.