Court of Appeal reserves judgment on Malaysian death-row inmates’ bid to challenge unlawful hanging procedures

Explosive revelations of conduct by Prisons in forwarding inmates' confidential letters to state counsel, and state counsel's comment of reserving rights against defence lawyer, came under scrutiny by apex court

The appeals of two Malaysian inmates on death-row, 32-year-old Gobi a/l Avedian and 35-year-old Datchinamurthy a/l Kataiah, against the decision of a High Court judge to dismiss their applications concerning allegedly unlawful hanging procedures by the Singapore Prison Service (Prisons), revealed certain explosive revelations that came under intense scrutiny by the Court of Appeal, including the practice by Prisons to forward confidential letters from inmates to the State’s lawyers as third-party organizations.

On 16th January this year, Malaysian rights group Lawyers for Liberty (LFL) issued a statement, claiming that executions at Changi Prison were carried out by kicking the back of the prisoner’s neck in the event of the rope breaking. This statement had been the subject of a number of correction orders from the Ministry of Home Affairs, of which two were currently before the courts.

Acting on the information provided by lawyers from Malaysia, Gobi and Datchinamurthy, represented by Mr M Ravi, filed an application on 28th January seeking, among other things, a stay of execution on their death sentences and for immunity to be granted to a former Prisons officer such that he may be able to give evidence in relation to unlawful execution procedures without fear.

At a pre-trial conference on 4th February, Deputy Public Prosecutor Wong Woon Kwong, acting for the State in the application, commented that “I had been instructed that we are reserving all rights against Mr Ravi”. This formed the basis of the second application where the inmates sought a declaration that DPP Wong’s comments had infringed their right to a fair hearing under Article 9 of the Singapore Constitution.

On 13th February, Justice Valerie Thean heard and dismissed the applications. In her oral judgment, she ruled that the affidavit relied on did not adhere to the rule in non-interlocutory applications that “it should only contain facts which the deponent could prove by his own knowledge” and was therefore inadmissible; as a result, no factual basis existed for an arguable case to be made out. At a subsequent hearing in March, she dismissed the Prosecution’s application for a personal costs order to be made against Mr Ravi.

The appeals were first heard on 2nd April this year, where Gobi and Datchinamurthy sought an adjournment for a further affidavit to be filed by the Malaysian lawyers and/or the former Prisons officer, as they were unable to do so in view of the Movement Control Order in Malaysia which took effect since 18th March.

The Court of Appeal, led by Judge of Appeal Andrew Phang and which included Judge of Appeal Judith Prakash and Justice Woo Bih Li, while acknowledging the State’s point that the inmates had opportunities to adduce the affidavit, nevertheless granted a four-week adjournment for them to do so and to digest the State’s submissions as they were unrepresented at that hearing.

Following the adjournment, Mr Ravi agreed to act as McKenzie friend for the two inmates, and a further affidavit was filed by the Malaysian lawyers, setting out the credentials of the former Prisons officer as well as the allegation that there were indeed unlawful hanging practices from 1991 (when the officer first joined Prisons) to 1994 (when the officer quitted).

At the restored hearing on Monday (15th June), in a courtroom armed by SPEAR officers akin to a battlefield, Gobi and Datchinamurthy addressed the court through an interpreter as well as in English speaking notes, pointing out that the affidavits filed by the State, in attesting to the fact that no such unlawful practices carried out between March 2014 to September 2018, had not rebutted the existence and credentials of the Prisons officer, nor the allegations that there were such practices from 1991 to 1994.

As against this, DPP Wong sought to uphold Justice Thean’s reasoning that the affidavits were inadmissible. This was quickly met by comments from Justice Prakash, who pointed out that the leave application has yet to be ruled on when the affidavit was sought to be admitted, and whether the present application is of an interlocutory nature would depend on whether it was eventually ruled in the inmates’ favour. She also raised the point that the State themselves had not applied for the affidavit to be struck out, while Justice Woo also pointed out the admissibility of the affidavits is a different issue from the weight to be given to its contents.

The inmates also raised complaints that Prisons had been forwarding their confidential letters to the State’s lawyers who in turn fowarded them to the Court of Appeal, in a letter dated 21st April. As against this, DPP Wong informed the judges that they were ensuring that the inmates were not misleading the court on certain factual aspects.

The judges, having read the provisions in the Prisons Regulations which empowered Prisons to screen and record letters from inmates excluding those sent to and from their legal advisors, questioned DPP Wong as to whether it was proper, as a matter of principle and procedure, for Prisons to sent such confidential information to third parties such as the Attorney-General’s Chambers, even if the State’s intention was in good faith.

On one occasion, Justice Phang also pondered over whether “legal advisors” in the said regulations, in a case where an inmate was not represented by lawyers on record, could include family and relative members, or McKenzie friends such as Mr Ravi in the present case.

The judges also grilled Deputy Chief Prosecutor cum Senior Counsel Francis Ng, who addressed the court on the appeal concerning the breach of the inmates’ right to a fair hearing, when he submitted that DPP Wong’s comment was merely to put Mr Ravi on express notice that an application for a personal cost order or complaint to the Law Society might be made against him, and that in any event, Mr Ravi had continued to act for the inmates before the High Court.

In particular, Justice Woo observed that while it was common for such comments to be made against litigants, the same could not be said for lawyers who are representing them. Justice Prakash also noted that when the comment was made, nothing was mentioned about the conduct which the State expected Mr Ravi to desist from proceeding.

Mr Ravi, upon Justice Woo’s invitation, referred the court to DPP Wong’s affidavit where the latter stated that “the Government was keeping open a full range of possible options that it might avail itself of”, suggesting that it was not limited to personal cost orders or a potential complaint to the Law Society against him, to bolster the case that DPP Wong’s comments amounted to a threat.

The Court of Appeal has reserved judgment and will give its decision on a date to be fixed.

On a side note, Gobi had a separate application which will be heard on the following day (16th June), where a 5-judge Court of Appeal will be reviewing the correctness of its earlier decision by three of its members to convict Gobi on a capital charge of trafficking in 40.22g of diamorphine and sentence him to death.

Judge of Appeal Tay Yong Kwang, who wrote the judgment of the apex court to convict Gobi on the capital charge, had summarily granted Gobi’s earlier application to reopen his concluded criminal appeal as a single judge on 20th February, a week after Justice Thean dismissed the judicial review applications.

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