Court of Appeal throws out Malaysian death-row inmates’ bid to challenge unlawful hanging procedures

The Court of Appeal has rejected the appeals by two Malaysians on death-row seeking judicial review of unlawful hanging procedures on Thursday (13th August), following two months of deliberation of the parties’ arguments.

In a 39-page written judgment delivered by Judge of Appeal Andrew Phang, the court, though upholding the High Court’s decision, disagreed with certain aspects of Justice Valerie Thean’s reasoning below.

In support of their applications for judicial review, 32-year-old Gobi a/l Avedian and 35-year-old Datchinamurthy a/l Kataiah had relied on an affidavit from Mr Zaid bin Abd Malek, their lawyer in Malaysia, as the factual basis for the application.

Mr Zaid stated that he had met a former officer from the Singapore Prison Service (“Prisons”), who claimed that officers were trained to execute prisoners by kicking the back of their neck in the event that the rope broke during a judicial execution.

Justice Thean had ruled that the affidavit was not admissible, as it breached the rule in non-interlocutory applications that the affidavit “should contain only facts which the deponent could prove by his own knowledge”, as such no factual basis existed for an arguable case to be made out.

However, the Court of Appeal – which also included Judge of Appeal Judith Prakash and Justice Woo Bih Li – ruled that Mr Zaid’s affidavit, despite being hearsay, was admissible as the inmates’ application for leave to commence judicial review amounted to an “interlocutory proceeding” at the point its admissibility was being considered, such that hearsay evidence could be admissible.

Nevertheless, the court ruled that Mr Zaid’s affidavit, though admissible, “failed to meet the minimum threshold of reliability” as he had, among others, failed to provide the name or address of the former SPS officer, leaving the court in a position of not having sufficient evidence to judge the reliability of the evidence from the said officer.

Turning to the statement made at the pre-trial conference by Deputy Public Prosecutor Wong Woon Kwong against Mr M Ravi, who represented Gobi and Datchinamurthy before the High Court and eventually as McKenzie friend during the appeal, i.e. “I am also instructed to state that we are expressly reserving all our rights against Mr Ravi”, the Court of Appeal ruled, against the State’s lawyers, that it is not common for a lawyer to inform another that rights are being reserved against him personally.

Further, the Court of Appeal also noted that there was nothing in the record to elaborate how Mr Ravi had acted improperly at the PTC or what he should have refrained from doing to avoid consequences. The statement, when read in context, suggested that the instructions must have come before the PTC, and therefore could be reasonably construed as intimidating to Mr Ravi.

Nevertheless, the court held that the right to counsel under Article 9 of the Constitution was not infringed by the statement as the provision applied only to criminal proceedings, and it does not confer a right on Mr Gobi and Mr Datchinamurthy to be represented in all applications despite them being prisoners, such as a civil application for judicial review. Further, Mr Ravi had continued to represent them before the High Court and only discharged himself from acting in this matter after the High Court’s decision.

The Court of Appeal also addressed the complaint by Datchinamurthy that Prisons had forwarded copies of documents from his family members to the Attorney-General’s Chambers. They ruled that while the Prisons Regulations empowered Prisons to make copies of letters sent by or to a prisoner, it does not permit the Prisons to forward such copies to the AGC without the prisoner’s consent or order of court.

In so doing, the court took the opportunity to clarify a duty on the AGC’s part, as the Prisons’ legal advisor, to exercise due caution in avoiding the possibility of a mistaken impression that it seeks an undue advantage in any legal proceedings, as well as a duty to safeguard the rights of prisoners in the custody of Prisons.

The AGC, having been informed of the proper procedure to be adopted at the earlier hearing in June, has since destroyed all copies of correspondence received from Prisons.

Meanwhile, the Court of Appeal’s judgment on a separate application by Gobi to review the correctness of their earlier decision to convict Gobi on his original capital charge of trafficking in 40.22g of diamorphine and sentence him to death, remains reserved and will be delivered at a later date.

Mr Ravi, in a Facebook live video after receiving the written judgment, welcomed the apex court’s pronouncement which vindicated his rights as a defence lawyer and hoped for an apology from the AGC.