22 death row inmates in Changi Prison have mounted a legal challenge over their confidential letters allegedly being forwarded by the prison to prosecutors in the Attorney-General’s Chambers, in breach of prison regulations.
The inmates are applying to the High Court for a pre-action discovery of relevant documents, namely:
- All letters from the A-G requesting the Changi Prison superintendent to supply copies of the inmates’ correspondence;
- All letters from the Changi Prison superintendent to the A-G with enclosed copies of the inmates’ correspondence; and
- The inmates’ correspondence forwarded by the Changi Prison superintendent to the A-G, “together with any enclosures to that correspondence”.
The inmates also applied for leave to serve pre-action interrogatories against the A-G and the Changi Prison superintendent.
Mr Ravi in a Facebook post on Saturday (16 January) alleged that the Deputy A-G Hri Kumar Nair “through his affidavit has disclosed that 13 out of the 22 inmates had their correspondence forwarded to AG’s office”.
“This was done without authorisation and in breach of the Prison Regulations and common law protection,” he added.
Mr Ravi said that he had asked the A-G and the Prison Superintendent for the names of the legal officers or public servants “who came into possession of the subject documents and if they requested these documents”, among other related questions.
The Attorney-General, one of the two defendants in the immediate case, is represented by Senior Counsel Tan Chee Meng and a team of lawyers from Wong Partnership.
The Changi Prison Superintendent is represented by Senior Counsel Abraham Vergis and his team.
True scale of the requests and disclosures in the cases of all prisoners is unknown, says M Ravi
On Monday (18 January), lawyer M Ravi, who is representing the inmates on a pro bono basis, submitted before the High Court that the A-G had merely put forth a “procedural and legalistic” defence at the expense of “justice and fairness”.
The A-G’s arguments, he argued, did not address whether it is fair for the A-G to obstruct the inmates in this action from initiating proceedings “against public officers who have committed misconduct”.
“Public officers and servants are not immune from the law. In fact, one of the very foundations of the rule of law is that public officers and servants uphold the law,” said Mr. Ravi.
The A-G’s counsels, Mr Ravi argued, have “gone to considerable lengths in their submissions to prevent the disclosure” to the inmates of the identities of the relevant public officers, but did not indicate at any stage “why it serves the administration of justice to prevent this disclosure”.
Further, Mr Ravi argued, his clients “have made it abundantly clear that they seek the identities of the persons involved in the wrongdoing” for the purpose of confirming “whether or not they have a cause of action to bring and who might be the proper parties to such potential claims”.
“It is patently obvious that without knowing the identities of the actors involved, and what was disclosed, the Plaintiffs cannot assess their legal remedies or bring any such claims,” he stressed.
Without access to the documents sought, Mr Ravi added, the inmates in this action “would not know whether the documents were legally privileged and thus would not be able to properly frame their complaints as either breaches of legal privilege, breaches of confidentiality, breaches of the Prison Regulations or simply ultra vires”.
Mr Ravi submitted in the hearing before Justice See Kee Oon today that any procedural deficiency such as those alleged by the A-G’s counsels “does not nullify the proceedings”.
“If this Court requires those Plaintiffs to serve an affidavit in the same terms as the 1st 2nd, 3rd 5th and 6th Plaintiffs so that the appropriate order can be made, then they will undertake to do so.
“Moreover, there would be nothing to prevent the 10th, 11th, 12th 13th 14th 15th 18th and 19th Plaintiffs from refiling an application if their current application were to be dismissed on this procedural basis,” he said.
Mr Ravi also stressed that the A-G has not denied that “public prosecutors who received such correspondence read all such correspondence”.
There was also no denial of whether such correspondence was retained “when it is quite clear that it should have been destroyed” and “even when it was plainly illegal”, he added.
Mr Ravi also submitted that the A-G had even failed to disclose during the proceedings of Gobi a/l Avedian vs Attorney-General  that forwarding prisoners’ personal correspondence to public prosecutors was a frequent occurrence.
He added that the A-G had “misleadingly allowed the Court of Appeal to believe that the disclosures in those two cases were isolated incidents” and was therefore an ‘oversight’.
An audit of unauthorised disclosures was carried out by the A-G for only 22 prisoners, of which disclosures were revealed in 13 cases, Mr Ravi noted.
“The true scale of the requests and disclosures in the cases of all prisoners is unknown,” he said.
Documents sought not relevant and AGC did not request for correspondence
Counsels for the A-G earlier argued that the inmates’ application should be dismissed in respect of the fourth, seventh, eighth, ninth, 16th, 17th, 20th, 21st and 22nd plaintiffs.
The aforementioned inmates, they said, did not meet the necessary — and high — procedural thresholds, which is to state in an affidavit the grounds of their application and the material facts pertaining to the intended proceedings.
Mr Ravi’s first affidavit for the fourth to eighth plaintiffs, the A-G’s counsels argued, only references facts in respect of the first to third plaintiffs.
The said affidavit also speculates that the fourth to eighth plaintiffs may have similar claims, the A-G’s counsels added.
Neither did the first defendant request nor receive “any correspondence sent by and/or to” the fourth, seventh and eighth plaintiffs, the A-G’s counsels added.
The A-G, said the counsels, also did not request for any correspondence sent by and/or to the fifth and sixth plaintiffs.
“lt is thus simply not enough to speculate and attempt to fish for documents on the back of completely unrelated factual matrices in respect of entirely unrelated parties,” said the A-G’s counsels.
Mr Ravi’s first affidavit for the ninth to 11th plaintiffs did not refer to them. Further, the 12th to 22nd plaintiffs did not have a supporting affidavit, said the A-G’s counsels.
“This is clearly fatal to these Plaintiffs’ claim, because there has not even been an attempt to fulfil the procedural thresholds and safeguard imposed by the Rules of Court,” the counsels argued.
Earlier, the A-G also submitted that the inmates in this action were not able to demonstrate that “the documents sought are at all relevant or necessary to any issue”.
This is because contrary to the inmates’ primary assertion that they cannot begin proceedings in the absence of documents and interrogatories that indicate the identities of the public servants involved, the proceedings will not be commenced against such individuals, but against the A-G “as the legal representative of the Government”.
“ln this regard, there can be no real dispute that relevant “public servants” were acting in official capacities (i.e., as agents of the Government) when they either requested or sent the Plaintiffs’ correspondence.
“There has been no contention by any of the Plaintiffs, nor any evidence led, that any of these “public servants’ had acted in their personal capacities,” said the A-G’s counsels.
Judgement has been reserved on the above matter and is expected to be out in two to three months.