The pre-action disclosures sought by 22 death row inmates against the Attorney-General (AG) and the Singapore Prison Service (SPS) are neither necessary nor relevant for nine of the applicants, as it is not disputed that none of their private correspondence with their lawyers and families was sought by the AG or forwarded by the SPS.
In the course of the hearing, it was revealed that the Attorney-General’s Chambers (AGC) had sought access to the private correspondence of 13 of the 22 death row inmates and had received the letters from the SPS.
In dismissing the inmates’ application for pre-action discovery and pre-action interrogatories against the AG, Justice See Kee Oon said in a written judgement on Tuesday (16 Mar) that there is no express provision for pre-action disclosures against the Government in statutory law.
“In the absence of any express provision to the contrary, the effect of Section 54 of the IA (Interpretation Act) is that Section 34 of the GPA (Government Proceedings Act) defines and limits the scope of disclosures available against the Government,” said the judge.
The Court’s powers to order either discovery or leave to serve interrogatories, he added, are “expressly premised upon” the above provision in the GPA.
Justice See also reasoned that there is a risk of “potentially frivolous applications for discovery even before a prima facie case has been put forth” before the proceedings.
He noted that the applicants, in this case, are no longer seeking pre-action disclosures in respect of judicial review.
Allowing their application for pre-action disclosures against the AG and SPS, said Justice See, could open the “floodgates” to more parties seeking pre-action disclosures against the Government, due to such an action possibly being easier than the conventional discovery processes associated with judicial review.
In the present case, the AG has already disclosed all the applicants’ correspondence that was received by the AGC.
This renders pre-action discovery “unnecessary”, as the applicants would then already have sufficient facts to begin proceedings, said Justice See.
On top of that, the AGC had disclosed that it had requested and did receive the correspondence of the first and 12th applicants.
“In addition, it has also been categorically affirmed that the AG did not “use such correspondence, or otherwise gain any advantage, in any legal proceedings against the Plaintiffs”.
Thus, the AG’s “voluntary disclosures” based on the above had already furnished the applicants with “sufficient documents and information to mount their contemplated claims as they may deem fit, whether for declaratory relief or premised on tort,” said the judge.
Addressing the applicants’ tortious ground of misfeasance in public office on the part of the SPS and the AGC, Justice See said that there are three markers that indicate if a tort of misfeasance in public office had taken place, namely:
- If the act is done with malicious intent or with the knowledge that carrying out the act is ultra vires — going beyond the scope or authority — of the public body’s powers;
- If damage to the plaintiffs as a result of the act is foreseeable; and
- If the act actually causes damage to the plaintiffs.
Both the SPS and AGC, he observed, in this case, are “in a position to know the extent of damage” that could possibly be suffered by the applicants as a result of the SPS forwarding the inmates’ correspondence to the AGC.
Even the AG, Justice See noted, did not dispute how there can be a cause of action for misfeasance in public office.
However, the judge reasoned that it is debatable whether the applicants had shown that an actionable duty of care exists in relation to their contemplated claims against the AG, its agents or officers.
Referencing English case law, Justice See noted that the tort of misfeasance in public office was “not actionable without proof of material damage, notwithstanding the fact that several of the prison officers were found to have acted in bad faith”.
Even if it is accepted that the applicants did not have any evidence of malice or knowledge that the act was ultra vires on the part of the AG or its officers, it would not prevent the applicants from bringing a claim against the AG or asking for the discovery of relevant information after the proceedings begin, he added.
Justice See reiterated that information obtained in pre-action discovery is to enable applicants to formulate their pleadings, not to allow them to determine their chance of success during the proceedings.
Touching on statutory duty, the judge reasoned that it is “not in question” as to whether there was a breach of the relevant provisions in the Prisons Act and the Regulations.
However, a private right to bring an action for instances where an officer of a public body had been in breach of their statutory duty is a question that has “yet to be determined by the courts”, he stressed.
Justice See said that in his view, it is neither necessary nor useful for the applicants to establish “the identities of involved public officers or their purported intentions in their confidential communications” when substantiating their claim that “a private law cause of action” exists in their case against the SPS and AGC.
“In any event, (the applicants) have already been furnished with all the relevant documents and correspondence which had been transmitted to the AGC,” he added.
While the Court of Appeal held in TV Media Pte Ltd v De Cruz Andrea Heidi and another appeal that a government body could possibly be held liable in negligence for breach of its statutory duties, Justice See reasoned that the weight of the common law authorities “suggests that a duty owed to the public at large does not extend to a private law duty of care owed to individual members of the public”.
Justice See also ruled that while he accepts the applicants’ position that the matters at hand involve questions as to the proper administration of justice, due process and wider public interest, the “proper forum” for the disciplinary proceedings alluded to by the applicants is the Law Society’s Disciplinary Tribunal (DT).
This is because the applicants’ respective trials and appeals “have been heard and concluded before the appropriate fora”, and not in a case where the matter had yet to be litigated, he added.
Through the DT, the inmates “may potentially have a cause of action against the Government through a civil action filed against the AG”, said Justice See.
The death sentence will resume at any time for the applicants in this case, as the matter has concluded.
The inmates’ lawyer, M Ravi said in a Facebook post today that his clients were ordered to pay S$10 in costs.
Background on the application
The legal challenge mounted by the 22 inmates concerned their confidential letters, which were allegedly being forwarded by Changi Prison to prosecutors in the AGC in breach of prison regulations.
The inmates then applied 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 AG and the Changi Prison Superintendent.
Mr Ravi in a Facebook post on 16 January alleged that the Deputy AG 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 AG 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 AG was represented by Senior Counsel Tan Chee Meng and a team of lawyers from Wong Partnership.
The Changi Prison Superintendent was represented by Senior Counsel Abraham Vergis and his team.