In the COURT OF APPEAL of the republic of singapore
[2022] SGCA 44
Civil Appeal No 61 of 2021
Between
Nagaenthran a/l K Dharmalingam… Appellant |
And
Attorney-General… Respondent |
In the matter of Originating Summons No 1109 of 2021
Between
Nagaenthran a/l K Dharmalingam… Plaintiff |
And
Attorney-General… Defendant |
Criminal Motion No 30 of 2021
Between
Nagaenthran a/l K Dharmalingam… Applicant |
And
Public Prosecutor… Respondent |
EX TEMPOre Judgment
[Criminal
Procedure and Sentencing — Compensation and costs — Prosecution urging
court to make costs order against defence counsel personally]
[Civil Procedure — Costs — Personal liability of solicitor for costs]
This
judgment is subject to final editorial corrections approved by the
court and/or redaction pursuant to the publisher’s duty in compliance
with the law, for publication in LawNet and/or the Singapore Law
Reports. |
Nagaenthran a/l K DharmalingamvAttorney-General and another matter
[2022] SGCA 44
Court of Appeal — Civil Appeal No 61 of 2021 and Criminal Motion No 30 of 2021
Sundaresh Menon CJ, Andrew Phang Boon Leong JCA, Judith Prakash JCA, Belinda Ang Saw Ean JAD and Chao Hick Tin SJ
25 May 2022
26 May 2022
Sundaresh Menon CJ (delivering the judgment of the court ex tempore):
Introduction
1 On
29 March 2022, the Court of Appeal (“the CA”) dismissed both Civil
Appeal No 61 of 2021 (“CA 61”) and Criminal Motion No 30 of 2021 (“CM
30”) in Nagaenthran a/l K Dharmalingam v Attorney-General and another matter
[2022] SGCA 26 (“the Judgment”). In the Judgment at [70], the CA gave
leave to the parties to raise by notice in writing any question of costs
within seven days of the date of the Judgment. On 12 April 2022, the CA
directed, among other things, that (a) the Attorney-General’s Chambers
(“AGC”) was to file and serve its written submissions on costs by 26
April 2022, and (b) Ms L F Violet Netto (“Ms Netto”) and Mr Ravi s/o
Madasamy (“Mr Ravi”) were to file and serve their reply written
submissions on costs within two weeks from the filing and service of
AGC’s submission on costs.
2 By
way of its written submissions dated 26 April 2022, AGC sought personal
costs orders against both Mr Ravi and Ms Netto as follows:
(a) In respect of CA 61, Mr Ravi and Ms Netto are to be jointly and severally liable for costs of $30,000; and
(b) In respect of CM 30, Mr Ravi and Ms Netto are to be jointly and severally liable for costs of $10,000.
3 On
12 May 2022, Mr Ravi filed a document entitled “Applicant’s Submissions
on Costs”. On the same day, AGC stated that it had no objections to the
late filing of Mr Ravi’s submissions.
In the said document, Mr Ravi
purported to submit, on behalf of Ms Netto and himself, that it is not
just, in all the circumstances, to order personal costs against Ms Netto
and him. Mr Ravi also stated that “a separate consideration should
apply to [Ms Netto]”, though it is not clear what Mr Ravi meant by this.
On 13 May 2022, we directed that (a) Ms Netto was to confirm that the
submissions were filed on her behalf, and (b) Mr Ravi was to state the
basis on which he purported to file the submissions on behalf of Ms
Netto by 18 May 2022. On 18 May 2022, Ms Netto clarified by way of
letter that the submissions were filed in Mr Ravi’s personal capacity
and not on her behalf.
4 At
the hearing before us today, Ms Netto appeared some ten minutes or so
after we had started the proceedings. Shortly before the hearing, she
had tendered a medical certificate which was not valid for excusing the
subject of the certificate from attendance in court. This was issued
yesterday but for unknown reasons was only advanced today. In any event,
she made it clear she was not requesting an adjournment and said only
that she was associating herself with Mr Ravi’s position.
Our decision
5 In our judgment, this is an appropriate case in which personal costs orders ought to be made against both Mr Ravi and Ms Netto.
6 We begin by setting out the legal principles pertaining to personal costs orders against counsel.
7 For CA 61, the relevant provision is O 59 r 8(1)(c)
of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”). This
provision empowers the court to order costs against solicitors
personally where costs have been incurred “unreasonably or improperly”
in any proceedings or have been “wasted by failure to conduct
proceedings with reasonable competence and expedition”. As summarised
most recently by the CA in Munshi Rasal v Enlighten Furniture Decoration Co Pte Ltd [2021] 1 SLR 1277 (“Munshi Rasal”) at [17]:
…
The applicable test in deciding whether to order costs against a
solicitor personally is the three-step test set out by the English Court
of Appeal in Ridehalgh v Horsefield [1994] Ch 205 at 231, which has been endorsed by this court in Tang Liang Hong v Lee Kuan Yew and another and other appeals [1997] 3 SLR(R) 576 at [71] and Ho Kon Kim v Lim Gek Kim Betsy and others and another appeal [2001] 3 SLR(R) 220 at [58]:
(a) Has the legal representative of whom complaint is made acted improperly, unreasonably or negligently?
(b) If so, did such conduct cause the applicant to incur unnecessary costs?
(c)
If so, is it in all the circumstances just to order the legal
representative to compensate the applicant for the whole or any part of
the relevant costs?
8 In relation to CM 30, the court hearing criminal proceedings has the power under s 357(1)(b)
of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) or its
inherent powers to order that defence counsel pay costs directly to the
Prosecution (see the decision of the CA in Abdul Kahar bin Othman v Public Prosecutor [2018] 2 SLR 1394 (“Abdul Kahar”) at [77]–[80]). In Syed Suhail bin Syed Zin v Public Prosecutor [2021] 2 SLR 377 (“Syed Suhail”)
at [16], [18]–[19] and [21], the CA found that the principles developed
in the context of civil cases, which were outlined at [7] above, were
of general application as well, with the ultimate question being whether
it was just in all the circumstances to make such a personal costs
order.
9 The approach to be taken to the words “improperly”, “unreasonably” and “negligently” is as follows (see Syed Suhail at [20], citing Ridehalgh v Horsefield [1994] Ch 205 at 232–233):
‘Improper’
… covers, but is not confined to, conduct which would ordinarily be
held to justify disbarment, striking off, suspension from practice or
other serious professional penalty. It covers any significant breach of a
substantial duty imposed by a relevant code of professional conduct.
But it is not in our judgment limited to that. Conduct which would be
regarded as improper according to the consensus of professional
(including judicial) opinion can be fairly stigmatised as such whether
or not it violates the letter of a professional code.
‘Unreasonable’
… aptly describes conduct which is vexatious, designed to harass the
other side rather than advance the resolution of the case, and it makes
no difference that the conduct is the product of excessive zeal and not
improper motive. But conduct cannot be described as unreasonable simply
because it leads in the event to an unsuccessful result or because other
more cautious legal representatives would have acted differently. The
acid test is whether the conduct permits of a reasonable explanation. If
so, the course adopted may be regarded as optimistic and as reflecting
on a practitioner’s judgment, but it is not unreasonable.
…
…
[The term] ‘negligent’ should be understood in an untechnical way to
denote failure to act with the competence reasonably to be expected of
ordinary members of the profession.
10 In this regard, we note that in Bintai Kindenko Pte Ltd v Samsung C&T Corp [2018] 2 SLR 532 (“Bintai Kindenko”) at
[67], the CA was of the view that one situation where a solicitor may
be regarded as having acted improperly, unreasonably or negligently,
such that a personal costs order pursuant to O 59 r 8(1) of the ROC may
be made, is “where the solicitor advances a wholly disingenuous case or
files utterly ill-conceived applications even though the solicitor ought
to have known better and advised his client against such a course of
action.”
11 We
approach the present matter with those principles in mind.
Specifically, we consider whether Mr Ravi and Ms Netto acted improperly,
unreasonably or negligently by considering the following questions:
(a) Did Mr Ravi and Ms Netto advance arguments which were unsustainable?
(b) Did
Mr Ravi and Ms Netto act in such a manner to frustrate the lawful
process of execution in abuse of the court’s processes?
(c) If so, did such conduct cause AGC to incur unnecessary costs?
(d) If
so, is it in all the circumstances just to order Mr Ravi and Ms Netto
to compensate AGC for the whole or any part of the relevant costs?
12 Turning
to the first question, in the Judgment, we explained in considerable
detail why there was no basis for CA 61 and CM 30. In the Judgment at
[33]–[34], we held there was no admissible evidence showing any decline
in the appellant’s mental condition after the commission of the offence.
In OS 1109, all that was before the court was the bare assertion of Mr
Ravi as to the appellant’s mental age. This evidence was irrelevant and
inadmissible. Mr Ravi himself acknowledged that he had no medical
expertise and it cannot be disputed that his purported opinion appeared
to be based on a single interaction with the appellant over the course
of the last three years, which lasted less than half an hour. In CM 30,
we also explained why Mr Navinkumar’s evidence was wholly unreliable
(see the Judgment at [48]–[50]).
13 These factual weaknesses and problems with the case would have been apparent to any reasonable defence counsel.
14 Mr
Ravi contended that it was because of his lack of medical expertise
that he sought experts overseas to determine the appellant’s medical
condition, but this fails to address the nub of the issue which is that
the proceedings were undertaken when there was no factual basis. Proceedings may not be instituted on the basis of speculation. In any event, we also noted in our judgment that none
of the appellant’s experts had examined or even spoken to the appellant
or had seen the appellant’s present medical reports (see the Judgment
at [54]). Coupled with the evidence of the prison officer in charge of
observing the appellant (see the Judgment at [35] and [50]), we think
that it should have been apparent to any reasonably diligent defence
counsel that CA 61 and CM 30 lacked factual basis. Further, as we also
highlighted in the Judgment at [36]–[37], in so far as there was highly
probative evidence to aid the court’s assessment of the appellant’s
mental condition, objections were mounted on the appellant’s behalf to
prevent the court from accessing that evidence.
15 Mr
Ravi also submitted that novel issues and questions of public
importance were raised, but this is irrelevant without a relevant
substratum of facts to support raising those issues and questions before
the court. In the present case, there is simply no relevant substratum
of facts.
16 Aside
from this, in our Judgment, we had also traced the timeline of events
which led us to find that the proceedings constituted a blatant and
egregious abuse of the court’s processes (see the Judgment at [8]–[24]).
This is not the occasion to repeat all that we have said. But we do
observe, for example, that instead of putting their best case forward at
the first instance, Mr Ravi and Ms Netto each drip-fed the supposed
evidence and arguments. For instance, upon the court declining his
request on 9 November 2021 for an adjournment, Mr Ravi then sought to
file two expert reports dated 5 November 2021 and 7 November 2021
respectively. To date, Mr Ravi has also failed to provide a satisfactory
explanation as to why the evidence of Mr Navinkumar was not provided to
the court earlier when the same could have been provided to the
appellant’s expert days before. As for Ms Netto, no explanation was
provided for her tendering of a speaking note and further expert report
at the last possible moment, during the hearing on 1 March 2022 itself.
As we observed in the Judgment at [24]:
… when every single action on the part of one party is done in a manner that is contrary to the applicable rules and contrary even to basic expectations of fairness to the other party and of courtesy to the court, it becomes difficult to accept that there is an innocent explanation for this. This is heightened when either no explanations are offered, or explanations that are offered are shown to be untrue.
17 In this light, it is simply impossible to contend that the AGC did not incur unnecessary costs.
18 This
leads to the question of whether it is just to make the order. Mr Ravi
first contended that such an order could not be made against a solicitor
who is no longer practising. No authority was cited and we think this
is because it is a plainly bad point. The court imposes a personal costs
order to reprobate the unsatisfactory conduct of counsel appearing
before it. The fact that counsel subsequently ceases or is unable to
practice cannot affect the ability of the court to make such an order.
19 Mr
Ravi also made some general comments and submissions to the effect that
this would constitute a reprisal against the Bar and claimed that both
advocates and forensic psychiatrists were being chilled and discouraged
from taking on engagements to act for accused persons if such orders
were made. With respect, this was a baseless submission. No person,
psychiatrist or lawyer, has a licence to appear before a court and act
improperly; and if the making of an adverse costs order would deter such
conduct, then that is precisely what the power is there for.
20 We
turn finally to the quantum of costs. We have outlined the AGC’s costs
submissions, but we do not accept this as it stands. Although AGC has
referenced the Costs Guidelines and asked for costs of $30,000 for CA 61
which falls at the lower end of those guidelines, and $10,000 for CM
30, we consider that costs orders of $15,000 for CA 61 and $5,000 for CM
30 are appropriate because the facts in this case were not complex (as
can be seen from the short reply affidavits tendered by AGC) and the
applications in CA 61 and CM 30 concerned the same factual matrix and
essentially made very similar arguments, which was in fact a point we
noted in explaining that there was an abuse of process.
21 We
also disagree with AGC’s submission that Mr Ravi and Ms Netto should be
jointly and severally liable for the costs incurred in the proceedings.
AGC does not contend that Ms Netto was involved in the commencement and conduct of CA 61 and CM 30 prior to
17 January 2022. It is not clear then, why she should bear
responsibility or the attendant consequences for actions in which she
played no part. Conversely, for conduct which took place after 17 January 2022, notwithstanding Mr Ravi’s plainly substantial role (such as in
drafting the consolidated submissions and in apparently giving
instructions to Ms Netto throughout the course of the hearing; see the
Judgment at [22]), it was Ms Netto who
was the solicitor on record. In short, and without more, we do not
think that Mr Ravi’s and Ms Netto’s conduct of the proceedings, when
they were each the solicitor on record at different points in time, can
or should be attributable to the other.
22 In
the circumstances, we consider that Mr Ravi and Ms Netto should each be
liable only for the costs incurred and wasted as a result of their
personal conduct during their respective periods acting as the
appellant’s solicitor on record. AGC has provided a breakdown of the
work it undertook for CA 61 and CM 30 and it appears that the majority
of the work undertaken by AGC took place before the change in solicitor,
and is therefore attributable to Mr Ravi’s initiation and conduct of
the proceedings, rather than to Ms Netto’s subsequent continuance of the
proceedings.
23 In all the circumstances, we hold that:
(a) For
CA 61, a costs order of $15,000 is appropriate. Mr Ravi and Ms Netto
should be liable for 75% of the costs ($11,250) and 25% of the costs
($3,750) respectively.
(b) For
CM 30, a costs order of $5,000 is appropriate. Mr Ravi and Ms Netto
should be liable for 75% of the costs ($3,750) and 25% of the costs
($1,250) respectively.
Sundaresh Menon | Andrew Phang Boon Leong Justice of the Court of Appeal |
Judith Prakash | Belinda Ang Saw Ean |
Chao Hick Tin |
The appellant in CA/CA 61/2021 and applicant in CA/CM 30/2021 not in attendance and unrepresented;
Wong
Woon Kwong, Tan Wee Hao and Andre Chong (Attorney-General’s Chambers)
for the respondent in CA/CA 61/2021 and CA/CM 30/2021.
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