Case Details
- Citation: [2022] SGCA 53
- Title: Gaiyathiri d/o Murugayan v Public Prosecutor
- Court: Court of Appeal of the Republic of Singapore
- Case Number: Criminal Motion No 3 of 2022
- Date of Judgment: 15 July 2022
- Date of Hearing (CM 3): 4 May 2022
- Judges: Andrew Phang Boon Leong JCA, Judith Prakash JCA, Steven Chong JCA
- Applicant: Gaiyathiri d/o Murugayan
- Respondent: Public Prosecutor
- Procedural Posture: Criminal motion following an earlier dismissal of CM 3 in ex tempore reasons; further decision on whether to order personal costs against former defence counsel
- Legal Areas: Criminal Procedure and Sentencing; Costs; Professional conduct of defence counsel
- Statutes Referenced: Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) — referenced in relation to the earlier decision and counsel’s reliance on it
- Other Key References: Syed Suhail bin Syed Zin v Public Prosecutor [2021] 2 SLR 377; Bintai Kindenko Pte Ltd v Samsung C&T Corp [2018] 2 SLR 532
- Cases Cited: [2022] SGCA 38; [2022] SGCA 53; Syed Suhail bin Syed Zin v Public Prosecutor [2021] 2 SLR 377; Bintai Kindenko Pte Ltd v Samsung C&T Corp [2018] 2 SLR 532; Abdul Kahar bin Othman v Public Prosecutor [2018] 2 SLR 1394
- Judgment Length: 10 pages; 3,019 words
Summary
In Gaiyathiri d/o Murugayan v Public Prosecutor ([2022] SGCA 53), the Court of Appeal dealt with a discrete but important procedural question: whether the court should order a personal costs order against former defence counsel, Mr Joseph Chen, after dismissing the applicant’s Criminal Motion No 3 of 2022 (“CM 3”) in its entirety. The court had earlier dismissed CM 3 and, in an ex tempore judgment, directed that written submissions be tendered on whether personal costs should be ordered against counsel and, if so, in what quantum.
Delivering the decision on 15 July 2022, the Court of Appeal held that the threshold for personal costs was met. Applying established principles from Syed Suhail and the illustrative guidance in Bintai Kindenko, the court concluded that counsel’s conduct fell below the standard expected of reasonable defence counsel. In particular, CM 3’s discovery application was “patently unmeritorious” and the application to adduce further psychiatric evidence was procedurally and substantively hopeless because the alleged further report had not been put before the court and lacked a proper basis for consideration.
What Were the Facts of This Case?
The applicant, Gaiyathiri d/o Murugayan, was involved in criminal proceedings in which she ultimately entered a guilty plea. For the purposes of that guilty plea, the Prosecution and Defence agreed that a psychiatric assessment by Dr Derrick Yeo (“Dr Yeo”) would be taken as reflective of the applicant’s mental state at the time she committed the offences. This agreement formed the evidential foundation for the sentencing-related psychiatric position adopted by both sides.
After the guilty plea, the applicant filed CM 3. Although the full details of CM 3 are contained in the earlier decision Gaiyathiri d/o Murugayan v Public Prosecutor ([2022] SGCA 38), the present judgment focuses on the parts of CM 3 that were central to the later costs dispute. CM 3 included, first, an application for discovery of materials that were sought from the respondent and/or the Prison Authorities. Second, CM 3 sought leave to adduce a further psychiatric report by Dr Jacob Rajesh (“Dr Rajesh”) as further evidence, apparently to challenge or depart from Dr Yeo’s assessment.
At the hearing of CM 3 on 4 May 2022, the Court of Appeal dismissed CM 3 in its entirety. In the ex tempore judgment, the court did not immediately decide the costs question against counsel. Instead, it directed that both counsel and the Prosecution tender written submissions on whether a personal costs order should be made against Mr Chen and, if so, the quantum. This procedural step reflected the court’s recognition that personal costs orders are exceptional and must be justified by the relevant legal criteria.
Following the dismissal, the respondent sought personal costs against Mr Chen, arguing that his conduct in filing CM 3 was improper and caused the respondent to incur unnecessary costs. Mr Chen initially indicated that he wished to make oral submissions on the costs issue, but later informed the court that he was agreeable to the court deciding the issue without an oral hearing. He nonetheless raised additional points in correspondence, which the respondent addressed in its own subsequent correspondence. The Court of Appeal then delivered its decision on the personal costs question.
What Were the Key Legal Issues?
The primary legal issue was whether the Court of Appeal should exercise its powers to make a personal costs order against defence counsel. Personal costs orders are not automatic consequences of losing an application. They require a careful assessment of counsel’s conduct and the causal link between that conduct and the other party’s costs.
In particular, the court had to determine: (a) whether counsel acted “improperly, unreasonably or negligently”; (b) if so, whether such conduct caused the other party to incur “unnecessary costs”; and (c) whether it was “in all the circumstances just” to order counsel to compensate the other party for the whole or any part of the costs incurred. These criteria were drawn from Syed Suhail bin Syed Zin v Public Prosecutor ([2021] 2 SLR 377) at [19].
A related issue was how to evaluate counsel’s good faith and belief in the merits of the application. Mr Chen argued that he acted in good faith and genuinely believed the reliefs in CM 3 would be granted, relying on Abdul Kahar bin Othman v Public Prosecutor ([2018] 2 SLR 1394), where the court declined to make a personal costs order because counsel believed in good faith (though mistakenly) that a challenge was not bound to fail. The Court of Appeal therefore also had to assess whether Mr Chen’s reliance on Abdul Kahar was apt given the nature of the defects in CM 3.
How Did the Court Analyse the Issues?
The Court of Appeal began by restating the applicable legal principles governing personal costs orders against defence counsel. It emphasised that the court considers not only whether counsel’s application failed, but whether counsel’s conduct crossed into impropriety, unreasonableness, or negligence, and whether that conduct led to unnecessary costs. The court also referenced the approach in Bintai Kindenko ([2018] 2 SLR 532), where it was observed that personal costs may be appropriate 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 the client against such a course.
Applying these principles, the court concluded that Mr Chen’s conduct in filing CM 3 was improper and fell short of what reasonable defence counsel would do. The court’s reasoning was anchored in the view that CM 3’s discovery component was “patently unmeritorious” and lacked any legal or factual basis for the disclosure sought. The court referred to its earlier explanation in Gaiyathiri d/o Murugayan v Public Prosecutor ([2022] SGCA 38) at [12]–[17], underscoring that there was no foundation upon which the court could have ordered the disclosure requested.
More critically, the Court of Appeal found that counsel would have known the discovery application was bound to fail. The court reasoned that none of the materials sought for discovery were in the possession of the respondent. The applicant herself implicitly recognised this in her supporting affidavit for CM 3, which indicated that most (if not all) of the materials were in the possession of the Singapore Prison Service (“SPS”). This factual premise, in the court’s view, should have made the discovery prayers unsustainable because the respondent could not be compelled to disclose documents it did not hold.
Mr Chen’s explanation—that he did not consider that requests should have been made directly to the SPS and that he thought the respondent could act as a conduit—was rejected by the court as inconsistent with the structure of the prayers in CM 3. The court pointed out that prayer 2 sought discovery of the applicant’s children’s medical records from their private paediatrician directed at “the Prison Authorities”, while prayer 1 sought discovery of other materials as against the respondent “and/or the Prison Authorities”. The court treated this as evidence that counsel recognised the respondent and the SPS as distinct entities. If counsel recognised that distinction, the court held, he must also have recognised that SPS-held materials would have to be obtained directly from SPS rather than through the respondent.
The court further inferred that counsel likely did not meaningfully consider the merits or necessity of the discovery component before filing. It noted that the applicant had access to her children’s medical records from their private paediatrician and had annexed them to her reply affidavit for CM 3. The SPS had also facilitated the applicant’s request for those medical records as early as 21 August 2021, with the private paediatrician providing the reports on 5 October 2021 and the SPS issuing them to the applicant. The court treated these facts as strongly indicative that the discovery application was not only legally weak but also practically unnecessary, suggesting a failure to assess whether the court’s processes were being invoked for a purpose that could realistically succeed.
The court’s criticism was even more pointed regarding the psychiatric evidence component. CM 3 sought leave to adduce a further psychiatric report by Dr Rajesh. The court observed that, leaving aside the merits (which it had already noted were doubtful), it would have been clear to counsel from the outset that this part was bound to fail because the alleged further report had not even been put before the court and there was no basis on which the court could consider the application. In other words, the procedural prerequisites for the court to evaluate the proposed further evidence were absent.
Mr Chen attempted to justify proceeding without the report by asserting, for the first time in his written submissions on the costs issue, that the applicant’s impecuniosity had prevented her from obtaining the alleged further report and putting it before the court. The Court of Appeal treated this as an implicit acceptance that the report did not exist up to the hearing of CM 3 on 4 May 2022. Proceeding in those circumstances, the court held, was improper and unreasonable because it encumbered the court with a hopeless application that wasted time.
Additionally, the court found no evidence supporting the impecuniosity explanation. It noted that counsel had informed the court as early as October 2021 that the applicant was seeking leave to adduce a further psychiatric report and that arrangements were being made to obtain it. Yet counsel never informed the court that the applicant faced difficulty obtaining the report. The court reasoned that even if the applicant’s impecuniosity were true, it would not excuse counsel’s failure to seek directions or to ensure that CM 3 proceeded to hearing only when the relevant materials were actually available. Indeed, the court suggested that failing to do so would have disserved the client.
Mr Chen also argued that a Newton hearing was justified because the applicant wanted to know whether such a hearing could be convened notwithstanding the agreement between Prosecution and Defence to adopt Dr Yeo’s assessment. The Court of Appeal rejected this as well, reasoning that because the alleged further report by Dr Rajesh had not been put before the court, there could be no meaningful difference between Dr Yeo’s and Dr Rajesh’s assessments to justify a Newton hearing or any further evidential inquiry.
Finally, the court addressed Mr Chen’s reliance on Abdul Kahar. In Abdul Kahar, the court declined to make a personal costs order because counsel believed in good faith (though mistakenly) that a constitutional challenge was not bound to fail. The Court of Appeal distinguished the present case. Here, the court found counsel’s conduct to be not merely mistaken but inconsistent with reasonable professional standards: counsel filed applications that were patently unmeritorious, failed to consider key factual constraints, and proceeded with an application for further psychiatric evidence without the report itself. The court therefore concluded that good faith was not a sufficient answer to conduct that was “utterly ill-conceived” and improper in the relevant sense.
What Was the Outcome?
The Court of Appeal dismissed CM 3 earlier and, in this decision, upheld the respondent’s application for a personal costs order against Mr Chen. The practical effect of the decision is that the costs consequences of an unsuccessful and procedurally defective motion were shifted away from the applicant and onto counsel personally, reflecting the court’s view that counsel’s conduct caused unnecessary costs and wasted judicial resources.
While the excerpt provided does not include the precise quantum and formal order language, the court’s reasoning makes clear that it found the legal threshold for personal costs to be satisfied and considered it “in all the circumstances just” to order counsel to compensate the respondent for the costs incurred in relation to CM 3.
Why Does This Case Matter?
This case is significant for criminal practitioners because it reinforces that personal costs orders can be imposed on defence counsel where applications are not merely weak but are filed in circumstances showing a serious lapse in professional judgment. The Court of Appeal’s analysis illustrates that “good faith” will not protect counsel where the application is patently unmeritorious, where counsel should have known better based on readily apparent factual constraints, or where procedural prerequisites are ignored.
For lawyers, the decision provides a practical checklist of the kinds of conduct that may trigger personal costs: failing to consider the merits before filing; advancing discovery or evidential applications that are structurally unsustainable; proceeding to hearing without the necessary materials; and failing to seek directions when obstacles arise. The court’s emphasis on counsel’s duty to assess necessity and feasibility before invoking court processes is particularly relevant in motions involving evidence and disclosure.
From a precedent perspective, Gaiyathiri builds on Syed Suhail and Bintai Kindenko by applying those principles to a criminal motion context. It also clarifies the limits of Abdul Kahar: where counsel’s belief is not simply mistaken on a legal point but is accompanied by procedural and factual disregard, the court is willing to impose personal costs. Practitioners should therefore treat the decision as a warning that the court will scrutinise counsel’s conduct closely, especially where the motion’s defects are obvious and the resulting costs are unnecessary.
Legislation Referenced
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — referenced in relation to the earlier decision and counsel’s reliance on Abdul Kahar
Cases Cited
- Gaiyathiri d/o Murugayan v Public Prosecutor [2022] SGCA 38
- Gaiyathiri d/o Murugayan v Public Prosecutor [2022] SGCA 53
- Syed Suhail bin Syed Zin v Public Prosecutor [2021] 2 SLR 377
- Bintai Kindenko Pte Ltd v Samsung C&T Corp [2018] 2 SLR 532
- Abdul Kahar bin Othman v Public Prosecutor [2018] 2 SLR 1394
Source Documents
This article analyses [2022] SGCA 53 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.