Case Details
- Title: Gaiyathiri d/o Murugayan v Public Prosecutor
- Citation: [2022] SGCA 53
- Court: Court of Appeal of the Republic of Singapore
- Court Type: Criminal Motion (CM)
- Criminal Motion No: Criminal Motion No 3 of 2022
- Date of Decision: 15 July 2022
- Date of Hearing: 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: Post-dismissal costs motion; court considered whether to order personal costs against former defence counsel
- Legal Areas: Criminal procedure; costs; compensation; professional conduct of counsel
- Statutes Referenced: Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) (contextual reference)
- Key Prior Decision in Same Matter: Gaiyathiri d/o Murugayan v Public Prosecutor [2022] SGCA 38
- Other Cases Cited: 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 (as provided)
Summary
In Gaiyathiri d/o Murugayan v Public Prosecutor ([2022] SGCA 53), the Court of Appeal dealt with a narrow but important question: whether the court should order a personal costs (and/or compensation) order against former defence counsel for filing and pursuing an unsuccessful criminal motion. The applicant’s underlying motion had already been dismissed in an earlier decision, Gaiyathiri d/o Murugayan v Public Prosecutor ([2022] SGCA 38). After dismissing the motion, the court directed further submissions on whether counsel should personally bear costs incurred by the prosecution.
The Court of Appeal ultimately held that a personal costs order was warranted. It found that counsel’s conduct fell below the standard expected of reasonable defence counsel and was improper, unreasonable, and negligent in the relevant sense. The court emphasised that counsel facilitated the filing of a “hopeless” application—particularly parts seeking discovery and further psychiatric evidence—despite being, on the court’s view, obviously bound to fail. The court also rejected counsel’s attempt to justify the motion by reference to good faith, impecuniosity, and the possibility of a Newton hearing.
What Were the Facts of This Case?
The case arose from criminal proceedings in which the applicant, Gaiyathiri d/o Murugayan, had pleaded guilty to drug-related offences. For the purposes of her 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 part of the evidential and procedural foundation for the plea.
After the guilty plea, the applicant filed Criminal Motion No 3 of 2022 (“CM 3”) seeking, among other things, (i) discovery of certain materials, (ii) leave to adduce a further psychiatric report by another psychiatrist, Dr Jacob Rajesh (“Dr Rajesh”), and (iii) related procedural reliefs including a Newton hearing. The motion was heard on 4 May 2022. In an ex tempore decision delivered earlier, the Court of Appeal dismissed CM 3 in its entirety in Gaiyathiri d/o Murugayan v Public Prosecutor ([2022] SGCA 38). The court then directed that written submissions be tendered on whether personal costs should be ordered against the applicant’s former counsel, Mr Joseph Chen (“Mr Chen”), and, if so, the quantum.
At the costs stage, the prosecution sought a personal costs order against Mr Chen, contending that the motion had been improperly pursued and had caused unnecessary costs. The Court of Appeal considered submissions from both sides. Mr Chen initially indicated he wished to make oral submissions but later agreed that the court could decide the issue without an oral hearing. He also raised additional points in correspondence, which the prosecution addressed in its own correspondence.
The Court of Appeal’s analysis focused on the content and structure of CM 3 and the circumstances surrounding the evidence sought. In particular, it scrutinised whether the discovery prayers were legally and factually sustainable, whether the further psychiatric report by Dr Rajesh existed and was properly before the court, and whether the Newton hearing request could be justified given the evidential posture. The court’s findings were grounded in the apparent absence of a basis for the reliefs sought and in the way the prayers in CM 3 were framed against the prosecution and/or prison authorities.
What Were the Key Legal Issues?
The primary legal issue was whether the Court of Appeal should exercise its power to make a personal costs order against defence counsel. This required the court to apply established principles governing personal costs orders in criminal proceedings, particularly where the prosecution seeks to shift costs to counsel rather than the accused.
More specifically, the court had to determine: (a) whether counsel had acted “improperly, unreasonably or negligently”; (b) whether such conduct caused the other party (the prosecution) 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 elements were drawn from the Court of Appeal’s earlier jurisprudence, notably Syed Suhail bin Syed Zin v Public Prosecutor ([2021] 2 SLR 377).
A secondary issue concerned the relevance of counsel’s asserted good faith and his reliance on precedent where personal costs were declined. Mr Chen argued that he believed the reliefs sought were not bound to fail and relied on Abdul Kahar bin Othman v Public Prosecutor ([2018] 2 SLR 1394), where the court declined to make a personal costs order because counsel had believed in good faith (though mistakenly) that a challenge was not bound to fail. The Court of Appeal therefore had to assess whether counsel’s conduct in the present case was comparable to that scenario or instead fell within the category of cases where personal costs are appropriate.
How Did the Court Analyse the Issues?
The Court of Appeal began by restating the governing legal framework. It referred to the principles in Syed Suhail, which articulate a structured inquiry: the court first assesses counsel’s conduct (improper, unreasonable, or negligent), then links that conduct to unnecessary costs incurred by the other party, and finally considers whether a personal costs order is just in all the circumstances. The court also relied on Bintai Kindenko Pte Ltd v Samsung C&T Corp ([2018] 2 SLR 532) for an illustrative situation where personal costs may be appropriate—namely, where a 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 of Appeal concluded that Mr Chen’s conduct fell short of what reasonable defence counsel should do. The court characterised the discovery component of CM 3 as patently unmeritorious. It noted that, as explained in the earlier dismissal decision (SGCA 38 at [12]–[17]), there was no legal or factual basis for the court to order disclosure of the materials sought. This was not merely a case of losing on a close point; rather, the court viewed the discovery prayers as lacking a foundation from the outset.
Crucially, the Court of Appeal found that Mr Chen would have known the discovery part was bound to fail because the materials sought were not in the possession of the prosecution. The applicant herself, the court observed, implicitly recognised that most (if not all) of the materials were in the possession of the Singapore Prison Service (“SPS”). That recognition, in the court’s view, should have made it clear that any request for SPS-held documents would need to be directed to the SPS rather than the prosecution. Mr Chen’s explanation—that he genuinely thought the prosecution could act as a conduit—was rejected as inconsistent with the prayers in CM 3.
The court analysed the wording of the prayers to infer counsel’s understanding. Prayer 2 was specifically directed at “the Prison Authorities” for the discovery of the applicant’s children’s medical records from their private paediatrician. Prayer 1 sought discovery of other materials as against the respondent “and/or the Prison Authorities”. The Court of Appeal treated this drafting as demonstrating that counsel recognised the prosecution and the SPS as distinct entities. Therefore, counsel could not credibly claim he did not appreciate that SPS-held materials would have to be obtained directly from the SPS. The court treated the only plausible explanation as that counsel had identified the SPS as a target party because he had already recognised the relevant possession issue.
Beyond the discovery component, the Court of Appeal found the application to adduce a further psychiatric report by Dr Rajesh to be even more problematic. The court noted the context: for the guilty plea, Dr Yeo’s assessment was agreed to reflect the applicant’s mental state at the time of the offences. CM 3 sought to adduce a further report in which Dr Rajesh allegedly disagreed with Dr Yeo. The Court of Appeal observed that, leaving aside the merits (which it had already flagged as doubtful in SGCA 38 at [22]), it was clear that the application was bound to fail because the alleged further report had not even been put before the court and there was no basis for consideration.
Mr Chen attempted to justify proceeding despite the absence of the report by asserting, for the first time in his written submissions urging the court not to impose a personal costs order, that the applicant’s impecuniosity prevented her from obtaining the 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. Proceeding in those circumstances, the court held, was improper and unreasonable. It described the application as a waste of the court’s time and an encumbrance with a hopeless request.
The court further rejected the impecuniosity explanation for evidential and procedural reasons. It found no evidence supporting the claim. It also noted that Mr Chen 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 he never informed the court that the applicant faced difficulty obtaining the report. The Court of Appeal reasoned that even if the applicant had been unable to obtain the report, that would not excuse counsel’s failure to seek directions or ensure that CM 3 proceeded to hearing only when the relevant materials were available. Indeed, the court suggested that proceeding without the report would have disserved the client by undermining the motion’s evidential basis.
Mr Chen also relied on a Newton hearing rationale. He claimed that the Newton hearing request 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. It reasoned that since Dr Rajesh’s alleged further report had not been put before the court, there could be no meaningful difference between Dr Yeo’s and Dr Rajesh’s assessments for the purpose of a Newton hearing. Accordingly, the Newton hearing component lacked a basis for consideration.
Finally, the Court of Appeal addressed counsel’s reliance on Abdul Kahar. In that earlier case, the court declined to make a personal costs order because counsel had believed in good faith that a constitutional challenge to s 33B of the MDA was not bound to fail. The Court of Appeal distinguished that scenario from the present case. Here, it found that counsel’s conduct was not merely a mistaken belief about the prospects of success; rather, counsel filed and pursued applications that were, on the court’s view, obviously bound to fail and did so without adequate consideration of merits and necessity. The court therefore treated the case as fitting within the category described in Bintai—applications that are utterly ill-conceived and pursued despite counsel “ought to have known better”.
What Was the Outcome?
The Court of Appeal dismissed CM 3 in its entirety in the earlier decision and then, in this costs decision, ordered that personal costs be imposed on Mr Chen. The practical effect was that the prosecution’s costs incurred due to the hopeless and unnecessary aspects of CM 3 would be compensated by counsel personally, rather than being borne solely by the state or absorbed as part of the prosecution’s expenses.
While the provided extract truncates the remainder of the judgment and does not specify the exact quantum in the text shown, the court’s reasoning makes clear that it found the threshold for personal costs satisfied: counsel’s conduct was improper/unreasonable/negligent, it caused unnecessary costs, and it was just in all the circumstances to order counsel to compensate the prosecution for the relevant costs.
Why Does This Case Matter?
This decision is significant for practitioners because it reinforces that personal costs orders against counsel are not confined to extreme misconduct such as fraud or deliberate deception. The court’s approach shows that filing applications that are “patently” unmeritorious, failing to consider whether the evidential prerequisites exist, and proceeding without the necessary materials can amount to improper, unreasonable, or negligent conduct capable of triggering personal costs.
For defence counsel, the case underscores a professional duty to assess the merits and necessity of applications before invoking appellate processes. The court’s scrutiny of the drafting of prayers (including whether documents were sought from the prosecution or prison authorities) illustrates that courts will infer counsel’s understanding from the way relief is framed. Counsel cannot rely on after-the-fact explanations that contradict the structure of the motion.
For prosecutors and litigators, the case provides a roadmap for seeking personal costs orders. It demonstrates the importance of linking counsel’s conduct to unnecessary costs and of grounding the request in established principles from Syed Suhail and the illustrative guidance from Bintai. It also clarifies that good faith, while relevant, will not protect counsel where the application is hopeless on its face or where counsel proceeds despite the absence of essential evidential material.
Legislation Referenced
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) — referenced in the context of Abdul Kahar and constitutional/interpretive arguments relating to s 33B
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.