Case Details
- Title: Gaiyathiri d/o Murugayan v Public Prosecutor
- Citation: [2022] SGCA 53
- Court: Court of Appeal of the Republic of Singapore
- Case Type: Criminal Motion No 3 of 2022
- Date of Judgment: 15 July 2022
- Judges: Andrew Phang Boon Leong JCA, Judith Prakash JCA, Steven Chong JCA
- Applicant/Defendant: Gaiyathiri d/o Murugayan
- Respondent/Prosecution: Public Prosecutor
- Procedural Posture: Decision on whether the Court should order personal costs against former defence counsel following dismissal of the applicant’s criminal motion
- Key Legal Areas: Criminal procedure; costs; compensation and costs orders against counsel
- Statutes Referenced: Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) (contextual reference); Misuse of Drugs Act provisions concerning psychiatric evidence and/or sentencing framework (as discussed in related motion and cited authority)
- Other Authorities / Legal Principles: Personal costs orders against defence counsel; “unnecessary costs” and whether it is “in all the circumstances just” to order counsel to compensate
- 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; Gaiyathiri d/o Murugayan v Public Prosecutor [2022] SGCA 38
- Judgment Length: 10 pages; 3,019 words
Summary
This Court of Appeal decision concerns a narrow but important procedural question: whether the Court should order a personal costs (or compensation) order against former defence counsel after dismissing a criminal motion filed on the applicant’s behalf. The applicant, Gaiyathiri d/o Murugayan, had previously brought Criminal Motion No 3 of 2022 (“CM 3”). In an earlier ex tempore judgment, the Court dismissed CM 3 in its entirety. The Public Prosecutor then sought a personal costs order against the applicant’s former counsel, Mr Joseph Chen (“Mr Chen”), on the basis that counsel’s conduct in filing and pursuing CM 3 was improper and caused the prosecution to incur unnecessary costs.
In the present judgment, the Court of Appeal set out the governing principles for personal costs orders against defence counsel and applied them to the facts. The Court held that Mr Chen’s conduct fell short of what reasonable defence counsel should do and was “improper” in the relevant sense. The Court found that key parts of CM 3 were patently unmeritorious and bound to fail, including an application for discovery where the materials sought were not in the respondent’s possession and an application to adduce further psychiatric evidence where the alleged report had not even been put before the Court. The Court therefore proceeded to make a personal costs order against Mr Chen (including directions on the quantum and payment mechanism, as foreshadowed by the Court’s earlier directions).
Although the substantive criminal motion concerned psychiatric evidence and related procedural mechanisms, the Court’s focus in this decision was on professional responsibility and the proper use of court processes. The judgment underscores that good faith is not a sufficient shield where counsel should have appreciated that the application was hopeless, unnecessary, or procedurally misconceived.
What Were the Facts of This Case?
The applicant, Gaiyathiri d/o Murugayan, had been convicted and, 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 her mental state at the time she committed the offences. The Court’s earlier judgment in the same matter (Gaiyathiri d/o Murugayan v Public Prosecutor [2022] SGCA 38) explained the background and dismissed CM 3 in its entirety. The present decision assumes familiarity with that earlier dismissal and concentrates on the costs consequences.
CM 3, filed by the applicant through Mr Chen, sought multiple forms of relief. Two aspects became central to the Court of Appeal’s assessment of counsel’s conduct. First, CM 3 included a discovery component seeking disclosure of various materials, including the applicant’s children’s medical records. Second, CM 3 sought leave to adduce a psychiatric report by another psychiatrist, Dr Jacob Rajesh (“Dr Rajesh”), as further evidence. The applicant’s theory was that Dr Rajesh’s report would disagree with Dr Yeo’s assessment of her psychiatric condition.
At the hearing of CM 3 on 4 May 2022, the Public Prosecutor applied for a personal costs order against Mr Chen. After the Court dismissed CM 3 in an ex tempore judgment, it directed that both Mr Chen and the respondent tender written submissions on whether a personal costs order should be made and, if so, the quantum. The Court then invited Mr Chen to make oral submissions. Mr Chen initially indicated he wished to do so but later agreed that the Court could decide the issue without an oral hearing, while still raising additional points in correspondence.
In the costs decision, the Court examined the merits of the discovery and further evidence components, not to revisit the correctness of the dismissal, but to determine whether counsel’s conduct in filing and pursuing those components was improper, unreasonable, or negligent, and whether it caused the other party to incur unnecessary costs. The Court’s reasoning drew heavily on what counsel should have known at the time of filing, including whether the materials sought were within the respondent’s possession and whether the alleged further psychiatric report existed and had been placed before the Court.
What Were the Key Legal Issues?
The primary legal issue was whether the Court should exercise its power to make a personal costs order against defence counsel. This required the Court to consider whether counsel had acted “improperly, unreasonably or negligently”, whether such conduct caused the other party to incur “unnecessary costs”, and 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.
A secondary issue was the relevance of counsel’s asserted good faith. Mr Chen argued that he believed the reliefs prayed for in CM 3 would be granted and relied on the Court of Appeal’s approach in 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 therefore had to assess whether Mr Chen’s conduct was comparable to a genuine, arguable mistake, or instead reflected a failure to consider merits and a willingness to invoke court processes for hopeless applications.
Finally, the Court had to determine the practical link between counsel’s conduct and the costs incurred by the prosecution. The Court’s analysis of the discovery and psychiatric report components was therefore directed at whether the applications were “obviously bound to fail” and whether counsel should have appreciated that the Court could not grant the relief sought on the materials available.
How Did the Court Analyse the Issues?
The Court began by restating the applicable legal principles. It referred to its earlier decision in Syed Suhail bin Syed Zin v Public Prosecutor [2021] 2 SLR 377 at [19], which sets out the structured inquiry for personal costs orders against counsel. The Court also relied on Bintai Kindenko Pte Ltd v Samsung C&T Corp [2018] 2 SLR 532, particularly the proposition that personal costs may be appropriate 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 those principles, the Court held that Mr Chen’s conduct in filing CM 3 fell below the standard expected of reasonable defence counsel and would be regarded as improper according to professional consensus. The Court’s reasoning was anchored in the discovery component. It found that the discovery sought was “patently unmeritorious” and that there was no legal or factual basis for the Court to order disclosure of the materials sought. The Court emphasised that it had already explained in the earlier judgment why disclosure could not be ordered (referring to the earlier decision at [12]–[17]).
More critically, the Court found that Mr Chen would have known the discovery application was bound to fail because the materials sought were not in the respondent’s possession. The applicant herself implicitly recognised this in her supporting affidavit for CM 3, acknowledging that most (if not all) of the materials were in the possession of the Singapore Prison Service (“SPS”). The Court rejected Mr Chen’s explanation that he believed the respondent could act as a conduit between the applicant and SPS. The Court pointed to the prayers in CM 3: prayer 2 was specifically directed at “the Prison Authorities” for the children’s medical records, while prayer 1 sought disclosure of other materials as against the respondent “and/or the Prison Authorities”. This drafting, the Court reasoned, demonstrated that counsel recognised the respondent and SPS as distinct entities and therefore should have known that any SPS-held materials would have to be obtained directly from SPS, not via the respondent.
The Court further inferred that counsel likely did not consider the merits or necessity of the discovery requests. 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 already facilitated the applicant’s request for those medical records, and the private paediatrician had provided the reports, which the SPS then issued to the applicant. Neither the applicant nor Mr Chen disputed these facts. The Court treated this as indicative that counsel had not assessed whether discovery was necessary before filing CM 3 on 25 January 2022.
The Court’s analysis was even more emphatic regarding the application to adduce a psychiatric report by Dr Rajesh. The Court observed that, 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 leave to adduce a further report by Dr Rajesh purportedly disagreeing with Dr Yeo. The Court noted that, leaving aside the doubtful merits of the application (as discussed in the earlier judgment at [22]), it would have been clear to Mr Chen 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 for the Court to consider the application.
Mr Chen’s subsequent submissions attempted to explain the absence of the report by asserting, for the first time, that the applicant’s impecuniosity prevented her from obtaining the report and putting it before the Court. The Court treated this as an implicit acceptance that the report did not exist up to the hearing on 4 May 2022. By proceeding with the application despite the absence of the report, counsel acted improperly and unreasonably, encumbering the Court with a hopeless application and wasting the Court’s time.
The Court also rejected the impecuniosity explanation for lack of evidence. It 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 in obtaining the report. The Court held 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 been a disservice to 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 dismissed this argument as lacking foundation because Dr Rajesh’s alleged report had not been put before the Court; therefore, there was no meaningful difference between Dr Yeo and Dr Rajesh that could justify a Newton Hearing.
On the “good faith” argument, the Court addressed Abdul Kahar. In Abdul Kahar, 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, even though it ultimately did not succeed. The Court distinguished that scenario from the present case. Here, the Court found not a mistaken but arguable legal position, but a failure to consider merits and a willingness to file applications that were obviously bound to fail. The Court therefore concluded that reliance on Abdul Kahar was misplaced.
What Was the Outcome?
The Court of Appeal dismissed the application for personal costs in the sense that it had already dismissed CM 3; however, in this costs decision, it granted the Public Prosecutor’s application for a personal costs order against Mr Chen. The Court’s reasoning made clear that counsel’s conduct in filing and pursuing the discovery and further psychiatric evidence applications was improper and unreasonable, and that it caused the prosecution to incur unnecessary costs.
Practically, the effect of the decision is that the applicant’s former counsel, rather than the applicant, bears responsibility for the costs consequences of the hopeless and unnecessary aspects of CM 3. The Court’s earlier directions requiring submissions on quantum were part of ensuring that any order for compensation was properly quantified and tailored to the circumstances.
Why Does This Case Matter?
This case is significant for practitioners because it clarifies the threshold for personal costs orders against defence counsel in Singapore criminal proceedings. While courts generally expect parties to bear their own costs, the Court of Appeal has recognised that personal costs may be appropriate where counsel’s conduct is improper, unreasonable, or negligent, and where it results in unnecessary costs being incurred by the other side. The judgment reinforces that the Court will look beyond formal good faith assertions and examine whether counsel should have appreciated that an application was bound to fail.
For lawyers, the decision provides concrete examples of conduct that can trigger personal costs: filing discovery applications without a legal or factual basis, pursuing requests where the sought materials are not in the respondent’s possession, and advancing applications for further evidence without ensuring that the evidence exists and is before the Court. The Court’s emphasis on what counsel “would have known” at the time of filing is particularly instructive for case management and professional responsibility.
From a precedent perspective, the decision sits within a line of authority (Syed Suhail; Bintai Kindenko; Abdul Kahar) that balances two competing concerns: protecting access to justice and discouraging abuse of court processes. The Court’s approach suggests that Abdul Kahar-type protection for good faith is limited to situations involving genuinely arguable legal issues, not to procedural or evidential deficiencies that counsel should have addressed before invoking the Court’s processes.
Legislation Referenced
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) — referenced in the context of constitutional and interpretive issues discussed in Abdul Kahar bin Othman v Public Prosecutor [2018] 2 SLR 1394
Cases Cited
- Gaiyathiri d/o Murugayan v Public Prosecutor [2022] SGCA 38
- 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.