Case Details
- Citation: [2022] SGCA 53
- Title: Gaiyathiri d/o Murugayan v Public Prosecutor
- Court: Court of Appeal of the Republic of Singapore
- Case Type: Criminal Motion (CM 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
- Legal Area: Criminal Procedure and Sentencing — Compensation and costs
- Procedural Posture: Determination of whether the Court should order a personal costs order against former defence counsel following dismissal of CM 3
- Prior Related Decision: Gaiyathiri d/o Murugayan v Public Prosecutor [2022] SGCA 38 (ex tempore dismissal of CM 3)
- Key Issue on Appeal/Motion: Whether defence counsel’s conduct in filing CM 3 was improper/unreasonable/negligent and caused unnecessary costs, such that it was “in all the circumstances just” to order counsel personally to compensate the Prosecution
- Statutes Referenced: Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (including s 33B)
- 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, 2,939 words
Summary
This Court of Appeal decision concerns a post-dismissal costs motion: after the Court had dismissed Criminal Motion No 3 of 2022 (“CM 3”) in its entirety, the Public Prosecutor sought a personal costs order against the applicant’s former defence counsel, Mr Joseph Chen (“Mr Chen”). The Court’s task was not to revisit the merits of CM 3, but to determine whether counsel’s conduct in filing and pursuing CM 3 fell below the standard expected of reasonable defence counsel, and whether that conduct caused the Prosecution to incur unnecessary costs.
The Court held that a personal costs order was warranted. It found that key parts of CM 3 were patently unmeritorious and bound to fail, and that Mr Chen failed to properly consider the merits and necessity of the applications before invoking the court’s processes. The Court further concluded that Mr Chen’s explanations—particularly that the applicant’s alleged inability to obtain certain psychiatric material justified proceeding—were unsupported and, in any event, did not excuse counsel’s failure to seek appropriate directions or ensure that the application was properly grounded before hearing.
What Were the Facts of This Case?
The underlying criminal matter involved the applicant, Gaiyathiri d/o Murugayan, who had pleaded guilty and was sentenced in circumstances where her mental state was relevant. For the purposes of the guilty plea, the Prosecution and Defence agreed that the 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 baseline psychiatric evidence for the plea.
CM 3 was then filed by the applicant to seek further procedural reliefs. Although the present judgment focuses on costs and counsel’s conduct, it repeatedly refers to the Court’s earlier ex tempore decision dismissing CM 3 (reported at [2022] SGCA 38). In that earlier decision, the Court had explained that there was no legal or factual basis for the discovery orders sought in CM 3. The present decision builds on that foundation by assessing how counsel handled the applications and whether counsel should have known they were bound to fail.
CM 3 contained, among other things, a discovery component and an application for leave to adduce a further psychiatric report by Dr Jacob Rajesh (“Dr Rajesh”) as further evidence. The discovery prayers sought materials that were not in the possession of the Prosecution, and the psychiatric application depended on the existence and availability of the alleged further report. The Court’s earlier judgment had already indicated that the psychiatric application was doubtful on its merits and that the Court could not consider it without the report being put before it.
At the hearing of CM 3 on 4 May 2022, the Public Prosecutor sought personal costs against Mr Chen. The Court dismissed CM 3 in its entirety in an ex tempore judgment, but directed that both Mr Chen and the Prosecution should submit in writing on whether a personal costs order should be made and, if so, the quantum. After written submissions were filed, Mr Chen initially indicated he wanted oral submissions but later agreed that the Court could decide without an oral hearing. The Court then considered the parties’ written submissions and Mr Chen’s additional points raised in correspondence.
What Were the Key Legal Issues?
The central legal issue was whether the Court 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 counsel’s conduct is alleged to have been improper, unreasonable, or negligent, and where such conduct has caused the other party to incur unnecessary costs.
In addressing this issue, the Court had to consider three linked questions: first, whether counsel acted “improperly, unreasonably or negligently”; second, whether counsel’s conduct caused the Prosecution to incur “unnecessary costs”; and third, 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 the Court’s earlier decision in Syed Suhail bin Syed Zin v Public Prosecutor [2021] 2 SLR 377.
A further legal sub-issue concerned the relevance of counsel’s state of mind and good faith. 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 therefore had to determine whether Mr Chen’s conduct fit within a “good faith but mistaken” category, or whether it instead reflected a failure to properly assess merits and necessity—potentially amounting to filing “utterly ill-conceived applications”.
How Did the Court Analyse the Issues?
The Court began by restating the applicable legal principles. It emphasised that personal costs orders are exceptional and require a structured assessment. The Court referred to Syed Suhail for the three-step framework: improper/unreasonable/negligent conduct; causation of unnecessary costs; and whether a personal costs order is “in all the circumstances just”. The Court also drew on Bintai Kindenko Pte Ltd v Samsung C&T Corp [2018] 2 SLR 532, noting that one situation where personal costs may be appropriate is where counsel advances a wholly disingenuous case or files applications that are “utterly ill-conceived” even though counsel ought to have known better and advised against such a course.
Applying these principles, the Court found that Mr Chen’s conduct in filing CM 3 fell short of what reasonable defence counsel would do and would be regarded as improper according to professional consensus. The Court’s reasoning focused on counsel’s failure to consider the merits of CM 3 and counsel’s facilitation of filing a motion that was “obviously bound to fail”. This conclusion was anchored in the Court’s earlier analysis in [2022] SGCA 38, where the Court had already explained that the discovery component lacked legal and factual basis.
For the discovery component, the Court highlighted a critical factual and logical problem: none of the materials for which discovery was sought was in the possession of the respondent (the Prosecution). The applicant herself implicitly recognised that most, if not all, of the materials were in the possession of the Singapore Prison Service (“SPS”). Given that the Prosecution was the only other party to CM 3, counsel should have appreciated that the discovery prayers were unsustainable. Mr Chen’s attempt to justify the approach by claiming he thought the Prosecution could act as a conduit between the applicant and the SPS was rejected as inconsistent with the prayers in CM 3.
The Court examined the drafting of CM 3. Prayer 2 sought discovery of the applicant’s children’s medical records from their private paediatrician, and it was directed at “the Prison Authorities”. Prayer 1 sought discovery of other materials “as against the respondent and/or the Prison Authorities”. This drafting, the Court reasoned, demonstrated that counsel recognised the respondent and the SPS as distinct entities. If counsel recognised that distinction, counsel should also have recognised that SPS-held materials would have to be obtained directly from SPS, not through the respondent. The Court therefore treated counsel’s explanation as implausible and indicative of inadequate merit assessment.
The Court further found that counsel likely did not consider necessity at all. It noted that the applicant had access to her children’s medical records from their private paediatrician and had annexed those records to her reply affidavit for CM 3. Moreover, the SPS had facilitated the applicant’s request for the medical records on 21 August 2021, and the private paediatrician had provided the reports on 5 October 2021, after which the SPS issued them to the applicant. Both the applicant and Mr Chen did not dispute these facts. The Court inferred from this that counsel had not assessed whether discovery was needed before filing CM 3 on 25 January 2022, and that counsel had invoked the court’s processes without proper evaluation.
The Court’s criticism was even more pointed regarding the psychiatric evidence component. The applicant sought leave to adduce a further psychiatric report by Dr Rajesh. The Court noted that, for the guilty plea, Dr Yeo’s assessment was agreed as reflective of the applicant’s mental state. The applicant contended that Dr Rajesh’s alleged further report disagreed with Dr Yeo. However, the Court observed that even leaving merits aside, the application was bound to fail because the alleged further report had not even been put before the Court and there was no basis to consider the application without it. The Court treated counsel’s conduct as “egregious” because counsel should have known from the outset that the application could not succeed in the absence of the report.
Mr Chen’s response was that the applicant’s impecuniosity prevented her from obtaining the alleged further report and putting it before the Court. The Court rejected this. It reasoned that this explanation implicitly accepted that the alleged further report did not exist up to the hearing of CM 3 on 4 May 2022. Proceeding with the application despite the absence of the report was therefore improper and unreasonable, as it encumbered the Court with a hopeless application and wasted court time. The Court also found that there was no evidence supporting the impecuniosity claim. The point was raised for the first time in counsel’s submissions, and the Court noted that counsel had earlier informed the Court in October 2021 that arrangements were being made to obtain the further report, without mentioning any difficulty.
Even if the impecuniosity claim were true, the Court held it would not excuse counsel’s conduct. Counsel could and should have informed the Court of the difficulty and sought directions, or ensured that CM 3 only proceeded to hearing when the relevant documents were obtained. The Court went further, stating that if counsel’s assertion had any truth, counsel would have done a grave disservice to the applicant by failing to ensure the application was properly prepared before proceeding.
Finally, the Court addressed counsel’s reliance on Newton hearings. Mr Chen 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 rejected this because the alleged further report by Dr Rajesh had not been put before the Court, so there could be no meaningful difference between Dr Yeo and Dr Rajesh’s assessments to warrant a Newton hearing. Accordingly, the Newton-related part of CM 3 also lacked a basis.
On the good faith argument, the Court distinguished Abdul Kahar. In Abdul Kahar, counsel believed in good faith (though mistakenly) that a constitutional challenge was not bound to fail, and the Court declined to order personal costs. Here, by contrast, the Court found that counsel’s conduct was not a mere good faith mistake about a debatable legal point. Instead, the Court characterised counsel’s actions as failing to consider merits, failing to assess necessity, and pursuing applications that were bound to fail. The Court therefore concluded that the case fell within the category of “utterly ill-conceived applications” where counsel ought to have known better and advised against proceeding.
What Was the Outcome?
The Court dismissed Mr Chen’s attempt to avoid a personal costs order and held that a personal costs order should be made against him. The practical effect is that the applicant’s former counsel, rather than the applicant, would bear responsibility for the costs consequences arising from the filing and pursuit of CM 3 in circumstances where the Court found counsel’s conduct to be improper and unreasonable.
While the excerpt provided does not include the precise quantum ordered, the Court’s reasoning makes clear that the order was grounded in the Court’s finding that counsel’s conduct caused unnecessary costs and that it was “in all the circumstances just” to require counsel to compensate the Prosecution for at least part (and on the Court’s reasoning, likely the whole) of the costs incurred due to CM 3.
Why Does This Case Matter?
This decision is significant for criminal practitioners because it reinforces that personal costs orders can be imposed on defence counsel where counsel’s conduct falls below professional standards, particularly when applications are plainly unmeritorious or procedurally defective. The Court’s analysis shows that the threshold is not limited to misconduct in the narrow sense; it extends to unreasonable and negligent litigation conduct, including failure to assess whether the requested relief is legally available and factually necessary.
For lawyers, the case also provides concrete drafting and case-preparation lessons. The Court relied on the structure of the prayers in CM 3 to infer what counsel must have understood about the distinct roles of the respondent and the SPS. It also relied on documentary context—such as the SPS’s prior facilitation of the applicant’s requests and the applicant’s possession of the relevant medical records—to conclude that counsel did not properly consider necessity. Practitioners should take from this that courts may scrutinise not only the legal merits but also the factual groundwork and whether the application is genuinely required.
Finally, the decision clarifies the limits of the “good faith but mistaken” defence. Abdul Kahar remains relevant, but this case demonstrates that good faith arguments will not succeed where counsel’s conduct reflects a failure to engage with the fundamentals—such as proceeding without the underlying evidence needed for the application, or pursuing discovery against a party that does not possess the materials sought. The case therefore serves as a cautionary precedent for counsel considering whether to file motions that depend on evidence not yet obtained or relief that is procedurally unavailable.
Legislation Referenced
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed) — 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.