Case Details
- Citation: [2022] SGCA 58
- Title: ISKANDAR BIN RAHMAT & 23 Ors v ATTORNEY GENERAL & Anor
- Court: Court of Appeal of the Republic of Singapore
- Date of Decision: 4 August 2022
- Civil Appeal No: 31 of 2022
- Judges: Sundaresh Menon CJ, Tay Yong Kwang JCA and Woo Bih Li JAD
- Appellants/Claimants: Iskandar Bin Rahmat and 23 others (24 convicted prisoners)
- Respondents/Defendants: Attorney-General and Government of Singapore
- Originating Claim: HC/OC 166 of 2022 (Summons No 2858 of 2022)
- High Court Summons: HC/SUM 2858 of 2022
- Nature of High Court Decision: Striking out of OC 166 in its entirety
- Second Appellant’s Oral Application: Stay of execution of a death sentence (Warrant to carry out death sentence scheduled for 5 August 2022)
- Related Proceedings Mentioned: HC/OC 173 of 2022 (filed 3 August 2022 against counsel at trial)
- Legal Areas: Constitutional Law; Criminal Procedure; Access to Justice; Fundamental Liberties; Equality; Tort; Breach of Statutory Duty; Abuse of Process
- Statutes Referenced (in extract): Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”); Constitution of the Republic of Singapore (2020 Rev Ed); Legal Profession Act 1966; Prisons Act 1993; Prisons Regulations; Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”)
- Key Constitutional Provisions (as pleaded): Arts 9(1) and 12(1) of the Constitution
- Key CPC Provisions (as pleaded): ss 356, 357 and 409 CPC Cost Provisions
- Judgment Length: 33 pages, 10,186 words
- Cases Cited (as provided): [2018] SGHC 82; [2021] SGHC 274; [2022] SGCA 26; [2022] SGCA 44; [2022] SGCA 57; [2022] SGCA 58
Summary
In Iskandar bin Rahmat and others v Attorney-General and another ([2022] SGCA 58), the Court of Appeal dealt with two matters arising in close succession. First, it heard Civil Appeal No 31 of 2022, an appeal against a High Court decision that struck out, in its entirety, a constitutional and damages claim brought by 24 convicted prisoners. The prisoners sought (among other relief) a declaration that the “CPC Cost Provisions” in ss 356, 357 and 409 of the Criminal Procedure Code 2010 (2020 Rev Ed) were inconsistent with Arts 9(1) and 12(1) of the Constitution, and they also sought damages for breach of a statutory duty connected to access to justice.
Second, during the Court of Appeal hearing, the second appellant applied orally for a stay of execution of his death sentence. The stay application was grounded on a separate action filed against his trial counsel, which the appellants said was intended to support a further attempt to challenge the execution schedule. The Court of Appeal refused the stay application and, in the course of the hearing, also declined the appellants’ request to be assisted by a McKenzie friend who was not lawfully entitled to practise.
What Were the Facts of This Case?
The appellants were 24 convicted prisoners who had been sentenced to death in separate but related criminal proceedings. The second appellant, Abdul Rahim bin Shapiee (“Abdul Rahim”), and a co-accused, Ong Seow Ping (“Ong”), were scheduled for execution on 5 August 2022 pursuant to death sentences imposed after a joint trial. Ong was not a party to the present proceedings, but his execution date contextualised the urgency of the second appellant’s application for a stay.
In the underlying criminal case, Abdul Rahim and Ong were convicted on 15 March 2018 for possessing a Class A controlled drug for the purpose of trafficking under s 5(1)(a), read with s 5(2), of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed). The trial judge held that the alternative sentencing regime under s 33B of the MDA was not applicable and imposed the death sentence. Abdul Rahim’s conviction and sentence were dismissed on appeal on 5 March 2020. At the appeal stage, Abdul Rahim was represented by counsel different from the trial team, with assistance from an assisting counsel who had also been part of the trial representation.
After the issuance of warrants of execution, the procedural timeline became critical. Warrants were issued on 19 July 2022, scheduling execution for 5 August 2022. Abdul Rahim received his Notice of Execution on 29 July 2022. The appellants contended that they had intended to file their originating claim earlier (on 28 July 2022), but that a prison registry officer had erroneously rejected their filing, resulting in the claim being filed later than intended. This factual dispute about filing logistics was relevant to the appellants’ narrative of urgency and their explanation for how quickly they had to bring the constitutional challenge.
The constitutional and damages claim in the present case was brought by way of HC/OC 166 of 2022. The appellants sought a declaration that the CPC cost regime—specifically ss 356, 357 and 409—was inconsistent with constitutional guarantees of access to justice and equality before the law. They further sought damages for breach of a statutory duty framed as an obligation to facilitate access to justice and access to counsel/legal advice, drawing on the Constitution and related statutory frameworks governing legal practice and prison administration.
What Were the Key Legal Issues?
The first legal issue concerned whether the High Court was correct to strike out the appellants’ originating claim in its entirety. This required the Court of Appeal to consider, at a threshold level, whether the constitutional declaration claim and the damages claim were legally sustainable, and whether they were properly framed as justiciable claims rather than impermissible collateral attacks on criminal process or execution arrangements.
A second issue arose from the second appellant’s oral application for a stay of execution. The Court of Appeal had to determine whether the filing of HC/OC 173 of 2022 against trial counsel—ostensibly for breach of duty and failure to follow instructions—could justify a stay of execution. This involved assessing whether the application was an appropriate basis for a stay, and whether it was being used for a collateral or abusive purpose rather than a genuine attempt to obtain substantive legal relief that would affect the execution.
Finally, although not the central merits issue, the Court of Appeal also addressed the procedural question of whether the appellants could be assisted by a McKenzie friend who was not lawfully entitled to practise. The Court’s approach to this request reflected broader concerns about maintaining the integrity of legal representation and avoiding “back door” legal practice.
How Did the Court Analyse the Issues?
The Court of Appeal began by addressing the procedural request for a McKenzie friend. The appellants sought permission for an advocate and solicitor, Mr M Ravi (“Mr Ravi”), to act as a McKenzie friend even though he did not hold a practising certificate at the time. The Court declined the request after asking the appellants about the purpose of the proposed assistance. The Court accepted that a McKenzie friend may, in appropriate circumstances, provide support to litigants—such as helping with documents, taking notes, or guiding a litigant through process—but emphasised that a McKenzie friend has no right to appear or act as an advocate in pending litigation.
In refusing permission, the Court relied on the principle articulated in Wee Soon Kim Anthony v UBS AG [2003] 1 SLR(R) 833, where the High Court observed that permission may be denied if there is reason to believe the privilege is being abused. The Court noted that Mr Ravi’s prior conduct had already raised concerns. In a separate but related decision, Nagaenthran a/l K Dharmalingam v Attorney-General and another [2022] SGCA 26, the Court had criticised Mr Ravi’s involvement in a hearing where he was not entitled to practise, describing how his “technical support” role had in substance become substantive instruction and participation in submissions. The Court in the present case reiterated that such conduct was embarrassing and disrespectful to the court, and it was concerned that Mr Ravi should not use a McKenzie friend arrangement as a “back door” to provide legal advice when he was not lawfully permitted to do so.
Turning to the substantive appeal, the Court of Appeal considered the High Court’s decision to strike out OC 166. While the extract provided does not include the full reasoning on the merits, the structure of the case indicates that the Court was concerned with the justiciability and propriety of the claims. The appellants’ primary declaration claim challenged the constitutionality of the CPC cost provisions. Their damages claim, framed as breach of statutory duty, sought to transform alleged barriers to access to justice into a civil remedy against the Attorney-General and the Government.
In constitutional litigation, courts typically scrutinise whether the pleaded constitutional inconsistency is sufficiently particularised and whether the claim is directed at a genuine legal controversy rather than an attempt to re-litigate matters already determined in criminal proceedings. The Court’s inclusion of headings such as “Abuse of Process” and “Collateral purpose” signals that the Court was attentive to whether the proceedings were being used to achieve an indirect objective—such as delaying execution or undermining the finality of criminal adjudication—rather than to obtain a bona fide constitutional determination with practical effect.
The Court also had to consider the relationship between access to justice arguments and the criminal process. The CPC cost provisions regulate costs consequences in criminal appeals and related proceedings. A constitutional challenge to such provisions may, in principle, be justiciable; however, the Court would still assess whether the claim is properly framed, whether it is speculative, and whether it is being pursued in a manner that is procedurally and substantively appropriate given the stage of the criminal process and the execution timetable.
On the stay application, the Court’s analysis would necessarily focus on whether the new action against trial counsel could realistically affect the execution. The Court noted that Abdul Rahim’s stay application was grounded on OC 173, filed on 3 August 2022, with execution scheduled for the next day. The Court therefore had to evaluate whether the action was likely to succeed, whether it raised issues that could be determined quickly enough to matter, and whether it was being used as a collateral mechanism to obtain delay. The Court’s emphasis on abuse of process in the case headings suggests that it was not persuaded that the filing against counsel was a legitimate basis for a stay.
What Was the Outcome?
The Court of Appeal dismissed the appeal against the High Court’s striking out of OC 166. The practical effect was that the appellants’ constitutional declaration claim and damages claim did not proceed in the form pleaded, and the High Court’s dismissal remained in force.
In addition, the Court of Appeal refused the oral application for a stay of execution sought by the second appellant. As a result, the execution process was not stayed on the basis of the newly filed action against trial counsel, and the execution schedule proceeded without the interim protection requested.
Why Does This Case Matter?
This decision is significant for practitioners because it illustrates the Court of Appeal’s willingness to police the boundaries of constitutional and civil claims brought by convicted persons, particularly where such claims intersect with the finality of criminal adjudication and the execution timetable. While constitutional challenges to legislation are generally part of Singapore’s legal landscape, the Court’s approach underscores that courts will still scrutinise whether proceedings are properly constituted, legally sustainable, and not deployed for collateral delay.
The case also matters for access-to-justice litigation strategy. The appellants attempted to frame a constitutional challenge to criminal costs provisions and to convert alleged access barriers into a damages claim for breach of statutory duty. The Court’s dismissal indicates that such claims must be carefully pleaded and must demonstrate a clear legal pathway to relief; otherwise, they risk being struck out at an early stage.
Finally, the Court’s treatment of the McKenzie friend request provides a practical reminder for litigants and counsel. The Court reaffirmed that McKenzie friends are limited to supportive roles and cannot be used to circumvent practising certificate requirements. For legal practitioners, this is a cautionary example of how courts will respond to arrangements that effectively enable unqualified individuals to provide substantive legal advice.
Legislation Referenced
- Criminal Procedure Code 2010 (2020 Rev Ed), ss 356, 357, 409 [CDN] [SSO]
- Constitution of the Republic of Singapore (2020 Rev Ed), Arts 9(1) and 12(1)
- Legal Profession Act 1966
- Prisons Act 1993
- Prisons Regulations
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed), s 5(1)(a), s 5(2), s 33B [CDN] [SSO]
Cases Cited
- Wee Soon Kim Anthony v UBS AG [2003] 1 SLR(R) 833
- Public Prosecutor v Ong Seow Ping and another [2018] SGHC 82
- Syed Suhail bin Syed Zin and others v Attorney-General [2021] SGHC 274
- Nagaenthran a/l K Dharmalingam v Attorney-General and another [2022] SGCA 26
- Iskandar bin Rahmat v Attorney-General and another [2022] SGCA 58
- [2022] SGCA 44
- [2022] SGCA 57
Source Documents
This article analyses [2022] SGCA 58 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.