Case Details
- Title: Nagaenthran a/l K Dharmalingam v Attorney-General
- Citation: [2022] SGCA 44
- Court: Court of Appeal of the Republic of Singapore
- Date of Decision: 26 May 2022
- Decision Type: Ex tempore judgment (on costs following earlier dismissal)
- Related Earlier Decision: Nagaenthran a/l K Dharmalingam v Attorney-General and another matter [2022] SGCA 26
- Civil Appeal No: 61 of 2021 (“CA 61”)
- Criminal Motion No: 30 of 2021 (“CM 30”)
- Originating Summons No: 1109 of 2021 (“OS 1109”)
- Appellant / Plaintiff / Applicant: Nagaenthran a/l K Dharmalingam
- Respondent / Defendant / Respondent (CM): Attorney-General (and Public Prosecutor in CM)
- Panel: Sundaresh Menon CJ, Andrew Phang Boon Leong JCA, Judith Prakash JCA, Belinda Ang Saw Ean JAD, Chao Hick Tin SJ
- Judgment Date(s) Mentioned: 25 May 2022 (hearing); 26 May 2022 (ex tempore decision)
- Judgment Length: 12 pages, 3,106 words
- Key Procedural Context: Costs question raised after dismissal; leave granted to raise costs within seven days; further directions issued for written submissions
- Costs Sought: Personal costs orders against defence counsel (Mr Ravi and Ms Netto) in both CA 61 and CM 30
- Amount Sought (AGC): CA 61: $30,000; CM 30: $10,000 (jointly and severally)
- Cases Cited (as provided): [2022] SGCA 26; [2022] SGCA 44 (this decision); [2022] SGCA 26 is the earlier merits judgment
Summary
This Court of Appeal decision concerns costs, not the merits of the underlying appeal and criminal motion. After the Court of Appeal dismissed both the civil appeal and the criminal motion in Nagaenthran a/l K Dharmalingam v Attorney-General and another matter [2022] SGCA 26, the parties were given leave to raise any question of costs. In the present ex tempore judgment ([2022] SGCA 44), the Court addressed whether defence counsel should be personally liable for costs incurred by the Attorney-General’s Chambers (“AGC”) due to the manner in which the proceedings were pursued.
The Court held that this was an appropriate case for personal costs orders against both Mr Ravi and Ms Netto. Applying the established three-step test for personal costs orders in civil proceedings under O 59 r 8(1)(c) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”), and the analogous “just in all the circumstances” approach in criminal proceedings, the Court concluded that counsel advanced arguments that were unsustainable and that the proceedings amounted to an egregious abuse of process. The Court further found that AGC incurred unnecessary costs as a result, and that it was just to order counsel to compensate AGC for the relevant costs.
What Were the Facts of This Case?
The litigation arose from OS 1109 of 2021, which was connected to the appellant’s criminal conviction and related sentencing/relief efforts. The appellant, Nagaenthran a/l K Dharmalingam, pursued CA 61 and CM 30 through defence counsel, seeking to challenge aspects of the case and to advance arguments relating to the appellant’s mental condition and “mental age”. The Court of Appeal’s earlier merits judgment ([2022] SGCA 26) had already determined that there was no basis for the civil appeal and the criminal motion.
In the costs stage, the Court focused on what defence counsel had done procedurally and evidentially. The Court emphasised that the proceedings were brought and maintained without an admissible evidential foundation. In CA 61, the Court noted that there was no admissible evidence showing any decline in the appellant’s mental condition after the commission of the offence. In OS 1109, the only material before the court was a bare assertion by Mr Ravi as to the appellant’s mental age. The Court observed that Mr Ravi had no medical expertise, and that his purported opinion appeared to be based on a single interaction with the appellant lasting less than half an hour over a period of three years.
In CM 30, the Court similarly found that the evidence relied upon by the defence was wholly unreliable. The Court had also traced a timeline of events leading to the conclusion that the proceedings constituted a blatant and egregious abuse of the court’s processes. A recurring theme was that counsel did not put forward their best case at the first instance. Instead, the Court described a “drip-feeding” approach—where supposed evidence and arguments were advanced in stages rather than comprehensively and responsibly from the outset.
After the dismissal of CA 61 and CM 30 on 29 March 2022, the Court of Appeal in [2022] SGCA 26 had given leave for the parties to raise any question of costs within seven days. On 12 April 2022, the Court directed AGC to file and serve written submissions on costs by 26 April 2022, and directed counsel (Ms Netto and Mr Ravi) to file and serve reply submissions within two weeks from AGC’s filing. AGC then sought personal costs orders against both Mr Ravi and Ms Netto, proposing joint and several liability for $30,000 in CA 61 and $10,000 in CM 30.
What Were the Key Legal Issues?
The central legal issue was whether the Court should order that defence counsel personally bear costs incurred by AGC. This required the Court to apply the doctrinal framework for personal costs orders in civil proceedings and to consider whether the same principles (or analogous ones) should apply in criminal proceedings.
For CA 61, the relevant legal basis was O 59 r 8(1)(c) of the ROC, which empowers the court to order costs against solicitors personally where costs have been incurred “unreasonably or improperly” or have been “wasted by failure to conduct proceedings with reasonable competence and expedition”. The Court therefore had to determine whether counsel’s conduct met the threshold of improper, unreasonable, or negligent conduct, whether such conduct caused unnecessary costs, and whether it was just in all the circumstances to make a personal costs order.
For CM 30, the issue was whether the Court hearing criminal proceedings had power to order defence counsel to pay costs directly to the prosecution. The Court considered s 357(1)(b) of the Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”) and its inherent powers, and it had to decide whether it was just to make such a personal costs order in the circumstances. The Court also had to consider whether the civil principles developed for personal costs orders were of general application in criminal proceedings.
How Did the Court Analyse the Issues?
The Court began by setting out the governing principles for personal costs orders against counsel. For CA 61, it relied on the three-step test summarised in Munshi Rasal v Enlighten Furniture Decoration Co Pte Ltd [2021] 1 SLR 1277 (“Munshi Rasal”), which itself endorsed the English Court of Appeal’s approach in Ridehalgh v Horsefield [1994] Ch 205. The test asks: (a) whether the legal representative acted improperly, unreasonably or negligently; (b) whether such conduct caused the applicant to incur unnecessary costs; and (c) whether it is just in all the circumstances to order the legal representative to compensate for the whole or part of the relevant costs.
For CM 30, the Court noted that the criminal court has power under s 357(1)(b) of the CPC, or under its inherent powers, to order defence counsel to pay costs directly to the prosecution. The Court referred to its earlier decisions, including Abdul Kahar bin Othman v Public Prosecutor [2018] 2 SLR 1394 (“Abdul Kahar”) and Syed Suhail bin Syed Zin v Public Prosecutor [2021] 2 SLR 377 (“Syed Suhail”). In Syed Suhail, the Court of Appeal had found that the civil principles are of general application, with the ultimate question being whether it is just in all the circumstances to make a personal costs order.
The Court then elaborated on how to interpret “improperly”, “unreasonably”, and “negligently”. It adopted the approach that “improper” is not confined to conduct that would justify disbarment or serious professional penalties; it can include significant breaches of substantial duties and conduct that the professional consensus would regard as improper. “Unreasonable” covers vexatious or harassing conduct, but the Court stressed that an unsuccessful outcome alone does not make conduct unreasonable; the “acid test” is whether the conduct permits a reasonable explanation. “Negligent” was understood in an untechnical way as failure to act with the competence reasonably expected of ordinary members of the profession.
Applying these principles, the Court structured its analysis around four questions: (a) whether counsel advanced arguments that were unsustainable; (b) whether counsel acted to frustrate lawful process of execution in abuse of the court’s processes; (c) whether such conduct caused AGC to incur unnecessary costs; and (d) whether it was just to order counsel to compensate for the whole or part of the relevant costs.
On the first question, the Court relied heavily on its earlier merits findings in [2022] SGCA 26. It reiterated that there was no admissible evidence supporting the defence’s case in CA 61. The Court highlighted that Mr Ravi’s “opinion” on mental age was not grounded in medical expertise and was based on limited interaction. The Court also noted that the defence’s evidential approach was speculative and that proceedings may not be instituted on speculation. In CM 30, the Court pointed to the unreliability of the defence’s evidence and the absence of a proper evidential basis.
Crucially, the Court also addressed the defence’s attempt to justify its approach by reference to the need to obtain experts overseas. The Court rejected this as missing the “nub of the issue”: the proceedings were undertaken when there was no factual basis. Further, the Court observed that none of the appellant’s experts had examined or even spoken to the appellant or reviewed current medical reports. The Court also referred to probative evidence available to assess the appellant’s mental condition, and it noted that objections were mounted to prevent the court from accessing that evidence. In the Court’s view, these features would have been apparent to any reasonably diligent defence counsel.
On the second question, the Court treated the procedural history as indicative of abuse of process. It referred to the earlier judgment’s tracing of the timeline leading to the conclusion that the proceedings were a “blatant and egregious abuse” of the court’s processes. The Court’s description of “drip-feeding” evidence and arguments reinforced the view that counsel did not act with reasonable competence and expedition. While the truncated extract does not reproduce every detail, the Court’s reasoning clearly linked counsel’s conduct to the unnecessary expenditure of time and resources by AGC and the court.
Finally, on the third and fourth questions, the Court concluded that AGC incurred unnecessary costs because of counsel’s conduct and that it was just, in all the circumstances, to make personal costs orders against both Mr Ravi and Ms Netto. The Court’s approach indicates that it viewed the conduct not as a mere tactical misjudgment but as conduct that crossed the threshold of improper/unreasonable/negligent advocacy, particularly given the absence of evidential substratum and the abuse-of-process characterisation in the merits judgment.
What Was the Outcome?
The Court ordered personal costs against both Mr Ravi and Ms Netto. The orders were made in respect of both CA 61 and CM 30, reflecting AGC’s submissions for joint and several liability for $30,000 in CA 61 and $10,000 in CM 30.
Practically, the decision signals that where defence counsel pursues proceedings without an evidential foundation, or where the proceedings amount to an abuse of process, the Court may depart from the usual position that costs are borne by the parties and instead impose personal financial responsibility on counsel.
Why Does This Case Matter?
This case is significant because it illustrates how the Court of Appeal will apply the personal costs framework in a situation where the merits have already been decisively against the appellant and where the Court characterises the proceedings as an egregious abuse of process. While personal costs orders are not routine, this decision demonstrates that they can be imposed where counsel’s conduct is found to be unsustainable, speculative, and inconsistent with the competence and expedition expected of practitioners.
For practitioners, the decision is a cautionary reminder that advocacy must be anchored in admissible evidence and a coherent evidential substratum. The Court’s reasoning underscores that “novel issues” or “public importance” cannot salvage proceedings that lack factual foundation. It also highlights that objections to probative evidence may be viewed adversely when assessing whether counsel acted improperly or unreasonably.
From a research and precedent perspective, [2022] SGCA 44 reinforces the continuing vitality of the Ridehalgh v Horsefield three-step test as adopted in Singapore, and it confirms the general applicability of civil personal costs principles in criminal proceedings. It also provides a concrete example of how the Court may treat “drip-feeding” evidence and staged argumentation as part of an abuse-of-process narrative, thereby supporting personal costs liability.
Legislation Referenced
- Rules of Court (Cap 322, R 5, 2014 Rev Ed), O 59 r 8(1)(c)
- Criminal Procedure Code 2010 (2020 Rev Ed), s 357(1)(b)
Cases Cited
- Nagaenthran a/l K Dharmalingam v Attorney-General and another matter [2022] SGCA 26
- Nagaenthran a/l K Dharmalingam v Attorney-General and another matter [2022] SGCA 44
- Munshi Rasal v Enlighten Furniture Decoration Co Pte Ltd [2021] 1 SLR 1277
- Ridehalgh v Horsefield [1994] Ch 205
- Tang Liang Hong v Lee Kuan Yew and another and other appeals [1997] 3 SLR(R) 576
- Ho Kon Kim v Lim Gek Kim Betsy and others and another appeal [2001] 3 SLR(R) 220
- Abdul Kahar bin Othman v Public Prosecutor [2018] 2 SLR 1394
- 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
Source Documents
This article analyses [2022] SGCA 44 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.