Case Details
- Citation: [2022] SGCA 44
- Title: Nagaenthran a/l K Dharmalingam v Attorney-General and another matter
- Court: Court of Appeal of the Republic of Singapore
- Date: 26 May 2022
- Procedural context: Ex tempore decision on costs following dismissal of earlier appeals/motions
- Related earlier decision: Nagaenthran a/l K Dharmalingam v Attorney-General and another matter [2022] SGCA 26
- Judges: Sundaresh Menon CJ; Andrew Phang Boon Leong JCA; Judith Prakash JCA; Belinda Ang Saw Ean JAD; Chao Hick Tin SJ
- Appellant/Applicant: Nagaenthran a/l K Dharmalingam
- Respondent/Defendant: Attorney-General (and, in the criminal motion, the Public Prosecutor)
- Key proceedings: Civil Appeal No 61 of 2021 (CA 61); Criminal Motion No 30 of 2021 (CM 30); Originating Summons No 1109 of 2021
- Legal areas: Criminal Procedure and Sentencing — Compensation and costs; Civil Procedure — Costs
- Statutes referenced: Criminal Procedure Code (2010) (2020 Rev Ed); Rules of Court (Cap 322, R 5, 2014 Rev Ed) (ROC)
- Rules/Provisions relied upon: O 59 r 8(1)(c) ROC; s 357(1)(b) CPC; inherent powers
- Cases cited (as reflected in the extract): 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; Syed Suhail bin Syed Zin v Public Prosecutor [2021] 2 SLR 377; Abdul Kahar bin Othman v Nagaenthran a/l K Dharmalingam v Public Prosecutor [2018] 2 SLR 1394; Bintai Kindenko Pte Ltd v Samsung C&T Corp [2018] 2 SLR 532
- Judgment length: 12 pages; 3,010 words
Summary
This Court of Appeal decision concerns costs personally ordered against defence counsel following the dismissal of both a civil appeal and a criminal motion brought by the same appellant, Nagaenthran a/l K Dharmalingam. The Court had earlier dismissed CA 61 and CM 30 in Nagaenthran a/l K Dharmalingam v Attorney-General and another matter [2022] SGCA 26. In the earlier judgment, the Court left open the question of costs and later directed submissions on costs, culminating in this ex tempore decision on 26 May 2022.
The Court held that it was an appropriate case for personal costs orders against both counsel, Mr Ravi s/o Madasamy and Ms L F Violet Netto, in respect of the civil appeal and the criminal motion. Applying the established three-step test for personal costs orders against legal representatives under O 59 r 8(1)(c) of the Rules of Court, and extending the same principles to criminal proceedings, the Court found that counsel had advanced arguments without a factual basis and had engaged in conduct that amounted to an abuse of the court’s processes. The Court therefore ordered that counsel be jointly and severally liable to compensate the prosecution for specified sums of costs.
What Were the Facts of This Case?
The underlying dispute arose from proceedings brought by Nagaenthran seeking relief in relation to his criminal conviction and/or sentence, including an originating summons (OS 1109 of 2021) and a criminal motion (CM 30 of 2021). The appellant was represented by Mr Ravi and Ms Netto. The Court of Appeal ultimately dismissed both CA 61 and CM 30 in [2022] SGCA 26. That earlier judgment is central to understanding this costs decision because the Court’s assessment of counsel’s conduct depended heavily on the factual and evidential weaknesses identified in the earlier dismissal.
In the earlier judgment, the Court found that there was no admissible evidence supporting the appellant’s case regarding his mental condition and, in particular, his “mental age” or related mental capacity assertions. The Court emphasised that the defence’s evidential foundation was speculative and irrelevant, and that the proceedings were pursued without a proper substratum of facts. The Court also traced the timeline of events and concluded that the proceedings constituted a blatant and egregious abuse of the court’s processes.
After dismissing the substantive proceedings, the Court in [2022] SGCA 26 gave leave for the parties to raise questions of costs within a specified time. Following further directions, the Attorney-General’s Chambers (AGC) filed written submissions seeking personal costs orders against both Mr Ravi and Ms Netto. AGC’s position was that counsel should be jointly and severally liable for costs of S$30,000 in respect of CA 61 and S$10,000 in respect of CM 30.
Procedurally, counsel’s conduct during the costs phase also became relevant. Mr Ravi filed “Applicant’s Submissions on Costs” on 12 May 2022. AGC did not object to the late filing. However, the Court observed that the submissions were not clearly made on behalf of Ms Netto. The Court directed Ms Netto to confirm whether the submissions were filed on her behalf and required Mr Ravi to state the basis for filing on her behalf. Ms Netto later clarified that the submissions were filed in Mr Ravi’s personal capacity and not on her behalf. At the hearing on costs, Ms Netto appeared after the proceedings had started and tendered a medical certificate that was not valid for excusing attendance. She did not seek an adjournment and indicated she associated herself with Mr Ravi’s position.
What Were the Key Legal Issues?
The principal legal issue was whether the Court should make personal costs orders against defence counsel, rather than leaving costs to be borne by the party they represented. In CA 61, the relevant statutory basis was O 59 r 8(1)(c) of the Rules of Court, which permits 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”.
In CM 30, the issue was whether the criminal court (and, on appeal, the Court of Appeal) could order defence counsel to pay costs directly to the prosecution. The Court addressed this by reference to s 357(1)(b) of the Criminal Procedure Code and the Court’s inherent powers. The Court also considered whether the civil-law principles governing personal costs orders against counsel should apply in criminal proceedings.
A further issue was the proper interpretation and application of the terms “improperly”, “unreasonably”, and “negligently” in the context of counsel’s conduct. The Court needed to determine whether counsel’s conduct met the threshold for personal liability, and whether such an order was “just in all the circumstances” after considering causation and fairness.
How Did the Court Analyse the Issues?
The Court began by restating the governing legal framework. For CA 61, it relied on O 59 r 8(1)(c) ROC. It summarised the applicable test as a three-step inquiry endorsed in Singapore case law and originally articulated in Ridehalgh v Horsefield. The test asks: (a) whether the legal representative acted improperly, unreasonably, or negligently; (b) whether that 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) CPC or its inherent powers to order defence counsel to pay costs directly to the prosecution. It relied on prior Court of Appeal authority, including Abdul Kahar bin Othman v Nagaenthran a/l K Dharmalingam v Public Prosecutor and Syed Suhail bin Syed Zin v Public Prosecutor, which held that the civil principles on personal costs orders are of general application in criminal proceedings. The ultimate question remained whether it was just in all the circumstances to make such a personal costs order.
The Court then addressed how to understand the evaluative terms. It adopted the approach from Syed Suhail (citing Ridehalgh) that “improper” is not limited to conduct that would justify serious professional penalties; it can include significant breaches of substantial professional duties and conduct stigmatised by professional consensus. “Unreasonable” captures vexatious or harassing conduct, but also conduct that fails the “reasonable explanation” standard. “Negligent” was understood in an untechnical way as failure to act with the competence reasonably expected of ordinary members of the profession. The Court also referenced Bintai Kindenko, where it was suggested that personal costs may be appropriate where counsel advances a wholly disingenuous case or files utterly ill-conceived applications despite knowing better and advising the client against such a course.
Applying these principles, the Court focused on whether Mr Ravi and Ms Netto advanced arguments that were unsustainable and whether their conduct frustrated the lawful process of execution by abusing the court’s processes. The Court’s analysis was anchored in the earlier judgment’s findings. It reiterated that in OS 1109 (and the related proceedings), the defence had relied on bare assertions by Mr Ravi about the appellant’s mental age without admissible evidence. The Court emphasised that Mr Ravi acknowledged he had no medical expertise, and that his opinion appeared to be based on a single interaction lasting less than half an hour over three years. The Court held that such evidence was irrelevant and inadmissible, and that the proceedings were undertaken when there was no factual basis.
In CM 30, the Court referred to its earlier findings that the evidence of another witness (Mr Navinkumar) was wholly unreliable. The Court concluded that these factual weaknesses and evidential problems would have been apparent to any reasonably diligent defence counsel. It rejected Mr Ravi’s attempt to justify the lack of medical expertise by pointing to overseas experts. The Court considered that the nub of the issue was not whether experts were sought, but that proceedings were initiated without a factual foundation and could not be based on speculation. It also noted that the defence experts had not examined or even spoken to the appellant or reviewed his present medical reports, which further undermined the evidential basis.
Importantly, the Court also highlighted that there was highly probative evidence available to aid the court’s assessment of the appellant’s mental condition, yet objections were mounted on the appellant’s behalf to prevent the court from accessing that evidence. This reinforced the Court’s view that counsel’s conduct was not merely an error of judgment but a pattern of pursuing proceedings without proper evidential footing and, in doing so, obstructing the court’s ability to reach an informed determination.
Finally, the Court addressed counsel’s submissions that the proceedings raised novel issues of public importance. The Court held that such characterisation was irrelevant where there was no relevant substratum of facts to support raising those issues. In other words, novelty does not cure the absence of admissible evidence or a factual basis. The Court’s earlier tracing of the timeline and its conclusion that the proceedings were a “blatant and egregious abuse” of the court’s processes provided the context for concluding that counsel’s conduct met the threshold of improper/unreasonable/negligent conduct and caused unnecessary costs to be incurred by AGC.
What Was the Outcome?
The Court ordered personal costs against both Mr Ravi and Ms Netto. In respect of CA 61, the Court ordered that they be jointly and severally liable for costs of S$30,000. In respect of CM 30, the Court ordered joint and several liability for costs of S$10,000.
Practically, the effect of the orders is that the prosecution could recover these costs directly from counsel personally, rather than being limited to recovering costs from the appellant. The decision therefore signals that where counsel’s conduct crosses the line into advancing unsustainable, speculative, or abusive proceedings, the Court will not hesitate to impose personal financial consequences.
Why Does This Case Matter?
This case is significant because it demonstrates the Court of Appeal’s willingness to apply personal costs principles robustly in both civil and criminal contexts. While O 59 r 8(1)(c) ROC is a civil procedural mechanism, the Court confirmed that the same underlying principles can apply in criminal proceedings through s 357(1)(b) CPC and inherent powers. This means defence counsel cannot assume that personal costs exposure is limited to civil litigation.
For practitioners, the decision is a clear warning that initiating or sustaining proceedings without an evidential substratum—particularly where counsel lacks the expertise to support key factual assertions—may be treated as improper, unreasonable, or negligent. The Court’s reasoning also underscores that “optimistic” advocacy is not the same as unreasonable conduct; however, where there is no reasonable explanation for pursuing the case, personal costs may follow.
From a research and precedent perspective, the case reinforces and operationalises the three-step test from Ridehalgh as adopted in Singapore, and it situates that test within the criminal costs framework. It also illustrates how the Court will use findings from the earlier dismissal judgment (including evidential deficiencies and abuse-of-process conclusions) to assess counsel’s conduct at the costs stage. Lawyers should therefore treat the substantive merits findings as potentially determinative of later costs liability for counsel.
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
- 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 Nagaenthran a/l K Dharmalingam 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.