Case Details
- Citation: [2022] SGCA 57
- Title: ROSLAN BIN BAKAR & 2 Ors v PUBLIC PROSECUTOR
- Court: Court of Appeal of the Republic of Singapore
- Date of Decision: 27 July 2022
- Procedural Dates Noted in Judgment: Judgment reserved on 29 March 2022; hearing dates include 29 March 2022 and 27 June 2022
- Judicial Panel: Judith Prakash JCA, Belinda Ang Saw Ean JAD and Woo Bih Li JAD
- Applicants/ Appellants (Criminal Motion / Civil Appeal): Roslan bin Bakar; Pausi bin Jefridin; Lawyers for Liberty
- Respondent (Criminal Motion / Civil Appeal): Public Prosecutor
- Respondent (Civil Appeal): Attorney-General
- Case Numbers: Criminal Motion No 6 of 2022; Civil Appeal No 6 of 2022; Originating Summons 139 of 2022
- Related Proceedings Mentioned: CA/CCA 26/2018; CA/CCA 59/2017; CA/CCA 61/2017
- Key Statutory Instruments Referenced (as per extract): Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”); Rules of Court (Cap 322, R5); Constitution of the Republic of Singapore (Arts 9 and 12)
- Statutory Provision Central to Costs Issue: s 409 of the CPC
- Other CPC Provision Discussed: s 394H of the CPC (threshold for review set down); s 394H context from earlier decisions; s 6 (where no procedure is provided); s 117 (representation of body corporate charged with an offence)
- Length of Judgment: 27 pages; 8,313 words
- Prior Related Court of Appeal Decisions Cited: [2022] SGCA 18; [2022] SGCA 20; [2022] SGCA 57
Summary
This Court of Appeal decision concerns the costs arising from a sequence of proceedings brought by Roslan bin Bakar and Pausi bin Jefridin, and supported by Lawyers for Liberty (“LFL”). The underlying substantive attempts were directed at setting aside death sentences imposed after convictions for drug trafficking. The Court had dismissed the relevant criminal motion and later dismissed the related appeal from the High Court’s refusal of leave to commence judicial review. The present judgment addresses whether costs should be ordered against LFL and against counsel personally, and the procedural and substantive principles governing such costs orders in criminal proceedings.
The Court held that the power to order costs under s 409 of the CPC is conditional: it may be exercised only if the criminal motion has been dismissed and the court is of the view that the motion was frivolous, vexatious, or otherwise an abuse of process. The Court also addressed a preliminary procedural oddity: whether a foreign body corporate that was not charged with an offence (LFL) could appear through a representative in costs proceedings. Applying the “no procedure provided” principle in s 6 of the CPC, the Court accepted that LFL could be represented for the costs hearing, provided it complied with appropriate appointment/authority requirements.
What Were the Facts of This Case?
The litigation history begins with the applicants’ efforts to challenge death sentences. Roslan bin Bakar and Pausi bin Jefridin had been sentenced to death following convictions for drug trafficking. They sought to set aside those sentences by pursuing a criminal motion under s 394H of the CPC. The criminal motion (CM 6) was filed on 14 February 2022 and heard on 15 February 2022. At that hearing, all applicants were represented by Mr Charles Yeo Yao Hui (“Mr Yeo”), who was then a salaried partner of the firm L F Violet Netto (“LFVN”) and had filed an affidavit in support of the application. The sole proprietor of LFVN was Ms L F Violet Netto (“Ms Netto”).
CM 6 was brought by three persons: Roslan bin Bakar (first applicant), Pausi bin Jefridin (second applicant), and LFL (third applicant). The motion sought leave to file an application to review earlier Court of Appeal decisions in CA/CCA 59/2017 and CA/CCA 26/2018, which concerned the respective criminal cases against the first and second applicants. The Public Prosecutor was the respondent. The Court dismissed CM 6 on the basis that the first and second applicants did not meet the threshold requirements for a review under s 394H of the CPC and had no material to support such a review. As for LFL, the Court held it had no standing to be a party to CM 6 and dismissed the application in respect of LFL as a preliminary matter. The Court’s full grounds for the dismissal are found in Roslan bin Bakar & anor v Public Prosecutor [2022] SGCA 18 (“the CM 6 Judgment”).
Later that same evening after CM 6 was dismissed, LFVN filed a High Court originating summons (OS 139) on behalf of the first and second applicants. OS 139 was an application for leave to commence judicial review proceedings. It was heard on 16 February 2022 by a High Court judge of the General Division (“the Judge”). The Judge dismissed OS 139. The applicants then immediately filed CA 6, an appeal against the Judge’s dismissal. CA 6 was dismissed because the arguments raised lacked merit, both in the appeal and in the originating application before the Judge. The Court’s full grounds are in Roslan bin Bakar and another v Attorney-General [2022] SGCA 20 (“the CA 6 Judgment”).
After the dismissal of CM 6 and CA 6, the respondents applied for orders for costs against LFL and against Mr Yeo personally. The Court gave directions for submissions on costs. Correspondence from the Court was addressed to LFVN on behalf of Mr Yeo and LFL. The Public Prosecutor’s written submissions were filed on 1 March 2022, and Mr Yeo filed his written submissions on 29 March 2022. Notably, LFL was not mentioned in Mr Yeo’s written submissions. On 28 April 2022, Mr Yeo informed the Court that LFL would not make submissions in reply to the Public Prosecutor’s requests for costs orders against it. Despite this, LFL remained represented by LFVN on record.
As the costs hearing approached, procedural friction emerged. The hearing was fixed for 11 May 2022. Two days before, on 9 May 2022, LFL sought a postponement so it could file written submissions. LFL complained that neither the Court nor the Attorney-General’s Chambers had communicated with LFL directly and asserted that the Court had wrongly assumed that Ms Netto continued to act for it. The Court adjourned the hearing but directed that if LFL wished to make submissions, it must be represented by a Singapore solicitor or a representative holding a duly executed letter of authority from LFL. Written submissions were to be filed and served by 17 June 2022.
On 30 May 2022, LFL indicated it would be represented by its “Advisor”, Mr N Surendran a/l K Nagarajan (“Mr Surendran”). LFL failed to file and serve written submissions via eLitigation by 17 June 2022. It then requested permission to rely on submissions sent by email, explaining that as a non-profit organisation incorporated in Malaysia, it lacked resources to send its representative to Singapore for filing. The Attorney-General’s Chambers did not object. The Court acceded to the request and accepted LFL’s submissions and bundle of authorities despite the filing irregularity. The costs applications were then heard on 27 June 2022, with Mr Yeo appearing in person and LFL appearing via video link through Mr Surendran.
What Were the Key Legal Issues?
The Court identified two main issues. The first was a preliminary procedural question: whether a foreign body corporate such as LFL may appear in person (or through a representative) in costs proceedings in the criminal context, particularly where it was not charged with any offence. This issue was “odd” because LFL should not have been a party to CM 6 in the first place, given the Court’s earlier finding that it lacked standing. The CPC contains detailed provisions on representation of a body corporate charged with an offence, but it does not expressly address representation for a foreign body corporate in costs-only proceedings.
The second issue concerned the substantive threshold for costs orders under s 409 of the CPC. The respondents sought costs against LFL and Mr Yeo. The Court needed to determine whether the statutory prerequisites were satisfied—namely, that the criminal motion was dismissed and that the Court was of the view that the motion was frivolous or vexatious or otherwise an abuse of process. This required the Court to consider the nature of the applicants’ arguments and the procedural posture of the case, including the earlier dismissal findings in the CM 6 and CA 6 judgments.
How Did the Court Analyse the Issues?
On the preliminary procedural issue, the Court began by noting the absence of a direct CPC provision addressing representation of a foreign body corporate in costs proceedings where it was not charged. It then turned to s 6 of the CPC, which provides that where no procedure is provided by the CPC or other law, the procedure “as the justice of the case may require” may be adopted, provided it is not inconsistent with the CPC or other law. The Court also considered s 117 of the CPC, which sets out how a representative may appear for a body corporate when it is charged with an offence. While s 117 was inapplicable because LFL was not charged, the Court treated it as guidance for how representation should be structured to ensure legitimacy and proper authority.
The Court reasoned that it could not be contrary to the CPC to allow LFL’s representative to appear for the costs hearing, provided LFL gave a written statement signed by a director (or other appropriate officer) appointing the representative. The Court therefore required LFL to be represented by a Singapore solicitor or by a representative holding a duly executed letter of authority. LFL complied by indicating that Mr Surendran would be its representative for the costs hearing. This approach ensured procedural fairness while maintaining the integrity of representation requirements in criminal proceedings.
Having resolved the representation issue, the Court turned to the applicable legal principles for costs. The Court focused on s 409 of the CPC, which empowers the court, after dismissing a criminal motion, to order the applicant to pay costs to the respondent if the court is of the opinion that the motion was frivolous or vexatious or otherwise an abuse of process. The Court emphasised that s 409 is not a general costs discretion: it is conditional and requires two prerequisites. First, the criminal motion must have been dismissed. Second, the court must make a positive evaluative finding that the motion falls within one of the disqualifying categories (frivolous, vexatious, or abuse of process).
Although the extract provided does not include the remainder of the Court’s analysis on whether the threshold was met, the structure of the judgment indicates that the Court would have assessed the applicants’ conduct and the substance of their arguments against the earlier findings in the CM 6 and CA 6 judgments. In particular, the Court had already held that the first and second applicants failed to meet the s 394H threshold and had no material to support review. It had also held that LFL lacked standing to participate in CM 6. Those earlier determinations are highly relevant to whether the motion can be characterised as frivolous or an abuse of process for costs purposes. The Court’s analysis would also likely consider whether the applicants persisted with arguments that had already been rejected as lacking merit, and whether the procedural steps taken (including the subsequent judicial review leave application and appeal) were pursued in a manner consistent with the standards expected in criminal litigation.
In addition, the Court addressed the respondents’ application for costs against Mr Yeo personally. While the extract does not show the full reasoning, the Court’s discussion of correspondence, submissions, and LFL’s shifting representation suggests that the Court examined whether counsel’s conduct warranted personal costs. The Court’s approach would have been guided by the principle that personal costs orders against counsel are exceptional and typically require a clear basis, such as improper conduct, unreasonable persistence, or failure to discharge professional obligations in a way that causes unnecessary costs. The Court’s procedural management—such as requiring proper authority for representation and setting deadlines for submissions—also indicates that it considered whether the applicants’ side complied with procedural requirements and whether any non-compliance contributed to additional expense.
What Was the Outcome?
The Court dismissed the criminal motion and the related appeal in the earlier stages, and the present judgment concerns the costs consequences. In the costs hearing, the Court determined whether costs should be ordered against LFL and/or Mr Yeo personally under s 409 of the CPC and related principles governing costs in criminal procedure. The Court’s decision ultimately addresses the respondents’ applications for costs and clarifies the procedural and substantive thresholds for such orders.
Practically, the outcome means that the applicants (and potentially counsel personally, depending on the Court’s final orders) faced costs liability arising from the dismissed proceedings. The judgment also provides guidance for future litigants and counsel on how representation and submissions should be handled in criminal costs proceedings, especially where a foreign body corporate is involved.
Why Does This Case Matter?
This case is significant for two reasons. First, it clarifies how the CPC’s procedural framework can be adapted where it is silent. The Court’s reliance on s 6 to address representation of a foreign body corporate in costs proceedings demonstrates a pragmatic approach: where the CPC provides a model for representation in one context (s 117 for charged bodies corporate), the court may extend analogous safeguards to another context (costs-only participation) to ensure fairness and proper authority.
Second, the decision reinforces the statutory discipline of s 409 of the CPC. Costs orders in criminal motions are not automatic after dismissal. The Court reiterates that the court must be satisfied that the motion was frivolous, vexatious, or an abuse of process. For practitioners, this means that costs risk analysis should be undertaken at an early stage, particularly in applications that attempt to revisit final criminal determinations. Where earlier judgments have already found that threshold requirements were not met or that a party lacked standing, counsel should carefully consider whether further applications are likely to be characterised as an abuse of process.
Finally, the judgment has practical implications for counsel conduct and case management. The Court’s attention to representation authority, filing procedures, and the timing of submissions underscores that procedural missteps can compound costs exposure. Where counsel or an organisation seeks to depart from standard filing channels or representation arrangements, it should do so promptly and with clear documentation to avoid unnecessary procedural complications.
Legislation Referenced
- Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”), s 6 (Where no procedure is provided) [CDN] [SSO]
- Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”), s 117 (Proceedings against body corporate, limited liability partnership, etc.) [CDN] [SSO]
- Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”), s 394H (Threshold for review set down) (context from earlier CM 6 decision) [CDN] [SSO]
- Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”), s 409 (Costs) [CDN] [SSO]
- Rules of Court (Cap 322, R5), Order 53, Rule 1 (as referenced in OS 139)
- Constitution of the Republic of Singapore, Articles 9 and 12 (as referenced in OS 139)
Cases Cited
Source Documents
This article analyses [2022] SGCA 57 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.