Case Details
- Citation: [2022] SGCA 20
- Title: Roslan bin Bakar and another v Attorney-General
- Court: Court of Appeal of the Republic of Singapore
- Civil Appeal No: Civil Appeal No 6 of 2022
- Related High Court matter: HC/OS 139 of 2022
- Procedural basis: Order 53, Rule 1 of the Rules of Court (Cap 322, R5)
- Constitutional provisions invoked: Articles 9 and 12 of the Constitution of the Republic of Singapore
- Judicial review context: Leave to commence judicial review proceedings
- Date of Court of Appeal hearing (first mention in extract): 16 February 2022
- Date of Court of Appeal decision: 9 March 2022
- Judges: Judith Prakash JCA, Belinda Ang Saw Ean JAD and Woo Bih Li JAD
- Appellants/Plaintiffs: (1) Roslan bin Bakar (2) Pausi bin Jefridin
- Respondent/Defendant: Attorney-General
- Legal area: Administrative Law — Judicial review
- Statutes referenced: Criminal Procedure Code (Cap 68, 2012 Rev Ed); Misuse of Drugs Act
- Key statutory provisions mentioned in extract: s 394H of the Criminal Procedure Code; s 33B(3) of the Misuse of Drugs Act
- Cases cited (as provided): [2022] SGCA 18; [2022] SGCA 20 (this case); Pitman & Anr v State of Trinidad and Tobago UKPC 6 (2017); State v Taanorwa (Zimbabwe); S v Sulpisio (unreported)
- Judgment length: 15 pages, 4,084 words
Summary
Roslan bin Bakar and another v Attorney-General [2022] SGCA 20 concerned an urgent attempt by two death-row drug offenders to obtain leave to commence judicial review proceedings to prevent the execution of their sentences. The Court of Appeal dismissed the appeal against the High Court’s refusal of leave, holding that the applicants failed to establish an arguable case giving rise to a reasonable suspicion that the remedies sought could succeed.
The applicants’ central contention was that executing them would breach their constitutional rights under Articles 9 and 12 of the Constitution because they allegedly suffered from mental disability evidenced by low IQ scores. They also sought to rely on an asserted “customary international law” prohibition against executing persons with IQ below a threshold, and on an alleged internal prison policy not to execute mentally disabled persons. The Court of Appeal rejected these submissions as speculative and unsupported by evidence, and emphasised that the applicants had already been found by the courts—after psychiatric and psychological evidence—that they were able to function in ways no different from persons with higher IQ levels in relation to the drug offences.
What Were the Facts of This Case?
The appellants, Roslan bin Bakar and Pausi bin Jefridin, were convicted of drug trafficking and sentenced to death. Their sentences were affirmed by the Court of Appeal in earlier decisions: CA/CCA 59 of 2017 (“CCA 59”) and CA/CCA 26 of 2018 (“CCA 26”). Those decisions related to the re-sentencing framework under the Misuse of Drugs Act, including whether the offenders suffered from an “abnormality of mind” within the meaning of s 33B(3). In the extract, counsel for the appellants confirmed that he was not challenging those re-sentencing decisions.
In the days leading up to the scheduled execution, the appellants sought further legal relief. They had previously filed CM 6, an application intended to set aside their capital sentences. That earlier attempt was dismissed by the Court of Appeal in Roslan bin Bakar and others v Public Prosecutor [2022] SGCA 18 (“CM 6”). The urgency in the present case stemmed from the fact that the appellants’ execution was scheduled for 16 February 2022, and they sought to obtain judicial review leave on 16 February 2022 itself.
At the hearing of the Court of Appeal on 15 February 2022, the appellants applied for leave to ask the Court of Appeal to review two earlier decisions. That application was dismissed, and the Court of Appeal indicated that the reasons were set out in CM 6. During that hearing, counsel for the appellants, Mr Yeo Yao Hui Charles of LF Violet Netto (“LFVN”), was informed that the appellants could not satisfy the statutory requirements for commencing criminal review proceedings under s 394H of the Criminal Procedure Code. In response, counsel indicated that the appellants would file an application for judicial review instead.
That same evening, LFVN filed an originating summons in the High Court, HC/OS 139 of 2022 (“OS 139”), seeking leave to commence judicial review proceedings. The High Court Judge dismissed OS 139 on the morning of 16 February 2022. The appellants then filed and pursued the present appeal in the Court of Appeal on the same afternoon, which was heard and dismissed. The Court of Appeal’s grounds in this decision focus on the leave requirement for judicial review and the absence of evidential and legal foundation for the constitutional and related claims advanced.
What Were the Key Legal Issues?
The principal legal issue was whether the appellants met the threshold requirements for leave to commence judicial review under Order 53, Rule 1 of the Rules of Court. In particular, the dispute in the High Court and on appeal centred on the third requirement: whether the materials before the court disclosed an arguable or prima facie case of reasonable suspicion that the remedies sought could be granted.
Within that leave threshold, the Court of Appeal had to assess whether the appellants’ proposed grounds—breach of Articles 9 and 12 of the Constitution, unlawfulness based on an alleged internal prison policy, and unlawfulness based on alleged customary international law—were legally and factually tenable. The Court also had to consider whether the applicants’ arguments were speculative, unsupported by evidence, or inconsistent with findings already made in the earlier criminal proceedings.
A further issue, reflected in the Court of Appeal’s reasoning, was how the judicial review route should be used in a context where the applicants were not challenging the underlying re-sentencing decisions that had already addressed mental impairment. The Court examined whether judicial review could be used to re-litigate or indirectly attack issues already determined, particularly where the applicants’ factual basis was thin and their legal basis depended on hoped-for future changes to the law.
How Did the Court Analyse the Issues?
The Court of Appeal began by setting out the procedural posture and the leave standard. The High Court Judge had identified three requirements for leave to commence judicial review: (1) the subject matter must be susceptible to judicial review; (2) the applicants must have sufficient interest; and (3) the materials must disclose an arguable or prima facie case of reasonable suspicion in favour of granting the remedies sought. On appeal, the Court of Appeal agreed that only the third requirement was in dispute.
In analysing the third requirement, the Court focused on the fundamental factual assertion underpinning the judicial review application: that the appellants suffered from an “abnormality of mind” or mental impairment due to low IQ scores. The Court of Appeal noted that counsel clarified in court that the constitutional ground was predicated on the submission that executing persons with low IQ would violate Articles 9 and 12. This submission, as framed, relied on the idea that customary international law contained a prohibition against such execution and that this should be part of Singapore law.
The Court of Appeal rejected this approach on multiple grounds. First, counsel conceded that there was no law in Singapore that categorically prohibited execution of persons with an IQ below a particular threshold. Second, counsel was unable to identify any rule of international law or treaty provision containing such a categorical prohibition. The Court therefore treated the argument as lacking a concrete legal foundation in existing domestic or international sources.
Third, the Court characterised the argument as speculative. Counsel ultimately agreed that his contention was based on a possible change in the law after the Court of Appeal heard another pending case involving Nagaenthran a/l K Dharmalingam. The Court of Appeal held that this was an entirely speculative argument that could not satisfy the leave threshold. In other words, the applicants were not showing that the law as it stood supported their proposed constitutional interpretation; rather, they were hoping for future developments.
Beyond the legal weakness, the Court of Appeal emphasised the evidential context. It stated that the applicants had been found by the courts—after hearing evidence from psychiatrists and psychologists engaged by both the defence and the Public Prosecutor, as well as the applicants’ own evidence—to be able to function in ways no different from people with higher IQ levels in relation to the drug offences. The Court highlighted that Roslan was found to be the central figure in the drug transaction, and Pausi was able to carry out his role in transporting and delivering drugs from Malaysia to Singapore without difficulty. These findings undermined the factual premise that low IQ, standing alone, rendered execution unlawful.
The Court also addressed the internal prison policy argument. The judicial review prayers included a declaration that execution would breach Singapore Prisons’ internal policy not to execute mentally disabled persons. However, the Court observed that the affidavit supporting OS 139 contained no factual material to support this alleged policy breach. The absence of evidence meant the claim could not be said to disclose a reasonable suspicion of success.
Finally, the Court compared the judicial review grounds with the earlier CM 6 motion papers. It observed that the four “reasons” in the affidavit were almost identical to the four grounds previously advanced for leave to commence criminal review proceedings, with only a minor difference relating to IQ assessment for Pausi. This reinforced the Court’s view that the judicial review application was not introducing a genuinely new and legally grounded basis, but rather repackaging arguments that had already failed at the criminal review stage.
What Was the Outcome?
The Court of Appeal dismissed the appeal and upheld the High Court’s refusal of leave to commence judicial review in OS 139. The Court concluded that there were no merits at all in the appellants’ contentions for the reasons given by the Judge below.
Practically, this meant that the appellants did not obtain the prohibitory orders or declarations they sought to prevent execution, and the judicial review route did not provide a basis to stay or halt the execution of their death sentences on the asserted constitutional and policy grounds.
Why Does This Case Matter?
Roslan bin Bakar v Attorney-General [2022] SGCA 20 is significant for administrative law and constitutional litigation because it illustrates the strict threshold for obtaining leave to commence judicial review, particularly in urgent contexts involving capital punishment. The decision underscores that applicants must show more than a theoretical or speculative legal argument; they must present an arguable case with a factual foundation capable of supporting reasonable suspicion that the requested relief could be granted.
For practitioners, the case is also a cautionary example of how judicial review cannot be used as a substitute for statutory criminal review mechanisms or as an indirect way to re-litigate issues already determined in prior criminal proceedings. The Court’s emphasis that the applicants were not challenging the re-sentencing decisions, combined with its reliance on earlier findings about mental functioning, demonstrates that courts will scrutinise whether judicial review is being used to circumvent procedural and substantive constraints.
Finally, the decision highlights the evidential burden in constitutional and international-law arguments. Where counsel cannot identify an existing domestic legal prohibition or a specific international treaty or customary rule with the claimed content, and where the supporting affidavit lacks factual material (including for alleged internal policies), the leave threshold will not be met. The case therefore reinforces disciplined pleading and evidential preparation for urgent judicial review applications.
Legislation Referenced
- Criminal Procedure Code (Cap 68, 2012 Rev Ed) — s 394H
- Misuse of Drugs Act — s 33B(3)
- Rules of Court (Cap 322, R5) — Order 53, Rule 1
- Constitution of the Republic of Singapore — Articles 9 and 12
Cases Cited
- [2022] SGCA 18 (Roslan bin Bakar and others v Public Prosecutor) (“CM 6”)
- CA/CCA 59 of 2017 (“CCA 59”)
- CA/CCA 26 of 2018 (“CCA 26”)
- Pitman & Anr v State of Trinidad and Tobago UKPC 6 (2017) (Privy Council)
- State v Taanorwa (Supreme Court of Zimbabwe; quoting Beadle CJ in S v Sulpisio (unreported))
- Nagaenthran a/l K Dharmalingam (pending Court of Appeal proceedings referenced in the extract)
Source Documents
This article analyses [2022] SGCA 20 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.