Case Details
- Citation: [2022] SGCA 57
- Title: Roslan bin Bakar and others v Public Prosecutor and another appeal
- Court: Court of Appeal of the Republic of Singapore
- Date of Decision: 27 July 2022
- Procedural Context: Criminal Motion No 6 of 2022 and Civil Appeal No 6 of 2022
- Judgment Reserved / Delivered: Judgment reserved; delivered 27 July 2022
- Judges: Judith Prakash JCA, Belinda Ang Saw Ean JAD and Woo Bih Li JAD
- Applicants / Appellants: Roslan bin Bakar; Pausi bin Jefridin; Lawyers for Liberty
- Respondents: Public Prosecutor; Attorney-General
- Related Proceedings: Originating Summons 139 of 2022; CA/CM 6/2022 (“CM 6”); CA/CA 6/2022 (“CA 6”)
- Earlier Criminal Review Decisions: CA/CCA 26/2018 (“CCA 26”) and CA/CCA 59/2017 (“CCA 59”)
- Statutory Provisions Referenced: Criminal Procedure Code 2010 (2020 Rev Ed) (“CPC”); s 394H; s 409; s 6; s 117
- Other Statute Mentioned: Misuse of Drugs Act (context of drug trafficking and death sentences)
- Legal Areas: Criminal Procedure and Sentencing — Compensation and costs; Civil Procedure — Costs
- Judgment Length: 27 pages, 8,097 words
- Key Prior Decisions Cited: [2022] SGCA 18; [2022] SGCA 20; [2022] SGCA 57
Summary
This Court of Appeal decision concerns the costs arising from two successive attempts by Roslan bin Bakar and Pausi bin Jefridin (together, “the first and second applicants”) to set aside their death sentences for drug trafficking. The costs dispute arose after the Court dismissed a criminal motion (CM 6) brought under s 394H of the Criminal Procedure Code (“CPC”) and later dismissed an appeal (CA 6) against the High Court’s refusal of leave to commence judicial review proceedings. The present judgment addresses whether costs could be ordered against the third applicant, Lawyers for Liberty (“LFL”), and whether a foreign body corporate could appear through its own representative for a costs hearing.
The Court held that, although s 117 of the CPC (which permits representation by a “representative” of a body corporate charged with an offence) was inapplicable because LFL was not charged, the Court could nevertheless allow LFL’s representative to appear for the limited purpose of the costs hearing. This was justified by the CPC’s general “no procedure provided” principle in s 6, and by the need to ensure that the costs process could proceed consistently with the CPC and other applicable law.
On the substantive costs question, the Court applied the prerequisites for costs orders under s 409 of the CPC. It emphasised that costs could only be ordered if the criminal motion was dismissed and the Court was of the opinion that the motion was frivolous, vexatious, or otherwise an abuse of process. The Court’s reasoning also addressed the conduct of the parties in relation to representation and submissions, and the practical effect of those procedural choices on the costs analysis.
What Were the Facts of This Case?
The factual background is best understood as a sequence of proceedings aimed at challenging death sentences imposed on the first and second applicants for drug trafficking. The Court had previously dealt with the merits of those attempts in earlier decisions. CM 6, filed on 14 February 2022, was a criminal motion under s 394H of the CPC seeking leave to file an application to review the Court of Appeal’s earlier decisions in CA/CCA 59/2017 (relating to the first applicant) and CA/CCA 26/2018 (relating to the second applicant). The Public Prosecutor opposed CM 6.
At the CM 6 hearing on 15 February 2022, all three applicants were represented by the same counsel, Mr Charles Yeo Yao Hui (“Mr Yeo”), who was then a salaried partner of the firm L F Violet Netto (“LFVN”), the solicitors for the applicants. Mr Yeo also filed an affidavit in support of the application. The Court dismissed CM 6 that same day. In the CM 6 Judgment ([2022] SGCA 18), the Court found that the first and second applicants did not meet the threshold requirements for a review under s 394H and that there was no material to support the review. As for LFL, the Court held that it had no standing to be a party to CM 6 and dismissed the application in respect of LFL as a preliminary matter.
Later that evening, LFVN filed OS 139/2022 on behalf of the first and second applicants. OS 139 sought leave to commence judicial review proceedings. The High Court heard OS 139 on the morning of 16 February 2022 and dismissed it. The first and second applicants then immediately filed CA 6, an appeal against the High Court’s decision. CA 6 was dismissed because the Court found no merit in the arguments advanced in support of the appeal and in the originating application before the Judge. The Court’s reasons are found in Roslan bin Bakar and another v Attorney-General [2022] SGCA 20 (“the CA 6 Judgment”).
After CM 6 and CA 6 were dismissed, the respondents applied for costs orders. They sought costs against LFL and also against Mr Yeo personally. The Court directed parties to file submissions on costs. Correspondence from the Court was addressed to LFVN on behalf of Mr Yeo and LFL. The respondents filed written submissions on 1 March 2022. Mr Yeo filed his written submissions on 29 March 2022, and LFL was not mentioned in those submissions. On 28 April 2022, Mr Yeo informed the Court that LFL would not be making submissions in reply to the respondents’ requests for costs orders against it. Up to that point, neither LFVN nor LFL had informed the Court of any change to LFL’s legal representation; LFVN remained on record as LFL’s solicitors.
However, two days before the costs hearing fixed for 11 May 2022, LFL sought a postponement by letter dated 9 May 2022, signed by LFL’s director, Mr Zaid Malek. LFL complained that the Court and the Attorney-General’s Chambers had “wrongly assumed” that Ms Netto continued to act for it. On 10 May 2022, the Court adjourned the hearing despite LFL’s complaint, and directed that if LFL wished to make submissions on costs, it must be represented by a Singapore solicitor or by a representative holding a duly executed letter of authority from LFL. The Court also directed that LFL’s written submissions be filed and served by 17 June 2022.
On 30 May 2022, LFL indicated that it would be represented by its “Advisor”, Mr N Surendran a/l K Nagarajan (“Mr Surendran”). LFL failed to file and serve its 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 the financial or logistical resources to send its representative to Singapore for filing. The Attorney-General’s Chambers did not object, and the Court accepted the filing of LFL’s submissions despite the procedural irregularity. The costs applications were then heard on 27 June 2022, with Mr Yeo appearing in person and LFL appearing by video link through Mr Surendran.
What Were the Key Legal Issues?
The first key issue was procedural and arose as a preliminary matter: whether a foreign body corporate such as LFL could appear “in person” (or through its own representative) in respect of costs sought against it in the criminal motion context. The Court noted the “oddity” that LFL should not have been a party to CM 6 in the first place, given the Court’s earlier finding that it lacked standing. Nonetheless, because costs were sought against LFL, the Court had to determine how LFL could participate in the costs hearing.
The second key issue concerned the substantive power to order costs under s 409 of the CPC. Section 409 permits the Court, after dismissing a criminal motion, to order the applicant to pay costs on an indemnity basis (or otherwise fixed by the Court) if the Court is of the opinion that the motion was frivolous or vexatious or otherwise an abuse of process. The Court therefore had to assess whether the statutory prerequisites were satisfied and whether the conduct and nature of the CM 6 application justified a costs order against LFL.
Although the excerpt provided is truncated, the judgment’s structure indicates that the Court also considered the interaction between representation, procedural compliance, and the costs analysis—particularly in light of LFL’s shifting position on representation and its failure to comply with filing requirements, followed by requests for indulgence.
How Did the Court Analyse the Issues?
On the preliminary procedural issue, the Court began by observing that there was no direct provision in the CPC addressing the representation of a foreign body corporate that was not charged with an offence. The Court referred to s 117 of the CPC, which sets out the procedure for proceedings against a body corporate charged with an offence. Under s 117(1) and (5), a “representative” may appear for the body corporate, and the representative must be duly appointed by the body corporate, with the appointment evidenced by a written statement signed by a director, manager, secretary, or similar officer. The Court emphasised that s 117 was clearly inapplicable because LFL was not charged with any offence.
Nevertheless, the Court treated s 117 as providing “guidance” on how representation by a body corporate should be approached. The Court then relied on s 6 of the CPC, which addresses situations where no specific procedure has been laid down: where no procedure is provided by the CPC or other law, the justice of the case may require such procedure as is not inconsistent with the CPC or other law. This general provision allowed the Court to adopt a procedure for the costs hearing that was consistent with the CPC’s framework, even if the precise statutory mechanism in s 117 did not apply.
Applying s 6, the Court concluded that it could not be contrary to the CPC to allow LFL’s representative to appear for the costs hearing, provided that LFL gave a written statement signed by its director appointing the representative, if LFL was unable to be represented by counsel. The Court therefore required LFL to be represented either 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.
Turning to the costs power under s 409, the Court set out the statutory text and identified the two prerequisites. First, the relevant court must dismiss a criminal motion. Second, the Court must form the opinion that the motion was frivolous or vexatious or otherwise an abuse of process. The Court’s analysis reflects a careful statutory approach: costs are not automatic upon dismissal; they require an evaluative judgment about the nature of the motion and whether it crossed the threshold of abuse or vexatiousness.
In this case, the Court had already dismissed CM 6 on the merits and on a preliminary basis as to LFL’s standing. The Court’s earlier findings in the CM 6 Judgment ([2022] SGCA 18) and the CA 6 Judgment ([2022] SGCA 20) provided the factual and legal context for assessing whether the applications were frivolous, vexatious, or an abuse of process. The Court’s reasoning also took into account the procedural posture: CM 6 was an attempt to set aside death sentences through a review mechanism under s 394H, and the Court had found that the applicants did not meet the threshold requirements and that there was no material to support a review. For LFL, the Court had found no standing to be a party to CM 6.
While the excerpt does not include the remainder of the judgment, the Court’s approach is clear from the portion provided: it proceeded from statutory prerequisites, then to the assessment of whether the motion warranted costs. It also addressed the conduct surrounding representation and submissions. LFL’s failure to file and serve submissions via the required eLitigation procedure, and its subsequent request to rely on email submissions, were relevant to the Court’s view of procedural propriety. The Court nonetheless acceded to LFL’s request after the Attorney-General’s Chambers did not object, but the episode illustrates the Court’s attention to how costs hearings should be conducted efficiently and fairly.
What Was the Outcome?
The Court’s decision addressed both the preliminary representation issue and the costs question. It held that LFL could participate in the costs hearing through its appointed representative, notwithstanding that LFL was a foreign body corporate and not charged with an offence, because the Court could adopt a procedure under s 6 of the CPC consistent with the CPC’s general framework. This ensured that LFL had a fair opportunity to be heard on costs.
On the substantive costs applications, the Court applied s 409 of the CPC and considered whether the dismissed criminal motion justified a costs order on the basis that it was frivolous, vexatious, or an abuse of process. The practical effect of the outcome was that the respondents’ applications for costs proceeded against the relevant parties, subject to the Court’s determination under the statutory criteria.
Why Does This Case Matter?
This case is significant for practitioners because it clarifies how the CPC’s procedural framework can be adapted in costs hearings involving foreign entities. Although s 117 provides a detailed representation mechanism for body corporates charged with offences, this decision confirms that where no specific procedure exists, s 6 empowers the Court to adopt a procedure that is consistent with the CPC and other law. For law firms and NGOs involved in criminal proceedings, the decision offers practical guidance on how to ensure valid representation for costs hearings, including the importance of properly executed letters of authority and the ability to appear through a duly appointed representative.
Substantively, the decision reinforces the statutory discipline of s 409: costs orders in criminal motions are not merely a consequence of dismissal. The Court must be satisfied that the motion was frivolous, vexatious, or otherwise an abuse of process. This is an important reminder for counsel considering collateral or threshold-challenging applications in high-stakes criminal matters, including review applications under s 394H. Even where an application is dismissed, the Court’s power to award costs depends on an evaluative assessment of the motion’s character and whether it warrants sanction.
Finally, the case highlights the Court’s expectation of procedural compliance in costs proceedings. LFL’s difficulties with filing procedures were addressed with procedural flexibility (the Court accepted email submissions), but the Court’s management of representation and submissions underscores that costs hearings are not merely administrative: they require orderly participation so that the Court can assess costs efficiently and fairly.
Legislation Referenced
- Criminal Procedure Code 2010 (2020 Rev Ed) — s 6 (Where no procedure is provided)
- Criminal Procedure Code 2010 (2020 Rev Ed) — s 117 (Proceedings against body corporate, limited liability partnership, etc.)
- Criminal Procedure Code 2010 (2020 Rev Ed) — s 394H (Review set down; threshold requirements)
- Criminal Procedure Code 2010 (2020 Rev Ed) — s 409 (Costs)
- Misuse of Drugs Act (context of drug trafficking convictions and death sentences)
Cases Cited
- [2022] SGCA 18 — Roslan bin Bakar & anor v Public Prosecutor (CM 6 Judgment)
- [2022] SGCA 20 — Roslan bin Bakar and another v Attorney-General (CA 6 Judgment)
- [2022] SGCA 57 — Roslan bin Bakar and others v Public Prosecutor and another appeal (present judgment)
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.