Case Details
- Citation: [2022] SGCA 20
- Title: Roslan bin Bakar & Anor v Attorney-General
- Court: Court of Appeal of the Republic of Singapore
- Date of Decision: 9 March 2022
- Civil Appeal No: Civil Appeal No 6 of 2022
- Lower Court / Originating 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
- Related Criminal/Appeal References: CA/CCA 26/2018; CA/CCA 59/2017; CA/CCA 61/2017
- Appellants / Plaintiffs: (1) Roslan bin Bakar; (2) Pausi bin Jefridin
- Respondent / Defendant: Attorney-General
- Judges (Court of Appeal): Judith Prakash JCA, Belinda Ang Saw Ean JAD and Woo Bih Li JAD
- Prior Court of Appeal Decision Mentioned: Roslan bin Bakar and others v Public Prosecutor [2022] SGCA 18 (“CM 6”)
- Earlier Court of Appeal Decisions Affirming Death Sentences: CA/CCA 59 of 2017 (“CCA 59”); CA/CCA 26 of 2018 (“CCA 26”)
- Judgment Length: 15 pages, 4,204 words
- Legal Area: Administrative Law — Judicial Review — Leave
Summary
In Roslan bin Bakar & Anor v Attorney-General ([2022] SGCA 20), the Court of Appeal dismissed the appellants’ attempt to obtain leave to commence judicial review proceedings aimed at preventing the execution of their death sentences. The appellants, Roslan bin Bakar and Pausi bin Jefridin, had previously had their death sentences affirmed by the Court of Appeal in earlier criminal appeals (CCA 59 and CCA 26). They then sought to re-open the execution question through a judicial review application in the High Court, which was dismissed; they appealed to the Court of Appeal and again failed to obtain relief.
The core of the appellants’ judicial review case was that executing them would breach their constitutional rights under Articles 9(1) and 12(1) of the Constitution, because they allegedly suffered from mental disability or substantial mental impairment associated with low IQ. They also sought declarations and prohibitory orders, including a stay pending the outcome of another related case involving similar issues (the case of Nagaenthran a/l K Dharmalingam). The Court of Appeal held that the application did not meet the threshold requirements for leave to commence judicial review, particularly the requirement that the materials disclose an arguable or prima facie case of reasonable suspicion in favour of the remedies sought.
What Were the Facts of This Case?
The appellants were convicted of drug trafficking offences and were sentenced to death. Their death sentences were affirmed by the Court of Appeal in CCA 59 and CCA 26. The Court of Appeal’s earlier decisions were part of a broader procedural history in which the appellants had attempted to challenge their capital sentences through criminal review mechanisms. In particular, the appellants had filed CM 6, a criminal motion seeking to set aside their capital sentences. That earlier attempt was dismissed, and the Court of Appeal’s reasons in CM 6 formed an important backdrop to the later judicial review application.
After the Court of Appeal dismissed CM 6, the appellants faced an urgent execution timeline. The carrying out of their death sentences had been scheduled for 16 February 2022. On 15 February 2022, the appellants appeared before the Court of Appeal again and sought an order granting them leave to ask the Court of Appeal to review two of its earlier decisions. That application was dismissed, with the Court of Appeal indicating it would provide full grounds later (which were ultimately provided in the present decision).
Following the dismissal on 15 February 2022, the appellants’ counsel indicated that, since they could not satisfy the statutory requirements for commencing criminal review proceedings (as referenced in the judgment in connection with s 394H of the Criminal Procedure Code (Cap 68, 2012 Rev Ed)), they would instead file an application for judicial review. That same evening, the firm of LF Violet Netto filed an originating summons, HC/OS 139 of 2022 (“OS 139”), in the High Court. The OS 139 application sought leave to commence judicial review proceedings, with the hearing taking place on the morning of 16 February 2022.
The High Court Judge dismissed OS 139. The appellants then filed an appeal to the Court of Appeal and had it heard on the same afternoon, after which the Court of Appeal dismissed the appeal. The present judgment explains why the judicial review leave application failed at the threshold stage. Importantly, the Court of Appeal observed that the affidavit supporting OS 139 contained no factual material about the appellants’ alleged mental impairment, and that the application’s arguments were largely repetitive of those already raised in CM 6, with only minor variations (including an IQ reference for the second appellant that was not present in the earlier criminal motion papers).
What Were the Key Legal Issues?
The first key issue was procedural and threshold in nature: whether the appellants satisfied the requirements for leave to commence judicial review under Order 53, Rule 1 of the Rules of Court (Cap 322, R5). The High Court Judge had identified three requirements: (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 dispute centred on the third requirement.
The second key issue was substantive, though addressed at the leave stage: whether the appellants’ proposed constitutional and legal arguments—particularly that execution would breach Articles 9(1) and 12(1) due to mental disability or low IQ—were capable of meeting the “reasonable suspicion” threshold. This required the Court of Appeal to assess whether the appellants’ contentions were supported by any relevant legal principle in Singapore law, and whether they were grounded in any factual material capable of supporting the requested declarations and prohibitory orders.
A related issue was whether the Court should defer consideration of the application pending the outcome of another pending case (Nagaenthran). The appellants suggested that their application should not be heard until the Court of Appeal dealt with that case, implying that the pending decision might clarify or change the legal position. The Court of Appeal had to decide whether such speculation could justify granting leave for judicial review.
How Did the Court Analyse the Issues?
The Court of Appeal began by placing the judicial review application in context. It emphasised that this was not the first time the appellants had sought to challenge their capital sentences or the execution of those sentences. The Court had already affirmed their death sentences in earlier criminal appeals. Further, the appellants had already attempted to set aside their capital sentences through CM 6, which had been dismissed. The Court therefore treated the judicial review application as an attempt to obtain, through a different procedural route, essentially the same relief that had already been refused.
On the leave requirements, the Court of Appeal agreed with the High Court Judge that the decisive question was whether the materials disclosed an arguable or prima facie case of reasonable suspicion. The Court scrutinised the affidavit evidence supporting OS 139 and found a significant deficiency: the affidavit contained no factual material whatsoever relating to the alleged mental impairment of the appellants. The Court also noted that the affidavit did not support the prayer for a declaration that execution would breach an internal prison policy not to execute mentally disabled persons. In other words, the application lacked evidential foundation at the threshold stage.
Substantively, the Court of Appeal addressed the appellants’ central legal theory. Counsel for the appellants, Mr Yeo, advanced a prohibition-based argument: that execution would be an unlawful act because the appellants allegedly had low IQ and mental disability. The Court of Appeal recorded that counsel confirmed he was not challenging the re-sentencing decisions in which it had been held that neither appellant suffered from an abnormality of mind within the meaning of s 33B(3) of the Misuse of Drugs Act. This concession mattered because it limited the scope of the appellants’ challenge: they could not re-litigate the statutory abnormality-of-mind findings already made in the criminal sentencing context.
The Court of Appeal then addressed the absence of any Singapore legal rule that categorically prohibits execution based solely on IQ thresholds. Counsel conceded there was no law in Singapore that categorically prohibits execution of a person with an IQ below 70. He also could not identify any rule of international law or treaty provision containing such a prohibition. The Court therefore treated the appellants’ argument as speculative and contingent on a hoped-for future change in the law, particularly after the Court of Appeal’s forthcoming decision in Nagaenthran. The Court rejected this approach, stating that it could not accept an argument premised on a possible change in the law after a different case was heard.
In addition to the lack of legal authority for a categorical IQ-based prohibition, the Court of Appeal emphasised the factual findings already made by the courts. It noted that the appellants had been found, after evidence from psychiatrists and psychologists engaged by both the appellants and the Public Prosecutor, as well as the appellants’ 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 that Pausi was able to carry out his role, including transporting drugs from Malaysia to Singapore and delivering them without difficulty. This reasoning undermined the appellants’ attempt to recast their case as one of mental incapacity that would render execution unlawful.
Finally, the Court of Appeal addressed the repetitive nature of the arguments. It observed that the four reasons stated in the affidavit supporting OS 139 were almost identical to the four grounds in the motion papers in CM 6. The only material difference was a sentence in one paragraph referring to Pausi’s IQ assessment. The Court’s analysis suggests that the judicial review application was not presenting genuinely new material or a new legal basis; rather, it was re-packaging earlier arguments that had already failed. This supported the conclusion that there was no reasonable suspicion that the application would succeed.
What Was the Outcome?
The Court of Appeal dismissed the appeal against the High Court’s dismissal of OS 139. In practical terms, the appellants were not granted leave to commence judicial review proceedings seeking declarations and prohibitory orders to prevent execution of their death sentences.
The Court of Appeal’s dismissal meant that the appellants’ constitutional and unlawfulness arguments—based on alleged mental disability and low IQ—did not clear the threshold for judicial review leave. The Court also declined to stay execution pending the outcome of Nagaenthran, treating the request as speculative and unsupported by the necessary evidential and legal foundation.
Why Does This Case Matter?
This decision is significant for administrative law and capital case practice because it underscores the strict threshold requirements for leave to commence judicial review. Even where the subject matter is grave—execution of a death sentence—the Court will not lower the evidential and legal bar. Applicants must show that the materials disclose an arguable or prima facie case of reasonable suspicion. Where the affidavit evidence is devoid of factual support and the legal theory lacks a basis in Singapore law, leave will be refused.
For practitioners, the case also illustrates the limits of using judicial review as a procedural “second bite” after criminal review avenues have been exhausted or failed. The Court’s reasoning indicates that repetition of arguments already considered in earlier proceedings, without new factual material or a genuinely distinct legal basis, will not satisfy the leave threshold. This is particularly relevant in urgent execution contexts, where time pressure may tempt applicants to pursue alternative procedural routes.
Finally, the decision clarifies that speculative reliance on possible future changes in law—especially when tied to another pending case—will not suffice. The Court required a present legal and factual foundation for the requested constitutional declarations and prohibitory orders. The case therefore provides guidance on how courts may treat arguments grounded in international law or comparative jurisprudence when Singapore law does not currently contain the asserted prohibition.
Legislation Referenced
- Rules of Court (Cap 322, R5), Order 53, Rule 1
- Criminal Procedure Code (Cap 68, 2012 Rev Ed), s 394H [CDN] [SSO]
- Misuse of Drugs Act, s 33B(3) [CDN] [SSO]
- Constitution of the Republic of Singapore, Articles 9 and 12
Cases Cited
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.