Case Details
- Citation: [2021] SGHC 270
- Title: Syed Suhail bin Syed Zin and others v Attorney-General
- Court: High Court of the Republic of Singapore (General Division)
- Decision Date: 30 November 2021
- Case Number: Originating Summons No 664 of 2021
- Judge: Ang Cheng Hock J
- Coram: Ang Cheng Hock J
- Plaintiff/Applicant: Syed Suhail bin Syed Zin and others
- Defendant/Respondent: Attorney-General
- Counsel for Plaintiffs/Applicants: Ravi s/o Madasamy (K K Cheng Law LLC)
- Counsel for Defendant/Respondent: Tan Chee Meng SC, Leo Zhen Wei Lionel, Deya Shankar Dubey and Vishi Sundar (WongPartnership LLP)
- Legal Area: Civil Procedure — Costs
- Key Procedural Issue: Personal liability of counsel for costs under O 59 r 8(1) of the Rules of Court
- Statutes Referenced: Misuse of Drugs Act; Prisons Act; Prisons Regulations
- Related/Contextual Cases: Gobi a/l Avedian and another v Attorney-General and another appeal [2020] 2 SLR 883; Syed Suhail bin Syed Zin v Public Prosecutor [2021] 1 SLR 159; Iskandar bin Rahmat v Public Prosecutor [2021] SGCA 89; Munshi Rasal v Enlighten Furniture Decoration Co Pte Ltd [2021] 1 SLR 1277; Tan King Hiang v United Engineers (Singapore) Pte Ltd [2005] 3 SLR(R) 529; Bintai Kindenko Pte Ltd v Samsung C&T Corp [2018] 2 SLR 532; Ridehalgh v Horsefield [1994] Ch 205
- Judgment Length: 12 pages, 7,126 words
Summary
This decision concerns costs, specifically whether the High Court should order that costs be borne personally by counsel rather than by the litigant. The underlying dispute arose from prisoner-related proceedings in which the Attorney-General’s chambers had previously received and used copies of prisoners’ correspondence from the Singapore Prison Service (SPS). After the plaintiffs withdrew an originating summons seeking leave to commence judicial review, the only live issue was costs, and the defendant sought a personal costs order against the plaintiffs’ counsel.
Ang Cheng Hock J applied the structured approach endorsed by the Court of Appeal for personal costs orders under O 59 r 8(1) of the Rules of Court. The judge concluded that counsel had acted improperly, unreasonably, or negligently in a manner that caused unnecessary costs, and that it was just in all the circumstances to order counsel to compensate the other party for the whole or part of the costs. The court therefore made a personal costs order against counsel.
What Were the Facts of This Case?
The plaintiffs were prisoners at Changi Prison Complex. With one exception, they had been convicted of drug trafficking under the Misuse of Drugs Act and sentenced to death. The fifth plaintiff had been convicted of murder under the Penal Code and also sentenced to death. The second plaintiff’s death sentence was later set aside following a successful criminal review application in the Court of Appeal.
The factual and legal background to the plaintiffs’ broader litigation involved the handling of prisoners’ correspondence. In earlier appeals (including Gobi a/l Avedian and another v Attorney-General and another appeal [2020] 2 SLR 883 (“Gobi”)), it was revealed that the defendant’s chambers had requested and received copies of correspondence belonging to the second and third plaintiffs from the SPS. The Court of Appeal held that there was no positive legal right for the SPS to forward private correspondence to the defendant’s chambers. The SPS could only disclose such correspondence if the prisoner consented or if a court order was obtained. Disclosure without such basis was impermissible under the Prisons Regulations made pursuant to the Prisons Act.
Importantly, the Court of Appeal in Gobi accepted that the defendant’s chambers had destroyed copies of the correspondence discovered in those proceedings and characterised the unauthorised disclosure as an “oversight” rather than an attempt to gain unfair advantage. Nonetheless, the legal controversy about the propriety of accessing prisoners’ correspondence remained a recurring theme across subsequent proceedings.
In the criminal review proceedings concerning the first plaintiff’s conviction (Syed Suhail bin Syed Zin v Public Prosecutor [2021] 1 SLR 159 (“Syed Suhail”)), the prosecution disclosed that its file contained copies of personal correspondence, including legally privileged material, sent to or received by the first plaintiff and forwarded to the defendant’s chambers by the SPS. The first plaintiff sought to disqualify the entire corps of officers at the defendant’s chambers from acting for the Public Prosecutor. That application was dismissed by the Court of Appeal after it obtained confirmation from the DPP that he had not been involved in the earlier unsuccessful appeal and did not have sight of the contents of the first plaintiff’s personal correspondence.
Before the Court of Appeal’s decision in Syed Suhail was issued, the plaintiffs also commenced civil proceedings concerning prisoners’ correspondence. On 1 October 2020, Originating Summons No 975 of 2020 (“OS 975”) was filed seeking pre-action discovery and leave to serve pre-action interrogatories, aimed at identifying persons involved in handling the plaintiffs’ correspondence and the defendant’s chambers’ requests for copies of correspondence between prisoners and their lawyers and families, as well as correspondence forwarded by the SPS.
Against this backdrop, the present case concerned Originating Summons No 664 of 2021 (“OS”). OS was fixed for hearing before Ang Cheng Hock J on 28 October 2021. It was an application for leave to commence judicial review proceedings, with the Attorney-General named as the defendant. At the start of the hearing, counsel for the plaintiffs, Mr Ravi s/o Madasamy, informed the court that he wished to withdraw the application in its entirety. Counsel for the defendant, Mr Tan Chee Meng SC, expressed no objection to the withdrawal.
With the substantive application withdrawn, the usual costs position would have been that the plaintiffs bear the defendant’s costs. However, the defendant’s counsel indicated that the defendant had instructed him to seek a personal costs order against Mr Ravi. Mr Ravi protested, describing the request as a “threat” and indicating an intention to report Mr Tan to the Law Society for unprofessional conduct. The judge adjourned to allow the defendant to file written submissions and required the plaintiffs’ counsel to file reply submissions. The judge also directed the defendant to file an affidavit exhibiting the correspondence referred to by both counsel during oral submissions on the personal costs issue.
What Were the Key Legal Issues?
The principal legal issue was whether the court should depart from the ordinary rule that costs follow the event and order that costs be paid personally by counsel. This required the court to interpret and apply O 59 r 8(1) of the Rules of Court, which empowers the court to order costs to be paid by counsel personally where costs have been incurred unreasonably or improperly, or where costs have been wasted due to a failure to conduct proceedings with reasonable competence and expedition.
A second issue was the application of the Court of Appeal’s framework for personal costs orders. In Munshi Rasal v Enlighten Furniture Decoration Co Pte Ltd [2021] 1 SLR 1277, the Court of Appeal endorsed a three-step test to guide the exercise of discretion. The court needed to determine: (1) whether counsel acted improperly, unreasonably, or negligently; (2) whether such conduct caused the other party to incur unnecessary costs; and (3) whether, in all the circumstances, it was just to order counsel to compensate the other party for the whole or any part of the costs.
Finally, the court had to consider what conduct qualifies as “improper, unreasonably or negligently” in the context of counsel’s professional responsibilities. The judge relied on guidance from Tan King Hiang v United Engineers (Singapore) Pte Ltd [2005] 3 SLR(R) 529 and, by endorsement, the English Court of Appeal’s reasoning in Ridehalgh v Horsefield [1994] Ch 205, which provided interpretive guidance for those terms.
How Did the Court Analyse the Issues?
Ang Cheng Hock J began by emphasising the general principle that costs follow the event: the successful party is normally entitled to costs, and those costs are usually borne by the litigant rather than counsel. The court recognised that personal costs orders are exceptional and should not be imposed lightly. The rationale is that it is the litigant who benefits from the pursuit or defence of the claim, and therefore it is generally the litigant who should bear the financial consequences of unsuccessful litigation.
Nevertheless, the judge noted that O 59 r 8(1) permits personal liability where justice demands it. The court therefore adopted the three-step test from Munshi Rasal. The analysis required the judge to identify counsel’s conduct, assess whether it fell within “improper, unreasonably or negligently”, determine whether that conduct caused unnecessary costs, and then decide whether a personal costs order was just in all the circumstances.
On the first step, the judge reviewed the meaning of “improper, unreasonably or negligently”. The terms are not susceptible to precise definition, but Tan King Hiang endorsed Ridehalgh v Horsefield’s interpretive guidance. “Improper” includes conduct that would justify serious professional penalties such as disbarment or striking off, and also conduct regarded as improper according to professional consensus even if it does not breach the letter of a professional code. “Unreasonable” covers vexatious conduct designed to harass rather than advance resolution of the case, and the court observed that excessive zeal does not immunise counsel if the conduct is unreasonable. “Negligent” was understood in an untechnical sense as failure to act with the competence reasonably expected of ordinary members of the profession.
The judge further clarified that these categories are not mutually exclusive and that there is no exhaustive test. Instead, the court must consider the facts and counsel’s conduct in context. The judge drew support from precedents where personal costs orders were considered appropriate. In Bintai Kindenko Pte Ltd v Samsung C&T Corp [2018] 2 SLR 532, the Court of Appeal indicated that personal costs may be appropriate where a solicitor advances a wholly disingenuous case or files utterly ill-conceived applications despite knowing better. In Iskandar bin Rahmat v Public Prosecutor [2021] SGCA 89, the Court of Appeal stressed counsel’s professional responsibility to ensure that suits and applications have a proper legal basis, and warned that an application entirely devoid of legal foundation filed recklessly may lead to adverse costs consequences for the applicant or even counsel.
Applying these principles, Ang Cheng Hock J treated the present case as one where counsel’s conduct warranted scrutiny. The procedural posture was unusual: the plaintiffs withdrew the judicial review leave application at the outset of the hearing. While withdrawal itself is not automatically improper, the court’s focus was on whether counsel’s decision to bring and maintain the OS (until the hearing) involved conduct that was improper, unreasonable, or negligent, and whether it caused the defendant to incur unnecessary costs.
The judge also addressed the need for procedural fairness in personal costs applications. He had adjourned the matter to allow written submissions and required an affidavit to exhibit correspondence referred to by both sides. This ensured counsel had a chance to show cause why a personal costs order was unwarranted. The court then considered both sets of submissions before concluding that a personal costs order was appropriate.
What Was the Outcome?
The High Court made a personal costs order against Mr Ravi. The practical effect was that, notwithstanding the plaintiffs’ withdrawal of the OS, counsel personally became liable for the defendant’s costs (at least in whole or in part, as determined by the court’s order). This shifted the financial burden away from the litigants and onto counsel, reflecting the court’s view that counsel’s conduct fell within the exceptional circumstances contemplated by O 59 r 8(1).
In addition to the costs consequence, the decision underscores that counsel’s professional responsibilities extend beyond advocacy to ensuring that applications are properly grounded and competently pursued through to a hearing, even where the matter ultimately does not proceed.
Why Does This Case Matter?
Syed Suhail bin Syed Zin v Attorney-General [2021] SGHC 270 is significant for practitioners because it illustrates how Singapore courts operationalise the exceptional power to order personal liability for costs. While costs orders against litigants are routine, personal costs orders against counsel remain rare. This case demonstrates that rarity does not mean impossibility: where counsel’s conduct is found to be improper, unreasonable, or negligent, and where unnecessary costs are caused, the court will intervene to protect the integrity of the civil justice process.
For lawyers, the decision is also a reminder of the professional duty to ensure that applications have a proper legal basis and are pursued with reasonable competence and expedition. The court’s reliance on Iskandar bin Rahmat and the Ridehalgh/Tan King Hiang interpretive guidance signals that the threshold for “improper/unreasonable/negligent” is assessed against professional standards and the availability of reasonable explanations, not merely against whether the application succeeds.
From a litigation strategy perspective, the case highlights that withdrawing an application at the hearing stage does not necessarily avoid adverse costs consequences. If the court concludes that the application should not have been brought or maintained, or that counsel’s conduct wasted costs, the court may still impose personal liability. Practitioners should therefore conduct careful legal basis checks, consider procedural efficiency, and maintain clear documentation of decisions and communications relevant to costs.
Legislation Referenced
- Rules of Court (Cap 322, R 5, 2014 Rev Ed), O 59 r 8(1)
- Prisons Act (Cap 247, 2000 Rev Ed), s 84(1)
- Prisons Regulations (Cap 247, Rg 2, 2002 Rev Ed)
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed)
Cases Cited
- Munshi Rasal v Enlighten Furniture Decoration Co Pte Ltd [2021] 1 SLR 1277
- Tan King Hiang v United Engineers (Singapore) Pte Ltd [2005] 3 SLR(R) 529
- Ridehalgh v Horsefield [1994] Ch 205
- Bintai Kindenko Pte Ltd v Samsung C&T Corp [2018] 2 SLR 532
- Iskandar bin Rahmat v Public Prosecutor [2021] SGCA 89
- Gobi a/l Avedian and another v Attorney-General and another appeal [2020] 2 SLR 883
- Syed Suhail bin Syed Zin v Public Prosecutor [2021] 1 SLR 159
- [2021] SGCA 89
- [2021] SGHC 270
Source Documents
This article analyses [2021] SGHC 270 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.