Case Details
- Citation: [2021] SGHC 274
- Title: Syed Suhail bin Syed Zin and others v Attorney-General
- Court: High Court of the Republic of Singapore (General Division)
- Decision Date: 02 December 2021
- Judges: Valerie Thean J
- Coram: Valerie Thean J
- Case Number: Originating Summons No 825 of 2021
- Tribunal/Court: General Division of the High Court
- Plaintiffs/Applicants: Syed Suhail bin Syed Zin and others (17 inmates of Changi Prison of Malay ethnicity)
- Defendant/Respondent: Attorney-General
- Parties (notable): The 11th plaintiff was a Malaysian national; the remaining plaintiffs were Singapore nationals
- Counsel for Plaintiffs: Ravi s/o Madasamy and Cheng Kim Kuan (K K Cheng Law LLC)
- Counsel for Defendant: Deputy Attorney-General Tai Wei Shyong, Ng Yong Kiat Francis SC, Lim Siew Mei Regina and Victoria Ting Yue Xin (Attorney-General’s Chambers)
- Legal Areas: Civil Procedure — Amendments; Civil Procedure — Witnesses; Constitutional Law — Attorney-General; Constitutional Law — Discrimination
- Statutes Referenced: Criminal Procedure Code; Government Proceedings Act; Legal Profession Act; Misuse of Drugs Act (Cap 185, 2008 Rev Ed)
- Constitutional Provisions Referenced: Article 9(1); Article 12(1); Article 35(8)
- Proceedings Type: Originating Summons seeking declarations
- Preliminary/Interlocutory Matters: Summons No 4462 of 2021 (leave for witness to give oral evidence)
- Judgment Length: 33 pages, 17,348 words
- Cases Cited: [2021] SGCA 90; [2021] SGCA 91; [2021] SGHC 274
Summary
Syed Suhail bin Syed Zin and others v Attorney-General [2021] SGHC 274 concerned 17 inmates of Malay ethnicity who had been convicted of capital drug offences under the Misuse of Drugs Act (MDA) and sentenced to death. Through Originating Summons No 825 of 2021 (OS 825), the plaintiffs sought declarations that the Attorney-General (AG), in prosecuting them, acted arbitrarily and discriminated against them on the basis of Malay ethnicity, in breach of Articles 9(1) and 12(1) of the Constitution. They also alleged that the AG exceeded constitutional and statutory powers by acting unlawfully through bias or by taking into account irrelevant factors.
At the High Court level, the decision addressed important preliminary procedural questions about how such constitutional and prosecutorial-discretion allegations should be pleaded and proved, including whether the plaintiffs should be allowed to adduce oral evidence from a witness in response to the AG’s denials. The court ultimately rejected the plaintiffs’ application for leave to call the proposed witness on the basis that the proposed evidence was not relevant to the issues in OS 825, and the court’s reasoning underscored the need for evidential relevance and procedural fairness in constitutional litigation against the State.
What Were the Facts of This Case?
The plaintiffs were 17 prisoners in Changi Prison, all of whom were convicted of drug trafficking or drug importation under the MDA and sentenced to death. The case was brought by way of OS 825 against the AG. The plaintiffs’ core narrative was that, during the prosecution of capital drug offences, the AG exercised prosecutorial discretion in a manner that was discriminatory and arbitrary towards Malay offenders. Save for the 11th plaintiff, who was a Malaysian national, the remainder were Singapore nationals, which mattered to the constitutional framing of equality and fundamental liberties claims.
OS 825 sought three declarations. First, the plaintiffs sought a declaration that the AG acted arbitrarily against them as Malay persons, breaching Article 9(1) of the Constitution, when prosecuting them for capital drug offences under the MDA. Second, they sought a declaration that the AG discriminated against them as Malay persons, breaching Article 12(1) (equal treatment under the law), again in the context of prosecutions for capital drug offences. Third, they sought a declaration that the AG exceeded his powers under Article 35(8) of the Constitution and/or under specified provisions of the MDA, acting unlawfully through bias or by taking into account irrelevant factors.
Procedurally, the plaintiffs filed OS 825 and a joint supporting affidavit on 13 August 2021. The AG responded by filing two affidavits on 6 September 2021: one sworn by the AG and another affirmed by the Director of the Central Narcotics Bureau (CNB). These affidavits denied the allegations of discrimination and arbitrariness. The plaintiffs then brought two interlocutory summonses, which were dealt with by Valerie Thean J on 14 October 2021. The extract provided focuses on one interlocutory matter: Summons No 4462 of 2021, which concerned whether the plaintiffs could call a witness to give oral evidence.
In the course of pre-trial communications, the plaintiffs indicated that they wished to respond to the CNB Director’s affidavit by adducing evidence from a witness “in the employ of the CNB” that would contradict the CNB’s contentions. The plaintiffs stated they possessed a copy of a police report filed by an unnamed witness alleging discrimination targeted at Malays during the investigation process, and they explained that the witness was concerned about potential action by the AG on behalf of the State if he gave evidence. The witness was later identified as Mr Muhammad Zuhairi bin Zainuri (Mr Zuhairi). The plaintiffs sought leave for Mr Zuhairi to give oral evidence in support of OS 825, and they exhibited multiple police reports and affidavits to support the application.
What Were the Key Legal Issues?
The first key issue was procedural and evidential: whether the plaintiffs should be granted leave for a witness to give oral evidence in the OS 825 proceedings, and whether the proposed oral evidence was properly relevant to the allegations made against the AG. This required the court to consider the relevance of the witness’s proposed testimony to the constitutional claims and to the specific denials made by the AG and CNB.
A second issue concerned procedural fairness and the proper handling of “new evidence” in response to State affidavits. The court observed that the plaintiffs’ approach—introducing a witness and police reports at a stage that effectively added new factual material—raised concerns about whether the opposing party had a right of reply and whether the evidence was truly “in response” to the CNB’s denial rather than an expansion of the factual basis of the case.
A third, underlying constitutional issue was the scope of prosecutorial discretion and the standards for alleging discrimination and arbitrariness in the exercise of that discretion. Although the extract does not show the final determination on the merits of the declarations, the court’s treatment of relevance and the structure of the plaintiffs’ evidence reflects the legal threshold that constitutional allegations against the AG must meet: they must be anchored to the prosecution decisions and not to generalized or tangential claims.
How Did the Court Analyse the Issues?
The court began by situating the interlocutory application within the procedural framework of the Rules of Court (2014 Rev Ed). It noted that leave to call a witness could be granted under O 28 r 4(3) of the ROC if doing so would secure the just, expeditious and economical disposal of the proceedings. However, the court emphasised that even where procedural mechanisms exist to allow oral evidence, the court must still assess relevance. In other words, the “just disposal” criterion does not override the requirement that evidence must bear on the issues in dispute.
On the procedural fairness point, the court treated the plaintiffs’ intended evidence as “new evidence” that should not be introduced without ensuring the opposing party’s ability to respond. The court reasoned that the plaintiffs’ letter and subsequent steps effectively went beyond merely responding to the CNB Director’s affidavit; instead, they introduced additional factual allegations through a witness who was concerned about giving evidence. The court therefore required the plaintiffs to file a summons for the relief they sought with a supporting affidavit, ensuring the matter was properly brought before the court for determination.
Turning to relevance, the court examined the police reports relied upon by the plaintiffs. The plaintiffs relied on three police reports made by Mr Zuhairi on 6 January 2020, 12 May 2021 and 1 September 2021. The court found that these reports did not appear to be relevant to the prosecution of the plaintiffs or to any arbitrary, discriminatory or unlawful action against Malay capital drug offenders. Instead, the reports concerned Mr Zuhairi’s belief that he, as a Malay CNB officer, had been targeted in internal investigations by the CNB. The court quoted the substance of the reports to illustrate that they were framed as personal perceptions of being racially profiled in internal processes, rather than evidence about the prosecution decisions affecting the plaintiffs.
For example, the court highlighted that the January 2020 report was lodged against the CNB Director and management regarding possible promoting of enmity between different racial groups, and that Mr Zuhairi felt racially profiled to be investigated and prosecuted compared to another race. Similarly, the May 2021 report described Mr Zuhairi’s feeling that he was racially targeted for prosecution or investigation referral, and that other races might receive preferential treatment. The September 2021 report likewise described Mr Zuhairi’s belief that he was racially profiled for prosecution and that Malay officers were referred for investigation by external agencies while Chinese officers received preferential treatment. The court’s point was not that such allegations were inherently implausible, but that they were not directed at the plaintiffs’ prosecution in a way that would assist the court in determining whether the AG acted arbitrarily or discriminated against Malay offenders in capital drug prosecutions.
The court then analysed the plaintiffs’ broader evidential foundation. It noted that the only part of Mr Suhail’s affidavit dealing with matters relevant to OS 825 was the contentions in Mr Ravi’s First Affidavit, which was annexed to Mr Suhail’s affidavit. Mr Ravi’s First Affidavit asserted that Mr Zuhairi had evidence of how CNB management discriminated against Malay persons generally, and it set out several particulars: that CNB officers arrested more Malays in capital drug cases disproportionately; that Malay officers spoke Malay more frequently and thus found it easier to communicate with persons of the same race; that informers were disproportionately Malay and reported against Malay suspects; that CNB officers sought Malay informers rather than Chinese informers proportionately; and that higher-ranking CNB members were Chinese, with instances where Chinese suspects were given favourable treatment compared to Malay suspects. The court’s reasoning in the extract indicates that it scrutinised whether these generalised assertions could be linked to the plaintiffs’ specific prosecutions and to the AG’s exercise of prosecutorial discretion.
Although the extract truncates the remainder of the judgment, the court’s approach is clear: it was not prepared to allow oral evidence where the proposed testimony did not have a relevant connection to the constitutional allegations against the AG. The court’s relevance analysis also reflects a broader judicial concern in State litigation: constitutional claims against prosecutorial decisions require careful evidential discipline, and courts will not permit proceedings to expand into collateral disputes about internal investigations or personal perceptions unless they are demonstrably probative of the issues pleaded.
What Was the Outcome?
The court dismissed the plaintiffs’ application for leave for Mr Zuhairi to give oral evidence. The decisive reason, as reflected in the extract, was relevance: the police reports relied upon by the plaintiffs did not appear to be relevant to the prosecution of the plaintiffs or to any arbitrary, discriminatory or unlawful action against Malay capital drug offenders. As a result, the court did not grant the procedural permission sought to call the witness.
Practically, this meant that the plaintiffs could not rely on Mr Zuhairi’s proposed oral testimony to advance the constitutional declarations in OS 825, at least not through the interlocutory route of Summons No 4462 of 2021. The decision therefore narrowed the evidential scope of the plaintiffs’ case and reinforced the requirement that evidence must be directed to the specific issues in dispute.
Why Does This Case Matter?
This case is significant for practitioners because it illustrates how constitutional litigation against the Attorney-General—particularly where it challenges prosecutorial discretion—will be managed through strict procedural and evidential controls. Even where plaintiffs allege discrimination and arbitrariness, courts will require that the evidence adduced is relevant to the pleaded issues and capable of assisting the court in determining whether the AG’s prosecutorial decisions were unlawful.
From a civil procedure perspective, the decision also highlights the importance of procedural fairness when new evidence is introduced in response to State affidavits. The court’s observations about “new evidence” and the need for a right of reply serve as a reminder that litigants must not circumvent the adversarial process by introducing material late or in a manner that deprives the opposing party of a meaningful opportunity to respond.
For lawyers, the case further underscores that generalized allegations of discrimination within law enforcement agencies may not automatically translate into proof of discriminatory prosecutorial action against specific accused persons. The evidential link between the alleged discriminatory conduct and the prosecutorial decision-making process is crucial. Accordingly, counsel should ensure that any witness evidence is not merely about internal perceptions or unrelated investigations, but about facts that bear directly on the AG’s exercise of discretion in the plaintiffs’ prosecutions.
Legislation Referenced
- Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint): Article 9(1), Article 12(1), Article 35(8)
- Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”): ss 24–26, 32
- Criminal Procedure Code
- Government Proceedings Act (Cap 121, 1985 Rev Ed): s 19(3)
- Legal Profession Act
- Rules of Court (2014 Rev Ed): O 28 r 4(3)
Cases Cited
- [2021] SGCA 90
- [2021] SGCA 91
- [2021] SGHC 274
Source Documents
This article analyses [2021] SGHC 274 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.