Media Statement – 1/6/2022
Singapore’s Court Ordering Lawyer To Personally Pay Cost Of SGD20,000 To Attorney General’s Chambers In A Criminal Trial Is A Violation Of The Right To Fair Trial, And A Harassment Of Lawyers
We, the 22 undersigned groups/organizations are perturbed to hear that the Singapore Court of Appeal ordered on Wednesday (25/5/2022) that the 2 lawyers that represented Malaysian Nagaenthran K. Dharmalingam, being Mr M. Ravi and Ms Violet Netto to personally pay cost of SGD20,000(13,621 Euro/RM64,000) to the Attorney-General's Chambers (AGC). (Straits Times, 25/5/2022). The AGC had originally sought personal costs totaling $40,000 against Mr Ravi and Ms Netto for setting out to delay Nagaenthran's execution by filing unmeritorious applications, which caused it to incur unnecessary costs.
Nagaenthran was convicted of trafficking 42.72g of heroin in 2010 and given the mandatory death penalty. He, despite being a person suffering from an intellectual disability with an IQ of 69, was subsequently hanged to death at Changi Prison Complex on April 27.
What is even more shocking is that the five-judge Court of Appeal, led by Chief Justice Sundaresh Menon, makes this cost order after a month after the said lawyers’ client, Nagaenthran, had been executed.
RIGHT TO FAIR TRIAL
It is an affront to the right to a fair trial and justice, if the defendant/accused/convicted and/or their lawyer is placed at risk of retaliation by prosecutors and/or courts, including the possibility of being penalized by having lawyers pay cost of the prosecution in a criminal case. This will seriously impact the ability of lawyers and their client/s doing the needful including the filing of needed application/s in the defence of their client.
Whilst in some jurisdictions, it seems possible that the court can order the defendant/accused/convicted person to pay cost to the prosecution, it is rare. Such laws or practice ought to be repealed.
In 2002 the Law Reform Commission of Western Australia stated that ‘…it is inappropriate for a Defendant who is guilty to pay costs to the Prosecution given that he or she would have already been subject to some other form of court-ordered penalty...’ Another reason for not awarding costs is that the ‘…Prosecution team is supported by state resources and is serving a public duty….’
VIOLATION OF STATE’S OBLIGATION TO PROTECT LAWYERS
In this case, the Singapore court did not order the defendant/accused/convicted to pay cost to the prosecution, but ordered the lawyers that had acted for him to PERSONALLY pay cost to the prosecution. The act of ‘attacking’ lawyers directly for things done whilst acting for a client is totally unacceptable and unjust.
Rule 18 of the Basic Principles on the Role of Lawyers, a UN Instrument adopted in 1990, states that, ‘Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions.’ It must be noted that any applications made to court by a lawyer are done with the instructions and approval of their client/s, and, as such, even if there are to be cost orders by the court, such cost orders ought to be against the client, being the accused or convicted in criminal cases, but never against the lawyer personally.
The existence of laws, and this action of the Singapore Court ordering lawyers to personally pay cost of prosecution, is a violation of, amongst others, of Rule 16 of the UN Basic Principles on the Role of Lawyers.
Rule 16 of the Basic Principles on the Role of Lawyers states, ‘Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b… and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
The existence of laws, that today allows the court to order an accused or convicted, and/or their lawyer to pay costs to the prosecution by reason of the manner the defence of the person was conducted through the legal process or courts would reasonably be considered an intimidation, harassment and/or an improper interference with the right to a fair trial, and the professional duties of a lawyer. It is a violation of human rights and justice, amongst others, of Rule 16.
UNJUST TO NOT BRING TO ATTENTION OF COURT LEGAL ARGUMENTS OR EVIDENCE
Such laws and practice may deter lawyers from filing needed applications to bring to the attention of the court relevant evidence, new legal arguments or points of law – and this may lead to a miscarriage of justice. We note that ultimately in the criminal justice system, it is the courts and judges that ultimately decide, and no one else, be it the prosecution or the accused (or their lawyer), on merits of any application and whether it will affect conviction or sentence.
Lawyers and/or prosecutors should never decide on their own whether to bring it to the attention of the court or not, even if it comes to their attention at the 11th hour. They have no choice but to bring it to the attention of the courts that will consider and make a just decision.
Not bringing some matters for fear of cost orders may lead to a miscarriage of justice. It must be appreciated, that new evidence or relevant legal points or arguments may arise at different times, warranting additional applications. Such additional applications should never be seen as an abuse of the court process, more so in death penalty cases.
Hence, we call on Singapore to immediately repeal of laws that allows for the accused/convicted and/or their lawyers to be ordered to pay cost to the prosecution in criminal trials, an example, being Part 18 of Singapore’s Criminal Procedure Code. Section 355 in this part, for example, provides for an accused convicted to pay cost to ‘to any other party to the proceedings’, which in criminal trials would be the prosecution. Section 357 provides the possibility that a lawyer may end up paying cost to prosecution.
CONVICTED PAYING COMPENSATION TO VICTIMS JUST, BUT NOT ORDER FOR CONVICTED (OR LAWYER) TO PAY PROSECUTION COST IN CRIMINAL TRIALS
It is reasonable that the convicted be ordered to pay compensation or damages to the victims of the crime, but there is no justification for orders to pay prosecution cost in a criminal trial, more so in a death penalty case.
An order for costs and/or compensation to a successful Defendant/accused who has had his or her charges dismissed, withdrawn or been acquitted is also just. The purpose of such an order for costs is to compensate and indemnify the Defendant for the costs, loss of liberty and other losses he or she has incurred or suffered in the process of the legal proceedings.
A client also has a cause of action against his/her own lawyer for, amongst others, professional negligence. A lawyer too may be subjected disciplinary proceeding for breach of professional ethics or conduct. BUT, a lawyer should never be made to pay personally cost of prosecution in a criminal case where he acts for the accused/convicted.
STATE, PUBLIC PROSECUTOR, JUDGES AND LAWYERS – PROFESSIONALISM TO ENSURE JUSTICE
We are also appalled by the involvement of the AGC or the prosecution in this application for the lawyers to personally pay cost. Prosecution should act professionally and independently, with the objective of ensuring that there are no miscarriage of justice. It is best that prosecution is not affected emotionally, or is seen to be targeting or retaliating against lawyers. The AGC, in this case, should never have applied for or asked for the lawyers to personally pay cost.
Based on the Singapore AGC’s past Press Releases, it appears that in 22/2/2022, the Attorney Genaral’s Chambers did file two disciplinary complaints to the Law Society of Singapore (“Law Society”) against Mr Ravi and another lawyer. On 23/10/2020, the Attorney-General’s Chambers also did file a disciplinary complaint to the Law Society of Singapore (“Law Society”) against Mr Ravi Madasamy.
Such past incidents, where the AGC who also is the Public Prosecutor, filing disciplinary complaints against individual lawyers is of concern, it raises the perception that the State, the AGC and/or the Public Prosecutor’s independence and professionalism may be emotionally compromised. The Public Prosecutor and/or AGC should never be seen targeting or going after specific lawyers that appeared in criminal trials as lawyers acting for the accused/convicted.
We urge that Singapore, the Judiciary, the Public Prosecutor, the Attorney-General’s Chambers and lawyers act professionally and independently to ensure the Right To A Fair Trial, and lawyers in trials, especially criminal trials, are not subject any form of intimidation, hindrance, harassment or improper interference in their carrying out the professional responsibility as lawyers for the accused/convicted. At end of end of the day, it is the role of the Courts to consider any or all evidence and legal arguments, irrespective of how late it comes to the attention of the Court to ensure that there is no miscarriage of justice especially when the convicted may be executed.
Charles Hector
For and on behalf the listed 22 groups
ALIRAN
MADPET (Malaysians Against Death Penalty and Torture)
Black Women for Wages for Housework
Citizens Against Enforced Disappearances (CAGED), Malaysia
German Coalition to Abolish the Death Penalty (GCADP)
Haiti Action Committee
International Women's Rights Action Watch Asia Pacific
Japan Innocence and Death Penalty Information Center
Justice Project Pakistan (Lahore, Pakistan)
Lawyers Collective, India
Legal Action for Women, United Kingdom
lifespark – Movement Against The Death Penalty, Switzerland.
NAMM (Network of Action for Migrants in Malaysia)
North South Initiative
Persatuan Komuniti Prihatin Selangor & KL
Persatuan Sahabat Wanita Selangor
Safety and Rights Society (SRS), Bangladesh
The William Gomes Podcast, United Kingdom
Think Centre
Transformative Justice Collective
Women of Color Global Women’s Strike
WH4C (Workers Hub For Change)
See earlier post:-
Lawyers for Malaysian drug trafficker ordered to pay SGD20,000 prosecution costs - The law/practice must be abolished to ensure Right To Fair Trial?
For the Judgment -
Singapore EX TEMPORE Judgment - where court ordered lawyers in death penalty CRIMINAL case to pay cost personally to Attorney General
Lawyers ordered to pay S$20,000 for incurring ‘unnecessary court costs’
PETALING JAYA: The two lawyers who acted for executed Malaysian drug trafficker Nagaenthran K Dharmalingam were yesterday ordered to pay S$20,000 (about RM64,000) in costs to the Singapore Attorney-General’s Chambers (AGC).
According to a report in The Straits Times, the AGC had originally sought personal costs totalling S$40,000 against M Ravi and Violet Netto for delaying Nagaenthran’s execution by filing “unmeritorious applications”, which caused the court to incur unnecessary costs.
A five-member Court of Appeal panel led by chief justice Sundaresh Menon yesterday said it would be apparent to any “reasonable defence counsel that the case advanced by the duo lacked factual basis”.
Instead of putting their best case forward at the first instance, it said, the lawyers “drip fed” the supposed evidence and tendered documents at the last possible moment.
Nagaenthran, who was executed on April 27, had been on death row since 2010 for smuggling 42.7gm of heroin into Singapore.
During the trial, he was declared to be a person suffering from an intellectual disability with an IQ of 69.
However, the court found him to be not “substantially impaired” and that he knew fully well that he was carrying out an illegal act, according to reports.
Days before he was scheduled to be hanged on Nov 10 last year, Ravi filed an application seeking judicial review of the impending execution.
Arguing that Nagaenthran was mentally disabled, he also filed another application asking for a stay of execution to allow Nagaenthran to be assessed by a panel of psychiatrists.
However, the court dismissed the legal actions, saying the case was baseless and that there was no admissible evidence of any decline in Nagaenthran’s mental condition.
It also said the proceedings amounted to an abuse of the court’s
processes and were seemingly conducted with the aim of delaying the
execution. - FMT, 26/5/2022
Lawyers for Malaysian drug trafficker ordered to pay $20,000 for incurring unnecessary costs
SINGAPORE - The two lawyers who acted for Malaysian drug trafficker Nagaenthran K. Dharmalingam in a last-ditch attempt to halt his execution were on Wednesday (May 25) ordered to pay $20,000 in costs to the Attorney-General's Chambers (AGC).
Mr M. Ravi, who did most of the work, was ordered by the Court of Appeal to bear 75 per cent of the costs, while Ms Violet Netto, who later took over as the lawyer on record, was held liable for 25 per cent.
The AGC had originally sought personal costs totalling $40,000 against Mr Ravi and Ms Netto for setting out to delay Nagaenthran's execution by filing unmeritorious applications, which caused it to incur unnecessary costs.
Under the law, the court has the power to order personal costs against a lawyer who causes the incurring of unnecessary costs by acting improperly, unreasonably or negligently.
On Wednesday, a five-judge Court of Appeal, led by Chief Justice Sundaresh Menon, said it would be apparent to any reasonable defence counsel that the case advanced by the duo lacked factual basis.
The court reiterated that the way the case had been conducted was a blatant and egregious abuse of the court process.
Instead of putting their best case forward at the first instance, the lawyers "drip fed" the supposed evidence and tendered documents at the last possible moment, said the court.
The court also rejected Mr Ravi's argument that he and Ms Netto cannot be made to pay personal costs as they are no longer practising lawyers.
Nagaenthran was convicted of trafficking 42.72g of heroin in 2010 and given the mandatory death penalty. His appeals against his conviction and sentence were dismissed in 2011.
Over the years, Nagaenthran filed a total of seven applications to challenge his death sentence.
Days before he was scheduled to be hanged on Nov 10 last year, Mr Ravi filed an applicaton seeking judicial review of the impending execution.
Mr Ravi also filed another application, asking for a stay of execution for Nagaenthran to be assessed by a panel of psychiatrists.
The main argument was that the death sentence could not be carried out because Nagaenthran was mentally disabled.
The case was argued by Ms Netto, assisted by Mr Ravi, before the apex court on March 1.
On March 29, the court dismissed the legal actions, saying that the case was baseless and that there was no admissible evidence of any decline in Nagaenthran's mental condition.
The court said the proceedings brought by Nagaenthran amounted to an abuse of the court's processes and had been conducted with seeming aim of delaying his execution.
On April 26, a last-minute application by Nagaenthran's mother to halt his rescheduled execution was dismissed by the court.
He was hanged at Changi Prison Complex on April 27. - Straits Times, 25/5/2022
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