Mere minutes after we received the incredibly relieving news that Datchinamurthy Kataiah won himself a stay of execution, the Attorney-General’s Chambers (AGC) filed an appeal, and the hearing was set immediately, for 2.30pm.
Datch was not given a chance to secure a lawyer for this appeal. He won, and was almost immediately brought back via teleconference for the 2.30pm hearing at the Supreme Court, via teleconference.
While we are relieved that the AGC’s appeal was ultimately dismissed, Transformative Justice Collective is also concerned and shocked by this frantic, obsessive rush to execute a man who had just convinced a court to stay his execution, to the extent that the appeal had to be filed and heard just two hours after, by a three-judge panel at the Supreme Court of Singapore.
Read this post for an account of the appeal proceedings.
by Too Xing Ji
I am tired. It has been a very long day. But because there has been a dearth of reporting about Datchinamurthy’s case in the Singapore media, I feel I owe it to the public to recount what happened.
At 930am this morning, Dathchinamurthy appeared in person before Justice Hoo Sheau Peng in the High Court of Singapore, to argue his application for a stay of execution and permission to commence judicial review against the Government of Singapore for trying to hang him while he had a pending case against them in HC/OS 188/2022.
In short, Datchinamurthy along with 12 other inmates on Death Row were suing the Singapore Government for various declarations and damages, for the Singapore Prison Service’s illegal disclosure of their private prison correspondence to the Public Prosecutor’s office. OS 188 was filed on 25 February 2022, and had been fixed for hearing on 20 May 2022.
On 21 April 2022, Datchinamurthy was told that he would hang on 29 April 2022. Datchinamurthy sued the Singapore Government to stop his execution, saying that it was unconstitutional, as he was treated unequally as compared to the 12 other inmates in OS 188. No lawyer in Singapore would act for Datchinamurthy, in spite of the intuitive wrongness of what the State was trying to do. Suffice to say, people either did not care, and those who cared were too scared to act, because of recent cases in which personal cost orders and disciplinary proceedings were initiated against the lawyers who acted in similar stay applications.
Appearing for the Attorney-General (ie the Government) were Deputy Senior State Counsel Yang Ziliang and State Counsel Pavithra Ramkumar. Datchinamurthy argued in person, by reading out his prepared written submissions.
At about 1.30pm, Datchinamurthy’s family learnt that Justice Hoo had allowed the application by Datchinamurthy. A man on death row, acting by himself when no lawyer would act for him, had just won against a senior Government lawyer (incidentally outperforming the track record of a significant portion of the Singapore Bar). Justice Hoo issued a 13-page grounds of decision explaining her reasoning.
Datchinamurthy’s family and friends rejoiced. But their joy was short lived. In short order, the Government appealed. The appeal was fixed for hearing immediately at 2.30pm before the Court of Appeal.
I first heard about the appeal at about 2.50pm. I rushed over to the Court of Appeal from my office next door and got in at about 3pm. The Court of Appeal was almost empty. All parties, including the Judges, appeared by zoom. Only a few people were milling about in the public gallery. None of them appeared to be journalists.
Judges of Appeal, Andrew Phang and Judith Prakash, as well as Justice Belinda Ang were presiding.
When I sat down, the hearing had already started. What follows is my best attempt at a transcription of what happened at the hearing, based on the notes that I took contemporaneously.
Phang JA: Let me tell you what my position is. I might be wrong, and you are of course free to disagree with me, but let me tell you what my position is. I am not a prophet. I don’t know if the respondent will be needed for OS 188. None of us can tell, if his involvement will be necessary. That’s the best we can do.
Prakash JA: If the respondent is executed, wouldn’t it cast a spanner in OS 188? Even if the Estate can continue to act for him, but how will he get a legal representative appointed in less than a month? And there are 12 other plaintiffs, but there is 1 plaintiff absent, so does it continue? What then? There will be procedural issues, apart from what Justice Phang has said.
Phang JA: Some of these things are personal to him, and the Estate won’t be able to do. He has to explain the letters. His lawyers may want to cross-examine, he may be cross-examined. Take a common sense view of the matter. If we don’t know what will happen, then logically, we should wait and see right, because, if he is executed, then we will never know. I will be plain – somehow, that doesn’t sound right. If we don’t know, can you as a representative of the State, and as a representative of the State, you must have regard also to the accused’s rights. This is his life, it is not a longer term of jail. Just pause and think. If you are prepared to concede that you will lose the appeal if he is needed for OS 188, but cannot tell us if he is needed, how can you then assert, he is not needed? These are the ultimate stakes.
Yang: What I am hearing is the classification of OS 188…
Phang JA: The question applies to the first and second categories. Let me explain. If the second category is where he needs to be involved, and we don’t know if he is needed, the same analysis applies even if we take your highest case, that OS 188 must impact his conviction or sentence. Same reasoning: we don’t know. It doesn’t look as if it will impact, but who knows? If there is a flaw, or an irregularity, and it is serious, and it involves criminal tactics between the respondent and his counsel, it might. You say, Justice Phang, why are you speculating, and yes, we should not be speculating. But we cannot rule out that it might be possible. These are not just personal letters of the hello, how are you variety. There is correspondence between a lawyer and his client.
Yang: We have described at our subs, the nature of the letters…
Phang JA: Due process is a very strange but necessary creature. It is not minimal. It ensures the accused, has maximum latitude to argue his case, provided it is not abuse. And here, I really need to say, I find the first half of your submissions are strange. This is not the same kind of matter, like the one we just heard involving Nagaenthran, where it was obvious drip feeding. OS 188 was commenced well before the notice of execution, without knowledge of the date of execution.
Yang: I wish to draw Your Honours’ attention to the letters…
Phang JA: I know. But this is not about the letters. You are asking us, without the benefit of witnesses, to look at the letters, and draw our own inferences? Because of the timing of the letters, speaking for myself, that is not appropriate. We are not trying OS 188. Maybe my sister judges think otherwise.
Prakash JA: We haven’t seen OS 188. We have only seen your arguments about OS 188. But in OS 188, there are 13 people. Arguments made on behalf of the others, will also affect the respondent. We don’t know what principles will be raised. We don’t know what will happen. We cannot decide.
Phang JA: Context is everything. We don’t know the consequences. What if from the testimony of the other 12, we learn that Mr Datchinamurthy had a case? It would be too late to call him back. Once he is executed, it is the end, as far as I know. Are you willing to make the argument, knowing that that is the consequence. As Justice Prakash has said, we are not trying OS 188. There is no evidence taken. There has been no cross-examination. And that is where we are. This is not a hypothetical question that we sometimes pose in law school for learning, and you would know about that, because you went to law school, and it is a good learning exercise. Here we have a real life person, and you cannot ignore that. It might be slightly different if the consequences were not so dire, but given that they are so dire, frankly I am surprised that the AG is pursuing this appeal.
Yang: We are concerned by the High Court’s ruling that OS 188 was a relevant legal proceeding, even though it is not for example a forfeiture proceeding…
Phang JA: For forfeiture, it is clearer. It is the same party. But how can you say that it necessarily follows, that OS 188 has no involvement. Just because in forfeiture, involvement is necessary, it does not follow that all other proceedings will not involve the respondent. In [67] of Suheil, we said that you cannot abuse the process of court. If this were last minute, if the action had been conjured out of thin air, we might have taken a different view. But this one, in fairness, it was filed without knowledge of the judicial execution. Mr Yang, in fairness to you, we are not saying your case is unarguable, but this case is unusual. OS 188 stems from our observations in Gobi Avedian, about prison procedure, and that is not likely to happen every other time. Most cases will involve what the affidavit of what MHA says, and that would be the end of it.
Yang: We are worried about the the scope of relevant proceedings, and how wide it would be.
Phang JA: [67] of Suheil says it all depends on the facts. Here, let me read it out to you. [Phang JA proceeds to read out [67] of Suheil].
Yang: Yes Your Honour, that is what we are saying OS 188…
Phang JA: Just say it. You are afraid of floodgates and abuse. Just say it. But everything is based on the facts. So we look at the facts here. It has not been tried. There is no reason to suppose his involvement will not be needed. Can it be correct for us, to arrive at an answer, when we don’t have facts backing us up? This is all in the future, and it is not impossible or highly improbable that he will be involved. If you said, for example, and I am making a ridiculous example to make my point, if the condition was that Justice Phang must be able to jump across 2 HDB blocks, no reasonable person will believe that I will be involved to such an extent. I can’t do that. But this is a far cry, on the face of OS 188. It is a claim by 13 people, and the respondent is one of them. It is not fabricated. It might turn out to be, yes, that nothing changes, but that is the court’s decision. It is not for us to speculate.
Yang: Regarding substance – at [32] of our submissions, the declarations sought in OS 188 were resolved in earlier decisions.
Phang JA: But OS 188 has not been heard yet.
Yang: Well, some of the prayers were sought in OS 664, and after it was withdrawn, Justice Ang in his judgment said, previous legal proceedings already dealt with the issue.
Prakash JA: But this is a claim for damages. There is no suggestion the facts are made up. The letters were disclosed when they should not have been. They do not perhaps affect the earlier proceedings, but this is a separate question now. What remedy they can get, apart from the declarations.
Yang: The damages are nominal.
Phang JA: In civil proceedings, it is not always about the amount, but the principles that need to be vindicated. Take a step back and look at what has gone on for the last twenty minutes or so. This is all about OS 188. Except, this is not OS 188. To put it simply, this is the crux. Any other points?
Yang: It all rides on whether Your Honours agree with Justice Hoo that OS 188 is a relevant legal proceeding, and as a whole group, they would not be scheduled for death. We say OS 188 is not relevant, there is no distinction between the respondent and other inmates, and in terms of scheduling, we follow the principles in Syed Suheil.
Phang JA: You are not taking into account that this is unusual. This is not the vanilla sort of action. It stems from our unusual observations in Gobi about breach of prison procedure. And then this action is filed. And it is unlikely it will be filed everyday. In fact, I hope this action will not be filed everyday, because they involve very serious allegations about the prison and what has been going on. I don’t want to pronounce on OS 188 at this point, but whether the respondent is involved, there is uncertainty. Whichever argument you run, it will be problematic. So whether it has to affect the sentence or not, I know you argued in the morning, and Justice Hoo delivered her judgment, and you took instructions, and your instructions were to appeal, and you are running the same arguments, and we did say, the submissions will stand as they were. But if you can give any other reason, we will listen. Though to be fair, I think those were your strongest points. If you are prepared to say, that a relevant legal proceeding must deal with the condition of sentence, then what do we make of forfeiture proceedings?
Yang: Yes, we are not pushing that point.
Phang JA: And we appreciate that. You are making the arguments that you can make. You are not arguing for the sake of arguing, and I appreciate that. I wonder if my sister Judges, Justice Prakash and Ang have got any questions?
Ang J: No.
Prakash JA: Datchinamurthy, do I need to repeat?
Phang JA: (addressing the intepreter) Was he following the exchange between the Court and Mr Yang?
Datchinamurthy: (through Tamil interpreter) Yes I heard and I understood.
Phang JA: And in light of all that, does he want to add anything?
Datchinamurthy: I have nothing to add.
Phang JA: Mr Yang, thank you for your submissions, and thank you for responding to our questions. Unfortunately, we are not with you. We agree with Justice Hoo and her decision. We will issue our detailed grounds of decision in due course. The appeal is dismissed.
(Taken from: https://www.facebook.com/too.xing.ji/posts/10160707199331495)
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