1 We have, in recent times, repeatedly cautioned against the improper invocation of our processes. Despite our exhortations, from time to time vexatious or frivolous proceedings have been issued, applications have been brought that blatantly disregard the fact that we have a single-tier framework of appeal, and patently hopeless applications have been filed. In Ong Jane Rebecca v Lim Lie Hoa and other appeals and other matters [2021] SGCA 63 (“Ong Jane Rebecca”), we raised this concern in the context of civil proceedings (at [57]); and in Mah Kiat Seng v Public Prosecutor [2021] SGCA 79 (“Mah Kiat Seng”), we reiterated it in the context of criminal proceedings. We went further in Mah Kiat Seng to explain in the clearest of terms, for the benefit of litigants and counsel, that our courts cannot afford, and will not tolerate, ill-considered attempts to invoke our processes (at [73] and [74]). We also explained why such abuse of our processes is not only prejudicial to the court, but more importantly, is contrary to the public interest. Notwithstanding this clear and consistent stance, it unfortunately seems that our call for our processes to be respected has been lost on some. This is unacceptable and inexcusable when counsel is involved in the case. We are therefore compelled to restate the point in the strongest possible terms: we cannot and will not condone the abuse of our processes. But for the unreserved apology that was extended by counsel in this case, he would have been referred to the Law Society of Singapore (“the Law Society”) to be investigated for misconduct. The next time this happens, even an apology may not avert this course.

2 The two criminal motions before us arose in respect of Mr Miya Manik’s (“Manik’s”) pending appeal in CA/CCA 26/2020 (“CCA 26”). That is an appeal against the sentence that was meted out to him following a trial in the General Division of the High Court (“High Court”). Manik filed CA/CM 6/2021 (“CM 6”) seeking to adduce fresh evidence to aid his appeal. The evidence took the form of two medical reports prepared by Dr Ung Eng Khean (“Dr Ung”) who acted in the capacity of a psychiatrist engaged by the Singapore Prisons Service (“Prisons”). The Prosecution objected to Manik’s application but also filed CA/CM 23/2021 (“CM 23”), seeking to adduce medical evidence to address and refute Dr Ung’s reports in the event we were minded to allow Manik’s application.

3 Following a hearing on 12 August 2021, we dismissed CM 6 with brief oral remarks, and made no order on CM 23. However, in the light of several troubling aspects of Manik’s case in CM 6, we issue these grounds of decision. We feel constrained to do so not because there are any merits in the applications or because they raise any novel or contentious issues; instead, we do so because of the manifest lack of any merits in CM 6, and the manner in which the application in CM 6 was made.

4 We note at the outset that based on the parties’ affidavits and written submissions, it was not at all evident what the point of CM 6 was. Although it was said to be an application to adduce further evidence to aid Manik’s appeal, it was not clear how the fresh evidence that Manik sought to introduce would have any bearing on his appeal in CCA 26, either as a matter of law or of fact. Nor did it seem to us that counsel had even considered this most basic point.

5 At the oral hearing on 12 August 2021, we expressed our concerns and having heard from Manik’s counsel, Mr Eugene Thuraisingam (“Mr Thuraisingam”), it became patently obvious that CM 6 was a hopeless application. Aside from this, having reviewed the material that was before us, we had concerns over certain aspects of Dr Ung’s actions.

6 In these grounds, we address the merits of CM 6, before elaborating on the concerns that we have outlined above.

7 We begin with a brief account of the facts that led to Manik’s conviction and sentencing in the High Court, which is what led to CCA 26. On 24 September 2016, one Munshi Abdur Rahim (“Rahim”) was attacked by three men in the vicinity of a foreign worker dormitory at Tuas South Avenue 1. Rahim was the member of a contraband cigarette syndicate, and his assailants were from a rival syndicate. Rahim died of his injuries.

8 On 30 September 2016, Manik was arrested and investigated for causing the death of Rahim. It transpired that Manik was one of the three men who attacked Rahim. He was charged with murder under s 300(c) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) and alternatively with murder pursuant to a common intention, under s 300(c) read with s 34 of the Penal Code. We refer to these as the “Primary Charge” and “Common Intention Charge” respectively.

9 Manik’s trial commenced on 9 January 2020, which was three years, three months and ten days after he had been arrested. The trial spanned 11 days between 9 January and 27 February 2020. The High Court judge (“the Judge”) who heard the matter reserved judgment.

10 On 18 June 2020, the Judge delivered judgment acquitting Manik of murder, and convicting him on a substituted charge under s 326 read with s 34 of the Penal Code for voluntarily causing grievous hurt by dangerous weapons or means pursuant to a common intention: see Public Prosecutor v Miya Manik [2020] SGHC 164 (the “GD”). The Judge concluded as follows:

(a) While there was evidence that Manik had been wielding a chopper during the attack on Rahim, the other available evidence, in particular the camera footage, was insufficient to prove that Manik had landed the fatal blow on Rahim: GD at [60]–[68]. The Judge concluded that the Primary Charge could not be made out in the circumstances.

(b) It was possible that the three assailants, including Manik, shared a common intention to inflict the fatal injury. However, this possibility was insufficient to satisfy the Prosecution’s burden of proof: GD at [107]. Accordingly, the Common Intention Charge was also not made out.

(c) The evidence was sufficient for Manik to be convicted on a substituted charge of voluntarily causing grievous hurt by a dangerous weapon, given that there was evidence of a pre-arranged plan to inflict “something less than [a] s 300(c) injury”: GD at [110].

11 Manik was sentenced on 20 July 2020. The Judge made reference to the sentencing frameworks set out in Ng Soon Kim v Public Prosecutor [2020] 3 SLR 1097 and Public Prosecutor v BDB [2018] 1 SLR 127, and also considered various aggravating and mitigating factors. Relevant for the purposes of the present applications are the Judge’s observations on the issue of delay. Specifically, the Defence had submitted that there had been inordinate delay in prosecuting Manik’s case. He had been arrested and held without bail since 30 September 2016, and his trial only commenced in January 2020. It was contended that this delay had prejudiced Manik, and that a reduction in his sentence was therefore warranted.

12 The Judge disagreed. Referring to Ang Peng Tiam v Singapore Medical Council and another matter [2017] 5 SLR 356 at [110], she observed that there is “no general proposition that any or all delays in prosecution would merit a discount in sentencing”. In Manik’s case, there had been “no inordinate delay”, nor had there been “any prejudice or injustice”. She concluded that by backdating Manik’s sentence to the first day of his remand any possible prejudice would be adequately dealt with: GD at [124].

13 Having considered the relevant mitigating and aggravating factors, the Judge meted out a sentence of 15 years’ imprisonment and 15 strokes of the cane: GD at [130]. She found this to be appropriate having regard to the comparable sentencing precedents: GD at [131]–[133].

14 On 22 June 2020, the Prosecution filed CA/CCA 16/2020. This was its appeal against the Judge’s decision to acquit Manik of murder under both the Primary Charge and the Common Intention Charge. Following this, on 28 July 2020, Manik filed CCA 26, which appeal was limited to the question of his sentence. Both appeals are pending.

15 Almost six months after filing CCA 26, on 14 January 2021, Manik filed CM 6. This led, as we have noted, to the Prosecution filing CM 23 on 29 June 2021.

16 The new evidence Manik wished to adduce comprised two reports issued by Dr Ung on 22 September and 22 October 2020 (collectively, “Dr Ung’s Reports”). ¹ Each Report is about a page long. The Reports contain the following assertions or information:

(a) The Report dated 22 September 2020 (“Dr Ung’s First Report”) states that Manik is currently diagnosed as having adjustment disorder and lists six different drugs that Manik had been prescribed by way of treatment.

(b) The Report dated 22 October 2020 (“Dr Ung’s Second Report”) states the symptoms for which the various medications had been prescribed as treatment, and the reasons for the increase in the dosages of some of these medications. Where the dosages were increased, nothing is indicated as to any follow up to ascertain whether the increased dosage had been effective. In at least two instances, reference was made to a memo prepared by Manik’s doctor in Bangladesh who had evidently prescribed some of these medications while Manik was there. A copy of that memo was not produced. It was therefore difficult to draw any conclusion from this. But this seemed to suggest that Manik had been suffering from some of these symptoms before he even came to Singapore. It was not evident to us that Dr Ung had taken any steps to ascertain how the doctor in Bangladesh had come to his diagnosis or why he had felt it appropriate to prescribe such medication. ² Certainly nothing was said about any of this in Dr Ung’s Reports.

17 The Reports also do not state the diagnostic criteria that was applied for the diagnosis of adjustment disorder, nor the basis upon which Manik was diagnosed to be suffering from this disorder. Also, while Dr Ung’s Second Report states the symptoms against which Manik’s various medications were targeted, the Report does not explain the provenance of the symptoms. Specifically, nothing is said as to how or when Manik came to suffer from such symptoms as “poor sleep”, “impulsivity”, “low mood” and “anger outbursts”. ³ Finally, neither Report says anything as to how Dr Ung determined that the symptoms were in fact being experienced by Manik.

18 As mentioned, the Prosecution’s new evidence was responsive to Manik’s. It comprises a psychiatric assessment report prepared by Dr Koh Wun Wu Kenneth Gerard (“Dr Koh”) dated 19 May 2021 (“Dr Koh’s Report”), which states that Manik does not suffer from adjustment disorder or any other mental disorder. ⁴ The relevant details are as follows:

(a) Dr Koh’s Report notes the “brevity” of Dr Ung’s two Reports, ⁵ as a result of which Dr Koh sought some clarification from Dr Ung. Dr Ung provided such clarification by way of two further reports dated 31 March and 22 April 2021 (“Dr Ung’s further reports”).

(b) Dr Koh’s Report notes several points arising from Dr Ung’s further reports: ⁶

(i) Dr Ung had diagnosed Manik with adjustment disorder based on Manik’s reported symptoms.

(ii) Dr Ung did not state that Manik’s symptoms were “due to his having to wait 3 ½ years with the prospect of a death sentence hanging over his head”.

(iii) While Dr Ung increased the dosage of Fluoxetine because this would have been “helpful for control of impulsivity and anger outbursts”, Dr Ung accepted that “no such episodes [of anger] were observed”. This was corroborated by “[a] check with the Prison”, pursuant to which it appeared that Manik did not in fact have anger outbursts. It seemed unsatisfactory to us that Dr Ung had not undertaken this check himself despite being a psychiatrist engaged by Prisons.

(c) Dr Koh examined Manik on 11 May 2021. He concluded that while Manik “[was] experiencing distress”, his emotions were to be expected and within reason, given the “high stakes nature of the appeal”. Manik’s distress evidently had “not led him to develop an adjustment disorder”. ⁷

19 Despite Dr Koh having referred to Dr Ung’s further reports, these did not form part of the new evidence that either party sought to adduce. This was of concern to us. Dr Ung’s further reports appeared to shed some light on how Dr Ung had diagnosed Manik’s alleged mental illness. However, neither side sought to adduce these reports. While the reports were appended to the Prosecution’s affidavit in CM 23 and Manik referred to portions of these reports in his written submissions, neither party applied to adduce them. ⁸ Dr Ung’s further reports were therefore not in evidence.

20 Manik did not dispute that the applicable legal test for the introduction of fresh evidence on appeal is set out in Ladd v Marshall [1954] 1 WLR 1489 (“Ladd v Marshall”), and clarified in Soh Meiyun v Public Prosecutor [2014] 3 SLR 299 and Public Prosecutor v Mohd Ariffan bin Mohd Hassan [2018] 1 SLR 544 (“Ariffan”) in the context of criminal matters. Manik argued that the Ladd v Marshall requirements were satisfied, and that Dr Ung’s Reports should therefore be introduced.

21 First, Manik contended that based on Ariffan, the requirement of non-availability is not significant in the context of an application by an accused person in criminal proceedings. In the circumstances, nothing at all was put forward to explain why the new evidence could not have been obtained at the time of the trial with reasonable diligence.

22 Second, Manik argued that Dr Ung’s Reports were relevant to his appeal against his sentence. Specifically, Dr Ung’s Reports were said to be “relevant to advancing Manik’s position that the three-and-a-half-year gap between his arrest and his trial was indeed prejudicial to him”, and that Manik suffered “manifest injustice” as a result. ⁹ Specifically, Manik was contending that he developed adjustment disorder because of the inordinate delay. It is noted, however, that there is nothing in Dr Ung’s Reports that addresses the causal link between the alleged delay and the adjustment disorder that Manik claimed he was suffering from. And nothing else was said in Manik’s affidavit as to the supposed relevance of Dr Ung’s Reports.

23 Third, Manik argued that Dr Ung’s Reports were reliable. Manik argued that “[t]here can be no dispute as to … reliability”, because (a) Manik’s affidavit was drafted by solicitors and affirmed on oath; and (b) Dr Ung is an “experienced prison psychiatrist”. ¹⁰

24 Manik did not object to the Prosecution’s application in CM 23. ¹¹ He accepted that if CM 6 was allowed, it would follow that CM 23 ought to be allowed as well.

25 The Prosecution did not dispute the applicable legal test but argued that it was not satisfied in this case.

(a) First, the element of non-availability was not satisfied. Dr Ung’s Reports could, and should, have been obtained at the trial below and nothing had been advanced as to why this could not have been done. ¹²

(b) Further, Dr Ung’s Reports were irrelevant. ¹³ A mental disorder which sets in after the commission of the offence is generally irrelevant to sentence, as it has no bearing on the accused’s culpability. Such a disorder might conceivably be relevant to the accused’s sentence only where it constitutes a ground for the exercise of judicial mercy, or where it affects the impact of any imprisonment term on the accused person in question in such an adverse way that it renders it manifestly disproportionate: Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 (“Chew Soo Chun”) at [38]. Dr Ung’s Reports could not possibly justify invoking judicial mercy. Further, Dr Ung’s Reports firstly did not disclose any causal link between Manik’s alleged disorder and the conduct of proceedings; and secondly, they did not say anything at all about the impact of the alleged disorder on Manik’s imprisonment. We note that these points – on the legal relevance of mental illness as set out in Chew Soo Chun – were not even argued by Manik.

(c) Dr Ung’s Reports were “plainly unreliable”. They were, in fact, clinical memos, not forensic psychiatric reports. The Reports lacked essential details and were “entirely bereft of basic information” such as the sources of information relied on and the basis for Dr Ung’s stated conclusions or his diagnostic methodology. ¹⁴

26 As regards CM 23, the Prosecution emphasised that their application was dependent on the outcome in CM 6. They stated that “if this Court [allows] [CM 6], it should concurrently allow [CM 23], so that both sets of reports can be duly considered and weighed at the substantive appeal”. ¹⁵ For completeness, the Prosecution also addressed the introduction of Dr Koh’s Report in the context of the three Ladd v Marshall requirements. ¹⁶

27 In the light of parties’ affidavits and submissions, it was clear that the scope of the legal and factual issues before us was narrow. The sole question before us was whether CM 6 satisfied the requirements prescribed in the applicable case law for permitting new evidence to be adduced at the appellate stage. Having considered the parties’ respective positions, as well as the new evidence, it was patently obvious that CM 6 was a hopeless and wholly ill-conceived application. Dr Ung’s Reports could easily have been obtained at the trial if they had been thought to be material to Manik’s position. Aside from this, they were wholly inadequate and bereft of basic essential information pertaining to the sources of Dr Ung’s information, the diagnostic criteria he applied, and the basis for any conclusions that he arrived at. They were, in truth, neither legally relevant nor reliable nor even admissible. In the circumstances, Manik could not satisfy any of the three Ladd v Marshall requirements. We briefly elaborate on each of these.

28 Manik’s case, as set out in his affidavit, was that he developed adjustment disorder between August 2016 and January 2020. His contention was that with the weight of a potential death sentence hanging over him, the “unwarranted” delay between his arrest and trial caused him to develop a disorder that gradually worsened until January 2020. By that time, it had fully manifested.

29 The trial took place in January 2020, and sentencing occurred in June 2020. Manik therefore had ample time to raise his alleged adjustment disorder, to seek a psychiatric diagnosis of the same, and to ventilate the issue before the Judge if he or his solicitors thought this was relevant. At the very least, he could have done so by the sentencing stage which was five months later than when he claims the condition had fully developed. Manik was represented by Mr Thuraisingam and his associates at the time; they would have been well aware of the need to raise such points with due haste. This is especially so because the argument had been raised before the Judge that Manik’s sentence should be reduced on account of the alleged inordinate delay. Manik’s primary contention before us seemed to be that what made the delay inordinate was the fact that he had developed the disorder as a result.

30 Yet, no attempt was made to adduce evidence of Manik’s alleged adjustment disorder before the Judge. Instead, Manik only mentioned the alleged adjustment disorder several months after he filed his appeal. As a result, the Judge did not explore the question of whether Manik did suffer from adjustment disorder, and if he did, what caused it.

31 In CM 6, Manik’s sole argument on the first element as to whether the evidence could have been obtained at trial, was that the requirement of non-availability may be dispensed with, given what we said in Ariffan. Although not expressed in these terms, that was the clear suggestion from paras 5 to 7 of Manik’s written submissions, and this is made even clearer by the fact that he did not provide any explanation whatsoever for why a medical opinion could not have been sought in January 2020.

32 This argument misstates our holding in Ariffan. There, we observed that in the context of a criminal appeal, “the condition of ‘non-availability’ was to be regarded as ‘less paramount than the other two [Ladd v Marshall] conditions’” (at [49]). But we did not dispose of the requirement altogether. Instead, we reinforced the need to adopt a holistic approach, with the requirements of relevance and reliability in clear view, in order to reach a just result. In material part, we noted as follows (see [61] of Ariffan):

33 In the present context, it was clear that Manik had ample time and opportunity to raise before the Judge a point that, in his view, was pressing and relevant to his sentence. His silence as to why he failed to do so was entirely unsatisfactory. In any case, applying the holistic approach propounded in Ariffan (which we endorse), the other two requirements in Ladd v Marshall were not satisfied. There was thus no question, in the present case, of adopting “relative leniency” as regards the non-availability requirement (Ariffan at [61]).

34 Manik’s case in CM 6 was that he faced an “inordinate” delay, and that such delay led to his developing a mental illness, namely adjustment disorder (see [22] above). In other words, Manik had to prove each of the two features of his case – inordinate delay and mental illness – and a causal nexus between the supposedly inordinate delay and his adjustment disorder. This was accepted by Mr Thuraisingam when we put this to him at the oral hearing.

35 Whether there has been an inordinate delay in this matter is something to be considered at the disposal of CCA 26. We therefore limit ourselves to some preliminary observations.

36 The Judge observed (see [12] above) that it was not the case that any or all delays in the prosecution of a criminal matter will warrant a reduction of sentence. We agree with this observation. To show that there has been an inordinate delay, it will be necessary, as a first step, for the accused person to establish that there has been a delay that is well beyond the sort of time scale that is typically encountered in broadly similar cases. This will be a fact-sensitive inquiry that will turn on the full range of circumstances including the factual and evidential complexity of the matter, the gravity of the offence, the number of witnesses, the extent to which the accused person is forthcoming, the number of accused persons, whether the matter is a joint trial of several accused persons and so on. Even a cursory review of criminal matters involving similar charges will show that the delay Manik experienced was not obviously out of the ordinary.

(a) In Public Prosecutor v Toh Sia Guan [2020] SGHC 92, the accused was arrested on 21 July 2016 for the murder of another man, which resulted from a fight between the two individuals. The trial commenced on 6 August 2019, three years and 16 days after the arrest. It may be noted that this was a case that involved a single accused person, and not group violence.

(b) In Public Prosecutor v Teo Ghim Heng [2021] SGHC 13, which involved an accused person who had been charged with murdering his wife and daughter, the accused person was arrested on 28 January 2017. The trial commenced on 2 July 2019, two years and six months after the arrest. The trial spanned two tranches and concluded on 13 February 2020. The accused person was convicted on 12 November 2020, three years and nine months after his arrest. This again involved a single accused person.

(c) In Public Prosecutor v Ahmed Salim [2021] SGHC 68, the accused was arrested for murder on 30 December 2018. The trial commenced on 15 September 2020, one year and eight months after the arrest. The trial judge convicted the accused on 14 December 2020, about two years after the accused’s arrest. This too was a case with a single accused person.

(d) In HC/CC 6/2021, Public Prosecutor v Muhammad Salihin bin Ismail (an ongoing criminal matter), the accused was arrested for murder on 3 September 2018, and the trial commenced on 2 February 2021 – two years and five months after the arrest. This case likewise involved a single accused person.

37 In Manik’s case, the trial commenced three years, three months and ten days after the arrest. Although this may have been longer than the corresponding period in the cases we have noted, it was necessary to consider all the relevant circumstances including the fact that Manik’s case involved a group fight with multiple assailants and may have been factually and evidentially more complex as a result.

38 Manik did not accuse the Prosecution of deliberately and wilfully delaying proceedings and any such suggestion would have been baseless since there was no evidence to support it.

39 The courts do recognise that it is stressful for an accused person to wait for an extended period while investigations are ongoing and the case is being prepared for trial. It is for this reason that the court will typically take this into account by backdating the sentence to the date of remand. The Judge did precisely that, and in this sense, the delay Manik experienced had been accounted for by the Judge in the sentence she imposed.

40 Ironically, an application such as the present one places further strain on the court’s already limited resources (see Mah Kiat Seng at [73] and [74]). Such unmeritorious applications further extend the time taken to deal with the rest of the court’s case load leading to unnecessary consequential delays in other cases.

41 Perhaps, recognising the difficulty that was inherent in Manik’s case on inordinate delay, his counsel seemed to contend, as we have noted, that the alleged delay was inordinate because it had caused Manik to suffer from adjustment disorder. Such an argument would require expert evidence attesting to the fact that (a) Manik was now suffering from adjustment disorder, and (b) this was caused by the lapse of time between his arrest and the trial. However, Dr Ung’s Reports could not, even with utmost charity, be viewed as an expert report for reasons that we develop a little later, much less one that purported to make a link between the alleged condition and the delay. When we invited clarification from Mr Thuraisingam, he first maintained that he was not advancing a case that there was a causal link between the lapse of time and the alleged mental illness that Manik was allegedly suffering from. He said that Dr Ung’s evidence was not therefore being sought as expert evidence but as factual evidence. Specifically, as Manik’s treating doctor, he was testifying to Manik’s condition. This surprised us. We also pointed out to Mr Thuraisingam that if he was not contending that there is a causal link, then there would be no need for Dr Ung’s Reports. Mr Thuraisingam had no explanation for this. We next pointed Mr Thuraisingam to Manik’s affidavit in support of the application where he specifically asserted the causal link. This had been prepared by Mr Thuraisingam’s firm. Indeed, this fact was advanced as one of the reasons why the evidence was said to be reliable: see [23] above. It seemed to us to reflect the unsatisfactory way in which this matter was being approached that Mr Thuraisingam did not even seem to know his case as presented in Manik’s affidavit.

42 In any case, as Dr Koh correctly pointed out in his Report, Dr Ung’s Reports say nothing at all about any causal nexus between Manik’s period in remand and his alleged disorder. As we have already noted, Dr Ung’s Reports merely indicate an unsubstantiated diagnosis, and say nothing about the provenance of the alleged adjustment disorder or even how Dr Ung came to his diagnosis.

43 But, even if it was assumed that Manik does now suffer from adjustment disorder, there was nothing in the evidence he sought to adduce to suggest that this was the result of a prejudicial delay occasioned by the manner in which he was prosecuted. In truth, Manik’s alleged disorder could have arisen from a myriad of reasons, none of which is considered or explained in the new evidence.

44 Our final point on relevance pertains to Manik’s alleged mental illness. To be clear, in the context of CM 6, the court was not tasked to deal with the question whether Manik in fact suffered from such an illness. That too was a fact to be subsequently proven in CCA 26 if Manik wished to run this case. Manik’s new evidence on his alleged illness, however, did not even satisfactorily establish this for the reasons set out at [49]–[57] below.

45 Aside from this, the new evidence seems to us to be irrelevant to the question of Manik’s sentence. A psychiatric illness may be relevant to sentencing in various ways. First, it may be relevant where it is causally linked to the commission of the offence and therefore reduces the offender’s culpability. This was plainly not in issue in the context of this appeal since Manik’s case is that he became ill after the commission of the offence because of the long duration between his arrest and his trial, even though this seems contrary to the purported report of the Bangladeshi psychiatrist that Dr Ung has referred to. Second, in limited circumstances, it may be relevant where the illness is of sufficient severity to warrant the exercise of judicial mercy; or third, where by reason of the illness, any sentence has a gravely disproportionate impact on the particular offender: see Public Prosecutor v Setho Oi Lin @ Setho Irene [2018] SGDC 82 at [64], citing the decision in Chew Soo Chun at [38] (which involved two Magistrate’s Appeals heard by three judges sitting in the High Court).

46 Manik did not advance his case on the basis of judicial mercy. In any event, the threshold set for judicial mercy is a well-established and high one, and it seems clear it was inapplicable here since there was no suggestion of such severe effects on Manik’s health as would give rise to humanitarian considerations.

47 As for illness as a mitigating factor, the relevant principle is that this may be regarded as mitigating where there is a markedly disproportionate impact of an imprisonment term on an offender by reason of his ill health: Chew Soo Chun at [38]. There was not the slightest attempt by Mr Thuraisingam to explain how this principle could be invoked. Manik had been receiving treatment in the form of medication. This was apparent from Dr Ung’s Reports. Thus, Manik’s condition, as alleged, was one that “can be addressed by … treatment”: Chew Soo Chun at [39(a)]. Further, Manik’s condition, if it existed, seemed to be one that carried “only the normal and inevitable consequences in the prison setting”: Chew Soo Chun at [39(b)]. In any event, Dr Ung’s Reports, as noted, did not even attempt to make out such a case.

48 What was most disturbing in the circumstances is that it did not seem to us that Manik’s counsel had even thought about how the present application could possibly be said to be relevant to the appeal given the contents of Dr Ung’s Reports.

49 Turning to reliability, even this requirement was not met. Dr Ung’s Reports were, as the Prosecution correctly highlighted, devoid of detail. They merely state the medications prescribed to Manik, the symptoms or diseases that such medications are meant to treat, and a one-line diagnosis of “adjustment disorder”. There is no explanation of how Manik came to be diagnosed with such disorder.

50 This was wholly unsatisfactory. There is a body of case law on the minimum standards expected of experts who tender opinions to court concerning the alleged mental illnesses of accused persons. In each of these decisions, the court has emphasised that experts owe a duty to the court to ensure that their evidence is cogent, reliable, and may be gainfully used in the proceedings for which they were prepared.

51 In Anita Damu v Public Prosecutor [2020] 3 SLR 825 (“Anita Damu”), the court emphasised that an expert’s opinion must be scrutinised for factual and logical cogency. A judge who assesses such evidence must “resort to the usual methods [he or she] employs in all other cases which do not require expert evidence: that is [by] sifting, weighing and evaluating the objective facts within their circumstantial matrix and context in order to arrive at a final finding of fact”: at [35] and [36]. The court concluded, in that case, that “the relevance and reliability of the psychiatric evidence was for practical purposes critically undermined by the appellant’s failure to give evidence at the Newton hearing”: at [43].

52 In Kanagaratnam Nicholas Jens v Public Prosecutor [2019] 5 SLR 887 (“Kanagaratnam”), the court severely criticised the psychiatric evidence tendered by parties and also reiterated what the court expects of experts; and specifically in this context, what it expects of psychiatrists. The court reminded experts that they cannot merely present conclusions without also presenting the underlying evidence and the analytical process by which the conclusions are reached. Otherwise, “the court will not be in a position to evaluate the soundness of the proffered views”: at [2]. The report raised by the accused in Kanagaratnam was described as “singularly unhelpful because the professionals merely stated their conclusions without explaining their reasons”: at [3]. The experts’ conclusion “was simply stated”, with “no explanation as to how the appellant’s psychiatric conditions affected his condition or how this impacts on his culpability”: at [30]. As a result, the court was “left none the wiser as to whether these conclusions were sound or had any factual basis”: at [30].

53 Similar observations were made in Mehra Radhika v Public Prosecutor [2015] 1 SLR 96 (“Mehra”). The court found that the expert medical report tendered was “patently lacking in objectivity” (at [68]), and that the report “read more like a fact-finding report than a professional medical opinion” (at [67]).

54 Mehra was cited by the Minister of Law, K Shanmugam, in written response to questions posed by an NMP on expert psychiatric evidence tendered in court. The Minister observed, in salient part, that: ¹⁷

55 As seen at para 4 of that extract, the Minister observed the existence of “existing norms” on the “minimum standards and objectivity expected of an expert witness”. These are the standards that have been enunciated and elaborated on in cases such as Anita Damu, Kanagaratnam and Mehra. The “proposed amendments” alluded to by the Minister are a reference to s 78 of the Criminal Justice Reform Act (Act 19 of 2018). Section 78 proposes that the Criminal Procedure Code (Cap 68, 2012 Rev Ed) be amended to include a new s 269 which codifies the duties to the court which are owed by experts. While this new provision has yet to enter into force, the point remains that under the existing law, expert witnesses owe a duty to the court to ensure that their evidence is reliable and fit for court use. Such is the importance of the standards we hold expert witnesses to, that Parliament has moved to codify the same.

56 Dr Ung’s Reports fell far short of these standards. Each Report is but a page long and consists of bare assertions, sets out a list of medications that had been prescribed, and describes the purposes of the medications. Dr Ung’s Reports did not disclose the methodology, diagnostic criteria, clinical observations or any substantiation for his conclusions. This is not even “evidence” of anything other than the fact that certain drugs were prescribed by Dr Ung and that certain conclusions were held by him. But none of this was relevant or helpful to the court. It follows that we would not even have admitted Dr Ung’s Reports into evidence on this basis alone.

57 As we have already noted above, Mr Thuraisingam said during the hearing of CM 6 that Dr Ung’s Reports were tendered as factual, not expert, evidence. But this was untenable because it was based on Mr Thuraisingam’s misapprehension that his case was not based on suggesting a causal link between any delay and the alleged mental illness. In any case, if Dr Ung’s Reports were being tendered as factual evidence of the medications he had prescribed, they were utterly irrelevant to the issues in the appeal.

58 Finally, as has been noted above, it appears from the report of a psychiatrist from Bangladesh that Manik had been prescribed some medication even before he came to Singapore (see [16(b)] above). This would seem to wholly undercut Manik’s argument that he became ill after his arrest, and it shows the grossly unsatisfactory manner in which his case was being conducted.

59 It was therefore abundantly clear that Dr Ung’s Reports did not meet any of the criteria for admission at the stage of the appeal. We accordingly dismissed CM 6. As noted at [24] and [26] above, the parties accepted that the Prosecution’s new evidence was entirely responsive to Manik’s. Having dismissed CM 6, CM 23 did not fall to be considered and so we made no order on it.

60 We turn to the questionable circumstances surrounding Dr Ung’s evidence, as well as the very filing of the application.

61 Put simply, it should have been immediately evident to any reasonably competent legal practitioner that Dr Ung’s Reports were unsatisfactory and in no state to be adduced as evidence. At a glance, these one-page Reports raised more questions than they answered. Upon closer examination, these questions gave rise to potentially grave concerns, on our part, over the propriety of the application and the evidence.

62 The sparseness of Dr Ung’s Reports led us to invite Mr Thuraisingam to disclose the precise instructions that were given to Dr Ung. Our concern was that Dr Ung might not have been aware of the purpose for which his Reports were being sought on Manik’s behalf, and that this might explain their woefully unsatisfactory state. As it transpired, Mr Thuraisingam did inform Dr Ung that his Reports were being obtained for use in court proceedings, though the precise issue was not defined beyond an intimation that Manik wished to obtain Dr Ung’s opinion on his mental illness “to assist in [Manik’s] appeal against his sentence in [CCA 26]”. It seemed curious to us that Dr Ung, when asked to furnish a report to assist in his patient’s court proceedings, appeared to have made no inquiry at all as to how he might assist the court or how his report might be relevant.

63 But beyond that, given the patent lack of merit in CM 6, we had concerns over the propriety of Mr Thuraisingam’s conduct, and whether it amounted to an intentional abuse of the process of the court on his part. In addition, we had serious concerns over whether Dr Ung had acted appropriately in dispensing medicine to Manik. We elaborate.

64 It is well-established that proceedings which are manifestly groundless or without foundation abuse the process of the court: Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582 (“Chee Siok Chin”) at [34]; Cavinder Bull SC and Jeffrey Pinsler SC, “Civil Procedure” (2014) 15 SAL Ann Rev 133 at 163. While the discussion in Chee Siok Chin revolved around the grounds for striking out a claim in the civil context, the doctrine of abuse of process has been recognised as applicable in criminal proceedings, and has been discussed, in particular, in the context of applications to adduce fresh evidence on appeal. This was considered in BLV v Public Prosecutor [2019] 2 SLR 726 (“BLV”).

65 In BLV, we upheld the High Court’s finding that the application to adduce further evidence on appeal was an abuse of process. The issues revolving around the new evidence had been remitted to the High Court for determination: at [4]. The High Court found the new evidence seriously wanting and therefore rejected its attempted introduction, describing the application as an abuse of process. We noted at [88] of BLV that the abuse in that case “attacked the integrity of the judicial process that had been concluded in the court below”.

66 BLV makes it clear that the rule in the civil context – that patently unmeritorious applications can constitute abuses of process – is equally applicable in the criminal context. This is so because the court’s power to prevent abuses of its processes arises from its inherent jurisdiction, such jurisdiction being necessarily vested in the court so that it may “uphold, protect and fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner”: Chee Siok Chin at [30] citing Sir Jack I H Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 CLP 23.

67 The circumstances of the present case led us to conclude that CM 6 was plainly an abuse of process. We also concluded that Mr Thuraisingam ought to have been aware of this.

68 First, the application was clearly and hopelessly unmeritorious. We have explained this above, with reference to the three Ladd v Marshall requirements and explained why none of them were satisfied. We would have expected at an absolute minimum, that counsel would have given consideration to why the application was made and how it could be said to be relevant to the issues in the appeal. It did not seem to us that even this was done.

69 In line with this bizarre approach to the case, no application was made by or on behalf of Manik to amend CM 6 to introduce Dr Ung’s further reports, even though those were meant to be clarifications of Dr Ung’s Reports. Nor was any explanation offered for this.

70 In view of the fact that by the time Manik raised the issue of his adjustment disorder, it had been almost a year after the disorder had, according to him, fully manifested, it was appalling that Dr Ung’s Reports were as scant as they were. If counsel had seriously entertained the thought that there was a real, as opposed to a merely fanciful, possibility that his client was suffering such a serious condition that it should warrant a reduction of his sentence, one would have expected a probative and insightful report discussing the clinical observations made by Dr Ung, the basis on which conclusions were arrived at, the diagnostic criteria applied and so on. None of this was done.

71 Aside from this, Manik’s filing of CM 6 was an attack on the integrity of the judicial process, both of the court below and of this court. CM 6 was an attack on the High Court’s processes because it was a backdoor attempt to introduce a key point that could and should have been raised at the earliest instance. As we have observed, no attempt was made to explain this. If Dr Ung’s Reports (assuming they were relevant and were presented in a vastly improved form) were admitted pursuant to CM 6, the issue of Manik’s adjustment disorder would likely have had to be remitted to the Judge for determination in the context of a Newton hearing. This would have been the case given that the Prosecution contested the issue, and because it would have presented a potentially complex factual question which had not been tested at trial. The Judge would then have had to reconsider her findings on sentence. This state of affairs could and obviously should have been avoided.

72 CM 6 was also an attack on this court’s processes because it demonstrated a disregard for how the criminal appeal process is typically and by design unidirectional. Thus, save in exceptional circumstances, an appeal should typically not be protracted and shunted back and forth between the trial and appellate courts. Mr Thuraisingam knows this. He must have known that by raising a previously unconsidered mental illness at the appeal stage, if it was relevant, then it would likely have resulted in the issue being remitted to the trial court. This would have required time and an adjournment of the appeals. Taken together with the patently untenable state of the evidence, it seemed fair to us to question whether CM 6 had been filed for ulterior purposes.

73 We raised these points to Mr Thuraisingam during the hearing on 12 August 2021. Mr Thuraisingam could offer no satisfactory response to our questions.

74 We take the opportunity to restate some duties of solicitors which were relevant to this case. First, solicitors have a duty to properly instruct the experts that they appoint. This has been elaborated in Pacific Recreation Pte Ltd v S Y Technology Inc and another appeal [2008] 2 SLR(R) 491, where we stated at [89], in the section titled “The instructing solicitors’ duty”, that “[s]olicitors should familiarise themselves with the guidelines [on expert evidence]”, and observed that “it is the duty of the solicitor instructing the expert to bring these guidelines to the [expert’s] attention”.

75 Where unmeritorious and hopeless applications are concerned, several other duties of solicitors come to the fore. The first rule is r 9 of the Legal Profession (Professional Conduct) Rules 2015 (“PCR”). Rule 9 sets out guiding principles, which include:

76 These principles are aligned with r 55 of the now-repealed Legal Profession (Professional Conduct) Rules (Cap 161, R 1, 2010 Rev Ed) (“old PCR”), which was discussed in Zhou Tong and others v Public Prosecutor [2010] 4 SLR 534 (“Zhou Tong”). Rule 55 provides:

77 The court in Zhou Tong found that the solicitor in question had “disregarded his absolute duties to the court” by, among other things, filing patently unmeritorious appeals on behalf of his clients (at [12]), and by drafting the applications “poorly” and “without applying his mind properly to the need for accuracy and/or … legal persuasiveness” (at [11]). These fell afoul of the provisions of the old PCR.

78 More recently, in Syed Suhail bin Syed Zin v Public Prosecutor [2021] 2 SLR 377 (“Syed Suhail”), we found that counsel in that case had acted improperly in pursuing a criminal motion on behalf of his client. In so concluding, we highlighted (at [30]) that:

79 Syed Suhail affirmed the rule in Zhou Tong – that the filing of patently unmeritorious applications on behalf of one’s client in the context of criminal proceedings can amount to improper conduct by a solicitor. As a consequence of the improperly-filed applications in Syed Suhail, we considered the imposition of adverse costs orders against the solicitor in question.

80 A separate standalone rule identified in Zhou Tong is also relevant: the duty to conscientiously assess the merits of one’s client’s case before engaging in court proceedings: at [19]. There are two facets to this duty, as clarified by V K Rajah JA in that case:

81 Rajah JA then elaborated on the threshold for finding impropriety in the failure to assess the merits in a responsible manner:

82 It is clear from the case law we have discussed that where a solicitor files an unmeritorious application on behalf of his or her client, this may amount to professional misconduct. Much will depend on how patently unmeritorious the application is and on whether counsel can offer a satisfactory account for filing the application. The fact that the accused person faces dire consequences, even a capital sentence, cannot and will not justify counsel filing ill-considered and baseless applications. Where an application is without reasonable basis, it is well within the court’s discretion to refer the solicitor concerned to the Law Society for disciplinary action to be taken.

83 There were numerous aspects of the present case which taken together, suggested that Mr Thuraisingam may have been in breach of one or more of his duties. First, there was the timing of the application. Simply put, the point, if it had any merit at all, should have been raised before the Judge. It was not. Second, the patent lack of any value in Dr Ung’s Reports. It is difficult to imagine how Mr Thuraisingam could reasonably have considered that the Reports constitute reliable and admissible evidence, let alone that they might support an argument to reduce Manik’s sentence. As we have already observed, Mr Thuraisingam himself did not appear to have a clear idea of why Dr Ung’s Reports were being put forward or how they might possibly be relevant to Manik’s appeal. Third, we found it most unsatisfactory that although Manik’s affidavit was drafted by Mr Thuraisingam or his colleagues asserting that the alleged mental illness was caused by the lapse of time between Manik’s arrest and the trial, when Dr Ung was instructed by Mr Thuraisingam’s firm to prepare his Reports, he was not asked to opine on this causal link. If this was overlooked, then it was a wholly unacceptable oversight. If, on the other hand, this was not something that had been innocently overlooked, then it would suggest a deliberate attempt to mount a false case. It was not clear to us how the solicitors could allege the causal link in the affidavit, procure a psychiatrist’s report in support of the case and somehow overlook the need to evidence that causal link.

84 Mr Thuraisingam is an experienced member of the criminal bar. A solicitor’s experience is relevant in determining how much leeway the court will afford the solicitor in the face of unmeritorious applications or arguments being made. Rajah JA, for instance, emphasised the 14 years of experience as a litigator that the solicitor in that case had, in commenting adversely on him in Zhou Tong.

85 For all these reasons, we found Mr Thuraisingam’s conduct of this matter to be wholly unsatisfactory. He encumbered the court with a patently unmeritorious application which wasted the court’s time. And, as a result of CM 6, the Prosecution had to incur time and cost in seeking Dr Koh’s opinion.

86 In the circumstances, we were minded to refer Mr Thuraisingam to the Law Society for disciplinary action. The only reason we did not do so is that when we put these points to him, he made no attempt to defend the indefensible and instead apologised unreservedly.

87 We nonetheless take this opportunity to again sound the caution, not only to Mr Thuraisingam but to all legal practitioners: patently unmeritorious applications should be avoided at all costs. A legal practitioner owes a duty to his client to assess the merits of any application appropriately before invoking the court’s processes. He also owes a duty to the court, as well as to the public, to assist in the administration of justice. Filing ill-conceived and hopeless applications are contrary to these duties and impede the smooth conduct of proceedings. These are not novel points, and they have been repeatedly touched on in such decisions as Ong Jane Rebecca, Mah Kiat Seng and Syed Suhail.

88 The final point pertains to Dr Ung’s conduct. Our concerns stem from paras 3.3 and 3.4 of Dr Ung’s Second Report. There, Dr Ung states that he prescribed and dispensed Sodium Valproate to Manik, and that he increased Manik’s Quetiapine dosage, after receiving “a memorandum … from [Manik’s] doctor in Bangladesh”. This memorandum was not provided to the court, though Dr Ung states that “a list of medications … was prescribed” there. Thus, Dr Ung appears to have dispensed medication to Manik using a report from someone purporting to be a psychiatrist in Bangladesh. This gave rise to two potential concerns.

89 First, it was not clear whether the identity or credentials of the Bangladeshi psychiatrist had been verified. No information in this regard was provided to the court. We therefore had no means of verifying the contents of the purported diagnosis by the Bangladeshi psychiatrist, whether the diagnosis is sustainable and accurate, and whether the diagnosis would have called for treatment in the form of the medication dispensed to Manik by Dr Ung.

90 Second, it emerged from the further reports obtained from Dr Ung that Manik’s symptoms have not been verified by Dr Ung himself. There was no evidence that Dr Ung attempted to corroborate the Bangladeshi psychiatrist’s conclusions by clinical observation or, for that matter, by checking with Prisons:

(a) Following a request made by Dr Koh, Dr Ung clarified in one of his further reports that he did not observe any episodes of impulsivity and anger outburst on the part of Manik, but dispensed Sodium Valproate to Manik “on the basis of [Manik’s] report from a Bangladesh psychiatrist”. Dr Ung also made it clear that all of Manik’s alleged symptoms were reported by Manik, and not observed by him (Dr Ung).

(b) We note from Dr Koh’s Report that Prisons also did not have any report of any such episodes on Manik’s part. Dr Ung has not offered evidence refuting this.

It therefore seems in the circumstances that medication may have been prescribed at “the inmate’s request”, as may be gleaned from the language used in Dr Ung’s Reports. If this transpires to be true, and if Dr Ung has indeed dispensed medication without any verification, then this seems to us to be unsatisfactory.

91 In the light of these concerns, we invited Mr Thuraisingam to clarify the position with Dr Ung. At the time of issuing these grounds, no such clarification has been provided.

92 For these reasons, we dismissed CM 6 and made no order on CM 23. We would have considered making an adverse costs order against Mr Thuraisingam but for the fact that the Prosecution did not apply for this.