The court ruled that the Singapore Prison Service AGC acted unlawfully by disclosing and requesting letters from prisoners

SOME DISCLOSURES ARE NOT IN ACCORDANCE WITH USUAL PRACTICE

The court was told that the Ministry of Home Affairs (MHA) and the SPS typically schedule executions of prisoners when there are no relevant proceedings pending that require a postponement.

As part of this process, they regularly shared documents with the AGC, seeking advice on legal issues that could impact the implementation timeline.

Since SPS and MHA officers handling such cases are not legally trained, if they came across a document that appeared legal in nature, they would send it to AGC for advice.

“This approach was taken out of an abundance of caution,” Deputy Attorney General Tai Wei Shyong said in an affidavit.

The court noted that almost all of the disclosures could be explained by this practice, as the documents related to proceedings arising from the prisoners’ convictions and sentences, or to the rejection of appeals.

These included complaints against lawyers, requests for legal assistance or requests for clemency to the president.

But there were some cases of disclosure that were not in line with this practice. They include a letter from Roslan to the state courts, a letter from Gobi and Datchinamurthy to the police, two letters from the police to Datchinamurthy and a letter from Saminathan to the police.

There were also three letters from Datchinamurthy to his former lawyer.

The disclosure of this correspondence was because MHA or SPS wanted to seek advice from AGC on how to respond to the prisoners’ requests, the court heard.

But “another important revelation” fell outside this practice: Suhail’s letters to his uncle in March and May 2017.

In an earlier case against Suhail, AGC told the court that it had Suhail’s letters. She then stated that she did not use this correspondence and did not gain any advantage in the legal proceedings against Suhail.

AGC had requested and received Suhail’s letters to his uncle.

“It became clear to us that Suhail’s correspondence had not only been requested by the AGC, but had also been used by the prosecutor in (his criminal investigation) insofar as she had noted in her comments that Suhail had sent letters to his uncle,” said Judge Prakash.

“This appeared to contradict the AG’s earlier statement (…) that Suhail’s correspondence had not been used in any legal proceedings.”

The Court of Appeal said the handling of Suhail’s correspondence “raises some concern”.

However, it emphasized that the effect the disclosure had on Suhail’s criminal assessment and other matters were not issues arising directly from this appeal. It focused instead on the private law remedies available to the appellants.

FINDINGS OF THE COURT

The court – which also includes Chief Justice Sundaresh Menon and Justice Steven Chong – ruled that it was unlawful for the SPS to pass copies of the prisoners’ correspondence to the AGC, and also unlawful for AGC to receive or request the same.

There was no legal basis for the SPS to make prisoners’ personal correspondence public.

Although there is a scheme allowing prison staff to read and copy correspondence to and from prisoners, this scheme is limited and the SPS does not allow the copying of letters between lawyers and their clients.

The Prison Service must also not share such correspondence with anyone, including the AGC.

However, the court recognized that in some cases the prison system would have to disclose the contents of prisoners’ letters to the relevant authorities. This is to obtain legal or other advice.

In such cases, the SPS should “at least” make it clear to the AGC that the disclosure was only for the purpose of “obtaining specific and urgent advice and identifying the matter requiring advice,” Judge Prakash said.

The AGC must have systems in place to ensure the confidentiality of all documents received for this purpose and these should only be disclosed to officials responsible for providing the necessary advice to the SPS.

This “limited exemption” would not allow AGC to request that prisoners’ correspondence be made public.

The court noted that no procedures had been put in place by AGC to maintain the confidentiality of the documents made public by SPS or to ensure that they were not seen by the officers engaged in prosecuting the detainees.

The court said that despite the steps taken by AGC and SPS to remedy the situation, a “declaration of illegality… would be valuable to prisoners and the public.”

As for the breach of trust, some letters to judges and police had no expectation of confidentiality, the court found. This included four clemency requests to the court and another petition to the president.

The inmates who wrote the letters could not have expected them to be hidden from the prosecutor, the court said.

But some other letters – including those to their lawyers, the Law Society about complaints against lawyers and requests for help, and to family – had an “expectation of confidentiality”.

The court ruled that the AG had violated the confidentiality of eleven prisoners.

As to whether the prisoners’ convictions or sentences were affected by the disclosure of their letters, this was a matter for criminal review proceedings, and not for a civil appeal, the court said.

It rejected the prisoners’ claim for damages, adding that there were no local decisions awarding damages for breach of trust. The prisoners also did not provide any legal basis for such a claim.

The apex court also ruled that the lower court had “not erred” in imposing the nominal damages of S$10 for three prisoners and that no notice of copyright infringement was required.

“The award of nominal damages itself would clearly show that there was a technical infringement of copyright, rendering any explanation redundant,” Justice Prakash said.