KOTTAKKI SRINIVAS PATNAIK v ATTORNEY-GENERAL

Facts

Kottakki Srinivas Patnaik, a director and beneficial owner of Neptune Ship Management Pte Ltd, faced criminal charges in SC-906994-2022: five counts of corruptly giving gratification to Harish Singhal under s 6(b) of the Prevention of Corruption Act, and one count of conspiring to disguise the proceeds of Harish's criminal conduct under the CDSA. According to the Attorney-General, he agreed to give kickbacks to Harish, then a Construction Manager at MODEC Offshore Production Systems (Singapore) Pte Ltd, in return for Harish securing contracts for Neptune at inflated prices. The kickbacks were said to have been paid through companies and associates linked to Harish, totalling more than US$1m from 2011 to 2016. Harish and a colleague, Gopinath, were also charged. The applicant denied giving any kickbacks and said he was a whistle-blower.

In Originating Application No 122 of 2023 he sought permission to apply for prohibiting and quashing orders against the prosecution, and a declaration that the charges breached Art 35(8) of the Constitution. He argued that the charges breached Art 12(1) because others involved, including a nominee director of a Staghorn company and three overseas associates of Harish, had not been investigated or charged, and that the charges were unlawful or irrational because they were not based on conclusive proof.

Issues

1. Whether the materials disclosed a prima facie case of reasonable suspicion that the charging decision breached Art 12(1)
2. Whether the charges were unlawful or irrational for lack of proof beyond reasonable doubt
3. Whether there was a breach of Art 35(8) supporting the declaration sought

Holding

The High Court dismissed the application for permission to commence judicial review and the related prayer for a declaration, and awarded the Attorney-General costs of $5,500 all-in.

Reasoning

The first two requirements for permission were not disputed; the question was whether there was a prima facie case of reasonable suspicion. On Art 12(1), the applicant had to show he was treated differently from equally situated persons. Counsel's own test, that anyone who could be charged on the same facts is equally situated, did not engage the Court of Appeal's guidance and did not help him anyway. On the prosecution's case he was the sole bribe-giver, while the others were intermediaries or recipients. He offered nothing beyond bare assertion to show anyone else was in a like situation, with involvement practically identical to his. The overseas associates were intermediaries, and difficulty of investigation and enforcement can be a legitimate differentiating factor. He gave no evidence of how a MOPS contract manager or a Neptune signatory was involved. Not every offender must be prosecuted.

On the second ground, the prosecution need not prove the charges beyond reasonable doubt before bringing them; that is for the criminal trial, where he could challenge the evidence. The Attorney-General need not disclose reasons, and his decisions are presumed lawful. No improper purpose was identified, and being a whistle-blower might go to sentence but did not bar prosecution.

Since the Art 35(8) argument rested on the other two grounds and permission was refused, the declaration also fell away.

From the judgment