KOTTAKKI SRINIVAS PATNAIK v ATTORNEY-GENERAL
19 cases cited
Catchwords
Practice Areas
Counsel (5)
Case Significance
Kottakki Srinivas Patnaik v Attorney-General [2024] SGCA 5 was decided by the Court of Appeal, with Sundaresh Menon CJ delivering the grounds of decision on 1 March 2024, sitting with Tay Yong Kwang JCA and Woo Bih Li JAD. The appeal, Civil Appeal No 17 of 2023, was brought by Mr Kottakki Srinivas Patnaik after his application for leave to commence judicial review in relation to criminal proceedings against him was dismissed. The court had dismissed the appeal on 18 January 2024 and gave the full grounds in this judgment.
The principal ground advanced by counsel for Mr Patnaik, Mr Lim Tean of Carson Law Chambers, was that Mr Patnaik's right to equality had been violated because he had been charged while others named in connection with the same matters had not. It was also submitted that the charges could not be established on the evidence. As framed by the catchwords, the appeal concerned constitutional law on judicial review, equal protection of the law, and the Attorney-General's prosecutorial discretion under Article 35(8) of the Constitution, together with administrative law remedies including declarations, quashing orders and prohibiting orders. The Attorney-General was represented by the Attorney-General's Chambers. The judgment cited 19 Singapore authorities and statutes including the Criminal Procedure Code, the Penal Code and the Prevention of Corruption Act.
Summary
SUPREME COURT OF SINGAPORE
1 March 2024
Case summary
Kottakki Srinivas Patnaik v AG [2024] SGCA 5
Civil Appeal No 17 of 2023
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Decision of the Court of Appeal (delivered by Chief Justice Sundaresh Menon):
Outcome: The Court of Appeal affirmed the lower court’s decision to refuse leave to commence judicial review of a purported instance of selective prosecution for corruption.
Pertinent and significant points of the judgment
• Prosecutorial decisions undertaken by the Attorney-General (the “AG”), in his role as the Public Prosecutor (“PP”), to initiate prosecution against an accused person will be presumed to be lawful, owing to the high constitutional office held by the AG and co-equal constitutional offices of the AG and the courts. The PP is required to justify his decisions only where a prima facie case of a reasonable suspicion that Art 12(1) of the Constitution has been breached has been made out: at [20].
• Article 12 of the Constitution does not require that all persons be treated equally but requires instead that all persons in like situations are treated alike. In order for an applicant to establish a reasonable suspicion of the PP’s arbitrary decision making in breach of Art 12, he must show that the parties whose cases he is comparing his own with are situated virtually identically with him: at [21] and [23].
• Objections regarding alleged lack of evidence in support of criminal charges should be raised at a criminal trial, and not by way of civil applications to pre-empt and avoid the criminal trial. This is to avoid delay, fragmentation and inefficiency in criminal proceedings caused by such satellite litigation. There is also no obligation on or reason for the PP to give a preview of its case or its evidence at a preliminary stage, in order to overcome a pre-emptive attempt to prevent the prosecution of criminal charges: at [37] and [38].
Background to the appeal
1 This was an appeal against a decision of the General Division of the High Court (the “GDHC”) refusing leave to commence judicial review.
2 Mr Kottakki Srinivas Patnaik (“Mr Patnaik”) faces criminal proceedings in SC-906994-2022 on charges of corruption (the “Charges”) as an alleged bribe-giver in a private sector corruption scheme between 2011 and 2016.
3 On 10 February 2023, Mr Patnaik commenced HC/OA 122/2023 in the GDHC seeking the following orders, among others:
a. permission to apply for a prohibiting order to prohibit the AG from proceeding with the Charges;
b. permission to apply for a quashing order to prohibit the AG from proceeding with the Charges; and
c. a declaration that the Charges are in breach of Art 35(8) of the Constitution.
4 HC/OA 122/2023 was dismissed by the GDHC. Mr Patnaik appealed this decision.
Facts
5 The Charges concerned Mr Patnaik’s alleged gift of kickbacks to Mr Harish Singhal (“Mr Singhal”) in exchange for Mr Singhal securing awards of several ship handling and management services contracts by MODEC Offshore Production Systems (Singapore) Pte Ltd (“MOPS”) to Neptune Ship Management Pte Ltd (“Neptune”) at an inflated price. Mr Patnaik was a director and beneficial owner of Neptune.
6 The kickbacks were allegedly paid by Mr Patnaik, through Neptune, to Mr Singhal. Mr Singhal received these moneys through companies controlled by him; his colleague at MOPS, namely, Mr Gopinath Kuppusamy (“Mr Kuppusamy”); and/or three other individuals known to Mr Singhal, namely “Gaurav Gupta”, “Dhiman Chodhaury” and “Sudhir Kumar Jain” (collectively, “Mr Singhal’s Three Other Associates”). The said companies are identified in the Charges as Staghorn Marine Services, Staghorn Marine Services Pvt Ltd and Staghorn Marine Services Pte Ltd (“Staghorn Singapore”)
7 Additional charges were also brought against Mr Singhal and Mr Kuppusamy for their roles in a separate cheating scheme. This latter cheating scheme involved a conspiracy to conceal Mr Singhal’s interest in Staghorn Singapore from MOPS in order to induce MOPS to make payments to Staghorn Singapore. These additional charges do not involve Mr Patnaik or Neptune. However, they do mention one Mr Kuppusamy Parthiban (“Mr Parthiban”), who is Mr Kuppusamy’s brother and a nominee director and shareholder of Staghorn Singapore at the material time.
8 At the time of the hearing of the application, no charges had been brought against Mr Parthiban and Mr Singhal’s Three Other Associates. Mr Singhal’s Three Other Associates were based overseas and had been uncooperative with the Corrupt Practices Investigation Bureau.
Decision on appeal
9 The court found that the GDHC did not err in dismissing HC/OA 122/2023: at [18].
10 Prosecutorial decisions undertaken by the AG, in his role as the PP, to initiate prosecution against an accused person will be presumed to be lawful, owing to the high constitutional office held by the AG and co-equal constitutional offices of the AG and the courts. The PP is required to justify the exercise of his prosecutorial discretion only where a prima facie case of a reasonable suspicion that Art 12(1) of the Constitution has been breached has been made out: at [20].
11 Article 12 of the Constitution does not require that all persons be treated equally but requires instead that all persons in like situations are treated alike. In order for an applicant to establish a reasonable suspicion of the PP’s arbitrary decision making in breach of Art 12, he must show that the parties whose cases he is comparing his own with are situated virtually identically with him. The rationale for this is that it may be inferred from different treatment of virtually identical cases that the PP has unlawfully discriminated against one offender in a criminal enterprise as compared to one or more of the other offenders involved in the same criminal enterprise. Such an inference would only be drawn where it is the only logical inference open to the court on the evidence before it. Consequently, a difference in criminal charges brought against different accused persons at a given point in time does not, without more, raise an inference of a breach of Art 12(1): at [21], [23] and [24].
12 Mr Patnaik did not establish even a reasonable suspicion that he had been treated differently in relation to others who were similarly situated as he was in circumstances which give rise to a reasonable inference this was due to an improper exercise of discretion in breach of Art 12: at [28].
13 The other parties raised by Mr Patnaik – Staghorn Singapore, Mr Parthiban and others in Staghorn Singapore – were not alleged to be bribe-givers, but rather conduits through whom the alleged bribe-giver, Mr Patnaik, channeled the bribes to his intended recipient, Mr Singhal. Further, even if bribes came through Staghorn Singapore, Mr Patnaik did not explain why the bribes must have emanated from Staghorn Singapore. These other parties identified by Mr Patnaik therefore were not similarly situated as Mr Patnaik: at [30].
14 Mr Patnaik’s assertion that Staghorn Singapore, Mr Parthiban and other parties within Staghorn Singapore were also suspects and may have committed some other offence did not mean that they occupied a like position as him: at [31].
15 Mr Patnaik’s related assertion that he was made to bear the entire blame was rejected as he did not explain how the guilt of any other parties was being imputed to him. His argument that the alleged selective prosecution stood in the way of finding out the truth was also rejected, as the non-prosecution of certain parties did not mean that they were precluded from participating in fact-finding processes, and it was not necessary for a prosecution to proceed against all co-conspirators, particularly where some of them were outside of this jurisdiction: at [32] and [33].
16 Mr Patnaik’s allegation that the PP had been protecting Staghorn Singapore and Mr Parthiban was made without any evidence and without advancing any motive for the said protection. Mr Patnaik also did not explain his exclusion of other inferences, in particular, the obvious inference that these other parties were not equally situated as Mr Patnaik: at [34].
17 For the foregoing reasons the court rejected Mr Patnaik’s principal argument that his right to equality had been violated simply because, while he had been charged, others who had been named in connection with the matters that were the subject of the charges against him had not been charged: at [35].
18 Mr Patnaik sought the court’s intervention through civil proceedings to stop the AG, in his capacity as the PP, from proceeding with the Charges, because, among other reasons, the Charges were not grounded in evidence. However, Mr Patnaik should have raised these objections regarding the alleged lack of evidence in support of the Charges at the criminal trial, and he should not have made an application for prerogative orders in order to pre-empt and avoid the criminal trial. This is to avoid delay, fragmentation and inefficiency in the criminal proceedings. There was also no obligation on or reason for the PP to give Mr Patnaik a preview of its case or its evidence at this preliminary stage, in order to overcome a pre-emptive attempt to prevent the prosecution of the Charges: at [2], [37] and [38].
19 Mr Patnaik’s argument that there was a further breach of Art 35(8) of the Constitution arising from the fact that a contract manager at MOPS (the “MOPS Contract Manager”) who awarded the contracts had not been investigated failed because it was a new argument raised only in this appeal, which deprived the AG of an opportunity to respond and the Court of Appeal of the benefit of the GDHC’s decision and reasoning. His case before the GDHC was that the alleged breach of Art 35(8) was occasioned by the breach of Art 12(1) of the Constitution. It was not open to him to argue, on appeal, that the failure to investigate the MOPS Contract Manager was in itself (ie, independent of any breach of Art 12(1)) a breach of Art 35(8). In addition, Mr Patnaik did not explain the role or relevance of the MOPS Contract Manager: at [41] and [42].
This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.
What did Kottakki Srinivas Patnaik v Attorney-General [2024] SGCA 5 concern?
Decided by the Court of Appeal on 1 March 2024, the case concerned an appeal against the dismissal of leave to seek judicial review of criminal proceedings, examining prosecutorial discretion under Article 35(8) of the Constitution and the appellant's claim that his right to equality was violated.
What was the main argument in [2024] SGCA 5?
Mr Patnaik's counsel, Mr Lim Tean, argued that Mr Patnaik's right to equality had been violated because he was charged while others named in connection with the same matters were not, and that the charges could not be established on the evidence.
Who heard Kottakki Srinivas Patnaik v Attorney-General?
The Court of Appeal coram comprised Sundaresh Menon CJ, who delivered the grounds of decision, together with Tay Yong Kwang JCA and Woo Bih Li JAD. Mr Lim Tean of Carson Law Chambers acted for the appellant, and the Attorney-General's Chambers for the respondent.
Statutes Cited
Cases Cited (19)
SG (2)
[2022] SGCA 46 [2023] SGCA 36
SLR (17)
[1998] 2 SLR(R) 489 [2005] 4 SLR(R) 561 [2009] 2 SLR(R) 814 [2012] 2 SLR 1012 [2012] 2 SLR 49 [2013] 3 SLR 354 [2015] 5 SLR 1222 [2018] 2 SLR 1242 [2020] 5 SLR 609 [2021] 1 SLR 809 [2021] 4 SLR 719 [2021] 4 SLR 841 [2022] 1 SLR 1347 [2022] 2 SLR 1131 [2022] 2 SLR 964 [2022] 4 SLR 934 [2023] 4 SLR 934
Referenced in
Statutes interpreted in this judgment
Legal concepts & references
Judgment
Read the full judgment on the official Singapore Courts portal.
Read on eLitigationSource: eLitigation ([2024] SGCA 5)