Mah Kiat Seng v Attorney-General and Others

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The case of Mah Kiat Seng v Attorney-General and Others ([2023] SGHC 14) arose from an incident on 7 July 2017, when Mah Kiat Seng (“Mah”) was apprehended by the police outside Suntec City under Section 7 of the Mental Health (Care and Treatment) Act (MHCTA).

This provision permits police officers to apprehend individuals reported or believed to be mentally disordered and dangerous to themselves or others.

The sequence of events began with a complaint from a member of the public, who alleged that Mah had touched her four-year-old son’s head and appeared to be mentally unstable. Police officers, including Second Defendant Mohamed Rosli bin Mohamed (“Rosli”), arrived on the scene and interviewed both the complainant and Mah.

Rosli ultimately decided to apprehend Mah, asserting that he displayed behaviours indicating mental disorder and danger, such as agitation and incoherence.

Mah was handcuffed, taken to the Central Police Division Regional Lock-Up (RLU), and examined by a medical practitioner. He was subsequently transferred to the Institute of Mental Health (IMH) for further observation.

Mah was discharged from IMH on 8 July 2017, with no findings of mental illness or danger. Claiming his apprehension and detention were unlawful, Mah initiated legal proceedings.

Mah’s claims included false imprisonment, assault, and battery during the apprehension and detention. He also alleged negligence by the police in damaging his personal property and undue police influence over his detention at IMH.

Initial Legal Proceedings and Dismissals

Before the High Court judgement in Mah Kiat Seng v Attorney-General and Others ([2023] SGHC 14), Mah Kiat Seng faced multiple procedural and legal setbacks while pursuing his claims. The earlier stages of litigation involved repeated dismissals and challenges to his motions, highlighting the complexity and persistence of his legal journey.

The District Judge’s Decision

Mah initially brought claims concerning his apprehension under Section 7 of the Mental Health (Care and Treatment) Act (MHCTA), asserting that his detention was unlawful. The District Judge (DJ) dismissed these claims, finding Mah’s allegations insufficient to establish liability. The DJ ruled that the actions taken by the police were reasonable under the circumstances, despite Mah’s arguments to the contrary.

High Court Appeal in 2020

On 24 August 2020, Mah appealed the DJ’s decision to the High Court in Magistrate’s Appeal No. 9036 of 2019. The High Court judge dismissed the appeal, stating that:

“The appellant’s response in punching the security officer multiple times exceeded what was reasonably necessary. I therefore dismiss the appeal against conviction” ([2021] SGCA 79 at [11]).

This ruling affirmed the DJ’s findings that the police actions, though contested, were lawful and within statutory powers.

Court of Appeal Dismissals

Mah further pursued leave for criminal references under Section 397(1) of the Criminal Procedure Code (CPC). He filed three criminal motions over a two-year period, all of which were dismissed:

  1. First Motion: Filed in 2020, dismissed due to failure to raise questions of law of public interest.
  2. Second Motion (CM 24/2020): Dismissed on 1 February 2021, with the Court of Appeal holding:

    “The questions framed by Mr Mah simply did not arise in the circumstances. The Judge found that Mr Mah had exceeded what was reasonably necessary” ([2021] SGCA 79 at [15]).

  3. Third Motion (Criminal Motion No. 11 of 2021): Filed on 25 February 2021, this motion sought an extension of time to raise purported questions of law. The Court of Appeal dismissed it, observing that:

    “The three questions raised by the applicant were not new issues but had obvious answers that were well-entrenched in current jurisprudence” ([2021] SGCA 79 at [36])

Grounds for Dismissal

The Court of Appeal highlighted several recurring issues with Mah’s applications:[1]

  1. Factual Challenges Framed as Legal Questions:
    • Mah repeatedly framed factual disputes, such as the adequacy of medical evidence or the necessity of police actions, as questions of law. The court ruled that these issues did not meet the criteria for criminal references under Section 397(1) of the CPC.
  2. Abuse of Process:
    • The court noted that Mah’s repeated motions were attempts to re-litigate factual issues already adjudicated, which undermined the principle of finality in judicial proceedings.
  3. No Merit or Novelty:
    • The court found no substantive legal novelty in Mah’s arguments, describing them as “thinly-veiled attempts” to challenge established findings ([2021] SGCA 79 at [51]).

Court’s Observations on Finality

In dismissing the third motion, the Court of Appeal stressed the importance of finality in litigation:

“We cannot afford to have litigation that continues indefinitely; that would place an unbearable strain on our legal system” ([2021] SGCA 79 at [74]).

Despite cautioning Mah against further applications, the court did not impose costs due to his status as a layperson but issued a verbal warning about the consequences of vexatious litigation.

Discovery of Documents in Mah Kiat Seng’s Case

Background on Discovery Issues

During the proceedings in Mah Kiat Seng v Attorney-General and Others ([2023] SGHC 14), Mah sought discovery of video recordings, including closed-circuit television (CCTV) and body-worn camera (BWC) footage.

These recordings were pivotal to his claims of wrongful arrest and false imprisonment, as they contained evidence of the events leading to his apprehension and subsequent detention.

The Attorney-General (AG) opposed Mah’s request, invoking statutory protection under Section 126 of the Evidence Act (EA) and common law public interest immunity. The AG contended that disclosing the footage could compromise public interest, including the confidentiality of police procedures and the protection of third-party identities.

Findings on Discovery

Scope of Section 126 of the Evidence Act

The court ruled that video recordings do not fall under the definition of "communications" as envisaged by Section 126 of the EA[2].

Justice Philip Jeyaretnam explained that Section 126 protects verbal or written communications made to public officers in confidence but does not extend to video recordings of police interactions unless they directly capture a protected communication.

Application of Public Interest Immunity

The court held that the government could invoke common law public interest immunity to justify withholding the recordings. This doctrine allows the government to withhold evidence if its disclosure would harm public interests, such as law enforcement confidentiality or the safety of individuals.

Conditional Disclosure

To balance the need for justice with public interest concerns, the court ordered limited discovery:

  1. Inspection Instead of Copies:
    • Mah was permitted to inspect the recordings at a designated location but was not allowed to take copies.
  2. Pixelation for Anonymity:
    • Footage involving third parties, including the complainant, was to be pixelated to protect their identities.
  3. In-Camera Admission at Trial:
    • The recordings would be made available during the trial for in-camera viewing, ensuring their use as evidence without public disclosure.

These findings facilitated Mah’s access to evidence critical to his claims while addressing concerns about the disclosure of sensitive information.

Court of Appeal Decision to Reopen Mah Kiat Seng’s Case

Following the dismissal of his claims in the lower courts, Mah Kiat Seng filed an appeal to the Court of Appeal after discovering new evidence. This evidence, including body-worn camera (BWC) footage and other recordings, became pivotal in challenging the veracity of the police accounts and the legality of his detention under Section 7 of the Mental Health (Care and Treatment) Act (MHCTA).

Mah argued that the newly uncovered evidence contradicted key aspects of the police officer’s testimony, including claims that he was “mumbling to himself” and exhibiting erratic behaviour, which had formed the basis of his apprehension.

The Court of Appeal reviewed the recordings and found that they provided a starkly different portrayal of Mah’s behaviour during the incident.

The footage did not corroborate the police officer’s allegations, raising significant doubts about the justification for Mah’s detention.

The Court highlighted that this evidence was not disclosed during the earlier proceedings, an omission that undermined the fairness of the trial process and warranted a reconsideration of the case.

The Court further noted that the materiality of the evidence was undeniable, as it directly impacted the assessment of whether Mah’s apprehension was lawful.

It observed that the footage could substantiate Mah’s claims of wrongful arrest and false imprisonment, which had previously been dismissed due to a lack of evidence.

Recognising the importance of ensuring accountability, the Court determined that the public interest in addressing these issues outweighed any confidentiality concerns surrounding the recordings.

Beyond Mah’s individual claims, the Court acknowledged the broader legal and public interest implications of the case. It underscored the need to clarify the limits of police authority under the MHCTA and to ensure that safeguards were in place to prevent misuse of such powers.

The Court also stressed the importance of upholding transparency and justice in cases involving potential misconduct by public officers.

Ultimately, the Court of Appeal allowed Mah’s appeal and reopened the case, directing it back to the High Court for reconsideration in light of the new evidence.

High Court Judgement Overview

The General Division of the High Court, led by Justice Philip Jeyaretnam, delivered judgement on 19 January 2023. [3]

The court analysed the evidence, the legal framework of the MHCTA, and the conduct of the police officers involved, ultimately finding Rosli to have acted in bad faith.

Key Issues and Findings

  1. Lawfulness of Apprehension:
    • Section 7 of the MHCTA empowers police officers to apprehend individuals believed to be mentally disordered and dangerous. The belief must be honest and supported by reasonable grounds.
    • Justice Jeyaretnam emphasised, “The apprehending officer’s belief must be assessed in terms of a layperson’s understanding, considering the immediacy of the danger and the context” ([2023] SGHC 14 at [45]).
    • Evidence showed that Rosli fabricated claims to justify Mah’s apprehension. Notably, he alleged Mah was “mumbling to himself” and “spat into a plastic bag.” The judgement found these statements unsubstantiated and false: “The BWC footage and witness testimony confirm that Mah was not mumbling to himself nor did he spit into a plastic bag” ([2023] SGHC 14 at [64]).
    • The court concluded that Rosli acted in bad faith, motivated by personal animosity rather than legitimate concern. “I find on a balance of probabilities that Rosli, knowing that he had no power to arrest Mah for the matter complained of, fabricated his observations to justify an apprehension under Section 7 of the MHCTA” ([2023] SGHC 14 at [65]).
  2. Conduct of Police Officers:
    • Physical Force: Mah alleged he was punched in the abdomen during apprehension, causing pain. However, the court, after reviewing body-worn camera (BWC) footage, concluded, “While Mah complained of abdominal pain, there is no evidence to support the claim of a deliberate punch” ([2023] SGHC 14 at [77]).
    • Search of Personal Belongings: The police searched Mah’s bag and accessed his phone during and after apprehension. The court held that such actions were unwarranted under the MHCTA, as they did not relate to assessing mental disorder. Justice Jeyaretnam noted, “Section 7 of the MHCTA does not authorise searches, and Mah’s bag should not have been searched without his consent” ([2023] SGHC 14 at [88]).
  3. Involvement of IMH:
    • Mah argued that the police exerted undue control over his detention at IMH, but this claim was dismissed due to insufficient evidence. The court stated, “There is no evidence that the police interfered with IMH’s decision-making process regarding Mah’s detention or discharge” ([2023] SGHC 14 at [94]).
  4. Damages:
    • The court awarded damages to Mah for false imprisonment but dismissed claims for aggravated or punitive damages, noting Mah did not pursue these claims at trial. “Damages are awarded to reflect the unlawful deprivation of liberty and the discomfort endured during the period of detention” ([2023] SGHC 14 at [97]).

Costs Decision Overview

Following the judgement in Mah Kiat Seng v Attorney-General and Others ([2023] SGHC 14), Justice Philip Jeyaretnam addressed costs-related issues, including the principles for assessing costs of a litigant in person. Recognising limited local jurisprudence on the matter, the judge provided detailed reasoning to guide future cases.

Incidence of Costs

The court assessed the allocation of costs based on the outcomes of Mah's claims against the respective defendants. The Attorney-General (AG) argued that costs should follow the event, defined as:

  1. Success for Mah on two claims:
    • Unlawful apprehension by Rosli.
    • Unlawful search by the Singapore Police Force (SPF).
  2. Success for Defendants:
    • Tan on the assault claim.
    • SPF on the remaining claims.

Mah contended he should be treated as the successful party overall, as his case’s central "thesis" of wrongful arrest succeeded. The court disagreed, ruling that:

“In these circumstances, what the event is in relation to each defendant should be considered separately” ([2023] SGHC 14, Costs Decision at [4]).

Thus, Mah was entitled to costs for his successful claim against Rosli but was liable for costs on his unsuccessful claim against Tan. Regarding the SPF, the court found that while Mah had partial success (on the unlawful search claim), the SPF succeeded overall, warranting costs in its favour.

Quantum of Costs

Costs Payable to Mah

As a litigant in person, Mah’s costs were assessed under Order 59 Rule 18A of the Rules of Court (ROC), which allows recovery for time expended and reasonable expenses. [4]

The court noted:

"Litigants in person may recover costs to reasonably compensate for time spent, but not at a level that results in profit from the litigation" ([2023] SGHC 14, Costs Decision at [8]).

Although Mah suggested he spent 1,000 hours on the case, the court, applying a reasonableness standard, estimated 460 hours, 70% of which related to successful claims (322 hours).

Adopting an hourly rate of S$60—derived from the Magistrate’s Court scale, adjusted for the absence of a lawyer's profit margin—the court awarded Mah S$19,320.

Costs Payable by Mah

The AG sought S$35,000 for Tan's successful defence and S$50,000 for the SPF’s partial success. Justice Jeyaretnam considered these amounts cumulatively, factoring in the shared representation of the defendants. Noting:

“Joint representation requires apportionment of costs to avoid double counting or over-recovery” ([2023] SGHC 14, Costs Decision at [20]).

The court applied the Torts category under the Supreme Court Practice Directions' Costs Guidelines. While the case’s complexity merited an aggregate costs figure of S$160,000, only 30% of this amount related to Tan and the SPF’s successful defences. The final costs awarded were:

  • S$22,000 for Tan.
  • S$26,000 for the SPF.
Disbursements

Disbursements were apportioned, with Mah entitled to recover 70% of his reasonable disbursements, while the AG could claim 30%.

Conclusion on Costs

The court acknowledged an apparent disparity, with Mah recovering S$19,320 for his success while owing S$48,000 for his losses. However, Justice Jeyaretnam clarified:

“This disparity reflects the principle that compensation for litigants in person is generally lower than awards for legal representation, and proportionality to the forum chosen must also be considered” ([2023] SGHC 14, Costs Decision at [27]).

Set-off arrangements were ordered to reconcile damages, interest, and costs, leaving Mah liable for a net balance to the defendants.

Parliamentary Questions and Response

On 2 February 2023, following the High Court’s decision in Mah Kiat Seng v Attorney-General and Others ([2023] SGHC 14), several Members of Parliament, including Mr Leong Mun Wai, posed questions to the Minister for Home Affairs, Mr K Shanmugam, concerning the implications of the judgement.

The queries addressed issues such as the lapses identified in the case, disciplinary actions against the police officers involved, and measures to prevent recurrence.

Key Highlights of the Minister’s Response

  1. Nature of the Case:
    • Mr Shanmugam summarised the judgement’s findings, including the High Court’s conclusion that the police officer, Rosli, acted in bad faith by fabricating observations to justify apprehending Mah under the Mental Health (Care & Treatment) Act (MHCTA).
    • The Court’s ruling raised concerns for the Singapore Police Force (SPF) regarding the standards for apprehension under the MHCTA.

      “The Court found that the detained subject had ‘unusual’ behaviour, but these did not qualify as symptoms of someone with a mental disorder. The Court also said that the officer took a dislike to the detained person and made up observations about him” (Mr Shanmugam, Parliamentary Debate, 2 February 2023).

  2. Police Accountability:
    • Mr Shanmugam stressed the mechanisms ensuring police accountability, including body-worn cameras, internal investigations, independent reviews by panels of eminent individuals, and court oversight.
    • He shared statistics showing that approximately 78 police officers annually face disciplinary proceedings, with around 10 officers charged in court each year for criminal offences.

      “We will not hesitate to take action when there is an infraction – that is essential to maintain trust with the public and discipline within the Force” (Mr Shanmugam, Parliamentary Debate, 2 February 2023).

  3. Concerns with the Judgement:
    • The Minister expressed reservations about the potential implications of the judgement on police operations. He noted that the decision might affect how officers interpret and apply provisions of the MHCTA, such as what constitutes "danger" and how apprehensions under the MHCTA differ from arrests under the Criminal Procedure Code (CPC).

      “We are studying the Court’s comments carefully. Decisions in individual cases can have a much larger and unintended effect of negatively impacting how officers react in future to situations” (Mr Shanmugam, Parliamentary Debate, 2 February 2023).

  4. Future Actions:
    • The Attorney-General’s Chambers (AGC) and the SPF were reviewing the judgement to determine whether to file an appeal or recommend legislative amendments.
    • If the Court’s findings were deemed reasonable and correct, the Ministry would update operational guidelines to ensure officers fully understand their duties under the MHCTA.

      “If we reach the conclusion that the Court’s findings are in fact… reasonable and correct, we will internalise that and make sure the key points are made clear to our officers” (Mr Shanmugam, Parliamentary Debate, 2 February 2023).

No Appeal Filed

Despite initial consideration, no appeal was filed by the AGC against the High Court’s decision.

  1. ↑ https://www.elitigation.sg/gd/s/2021_SGCA_79
  2. ↑ https://www.elitigation.sg/gd/s/2021_SGHC_202
  3. ↑ https://www.elitigation.sg/gd/s/2023_SGHC_14
  4. ↑ https://www.elitigation.sg/gd/s/2023_SGHC_52
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