We act for the applicant in the case of Nagaenthran a/l K Dharmalingam v Attorney-General  SGHC 112 (“Nagaenthran”), an application for leave to commence judicial review proceedings against the decision of the Public Prosecutor not to issue the applicant a certificate of substantive assistance under Section 33B(2)(b) of the Misuse of Drugs Act (the “MDA”). The decision in Nagaenthran was handed down on Friday 4 May 2018.
A key issue in this case was the effect of Section 33B(4) of the MDA, which provides that “The determination of whether or not any person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities shall be at the sole discretion of the Public Prosecutor and no action or proceeding shall lie against the Public Prosecutor in relation to any such determination unless it is proved to the court that the determination was done in bad faith or with malice.”
The novel question presented to Justice Chan Seng Onn was whether the determination of the Public Prosecutor under Section 33B(2)(b) can be challenged on grounds of judicial review other than bad faith, malice or unconstitutionality.
Justice Chan answered this question in the affirmative. He accepted our submission that the landmark decision of the majority of the House of Lords in Anisminic v Foreign Compensation Commission  2 AC 147 should continue to be endorsed as part of Singapore law. The effect of endorsing this decision is that Section 33B(4) must be construed such as to allow an applicant to challenge the Public Prosecutor’s decision on the basis that he had committed an error of law causing him to exceed his jurisdiction under s 33B(2)(b) of the MDA (a “jurisdictional error”). Justice Chan however left open the question of whether all errors of law committed by the Public Prosecutor would qualify as a jurisdictional error, and therefore be susceptible to judicial review.