The death penalty and the “14.99g” charge

By la nausée (http://etrepoursoi.wordpress.com)

While I was searching Lawnet for death penalty cases last December (preliminary statistics here), I also happened upon certain cases involving (to put it mildly) an interesting use of the Public Prosecutor’s discretion as regards the Misuse of Drugs Act.
Before this, I’d only known through hearsay that the prosecution occasionally presses a non-capital charge against a drug trafficker even though the actual quantity involved would have attracted the mandatory death penalty. (Alex Au mentions this practice in his article, in the second blurb in the right column.) So, even if the accused was found with 30g of heroin, he is charged with trafficking “not less than 14.99g”.
Of course, the prosecutorial discretion may be exercised in other ways to avoid the mandatory death penalty. For example, by pressing a charge of possession instead. Indeed, that’s been done sometimes. But this may potentially result in a manifestly inadequate penalty — even though the maximum sentence of 10 years’ jail for possession of a controlled drug is itself nothing to scoff at.
One might also say that the prosecution is simply exercising its discretion to charge for 14.99g of the heroin, but not the other 15.01g. The charges actually brought need not take into account every fact which occurred, or every act by the accused.
Compare the case where X breaks into Y’s house, kills Y and makes off with Y’s possessions. Most people would agree that the prosecution is entitled to charge X only for murder, without also charging him for criminal trespass or burglary. Thus, during X’s trial, the fact that X entered Y’s house illegally and stole some things becomes largely irrelevant. One might say that the “14.99g” case is not all that different — the prosecution is simply proceeding on certain facts, while ignoring others.
But here are the “14.99g” cases I’ve found between 1998 to 2009 (I may have missed a few):

• Public Prosecutor v. Balakrishnan a/l Sannasy [2008] SGHC 6: The appellant, along with one other co-accused, was charged with trafficking “not less than 14.99g of diamorphine”. Both were caught in a Central Narcotics Bureau entrapment operation. In mitigation, the appellant argued that he “had an unhappy domestic life as he had a 14-year-old son who was born with a mental retardation, and also that he and his wife did not earn enough to provide money for his family’s medical expenses”. A sentence of 24 years’ jail and 15 strokes was meted out to both accused persons.
• Public Prosecutor v Dhanabalan s/o A Gopalkrishnan [2003] SGHC 178: The accused, aged 33, had been recently retrenched from his job at Natsteel, and was selling food at a coffeeshop. His friend, Raman Selvam, offered him $100 for each block of cannabis he helped Raman cut and pack. In the judgment, it was noted that “[t]he prosecution accepts that the accused was not the main trafficker” (emphasis added). The accused was charged with trafficking 499.99g of cannabis and 749.99g of cannabis mixture, and was sentenced to 20 years’ jail and the maximum 24 strokes of the cane. Among the mitigating factors considered was “the co-operation that he had rendered the Central Narcotics Bureau and the prosecution in the investigation of his case as well as Raman’s.“ Raman himself was charged with and convicted of trafficking 2715.6g of cannabis, and sentenced to death.
• Public Prosecutor v Rahmat Bin Abdullah [2003] SGHC 206: Both the accused in this case were originally charged with trafficking 1063g of cannabis. This charge was reduced by the prosecution to one involving 499.9g of cannabis; both accused pleaded guilty to the reduced charge. The first accused was a 59-year-old taxi driver, while the second accused was a 45-year-old unemployed Malaysian living in Singapore. For the trafficking charge, they were each sentenced to 22 years’ jail (and for the second accused, a further 15 strokes; the first accused was spared caning because he was over the prescribed age limit of 50 years).
• Public Prosecutor v Yap Siew Luan [2002] SGHC 93: The accused was a 45-year-old Singaporean woman working as a part-time driver. She was arrested while driving from Malaysia into Singapore through the Woodlands Checkpoint, and subsequently charged with importing not less than 249.9g of methamphetamine without authorization. The judge noted that the original charge alleged importation of 386.1g, “which would have attracted the mandatory death penalty upon conviction”. The accused was sentenced to 24 years’ jail.
• Gulam bin Notan Mohd Shariff Jamalddin v Public Prosecutor [1999] 2 SLR 181; [1999] SGCA 12: The two appellants in this case were originally tried with one Nor Azman bin Mustaffa for trafficking 392.66g of diamorphine. Nor Azman’s charge was subsequently amended — he was charged with abetting the two appellants to traffic in not less than 14.99g of diamorphine. He pleaded guilty to this and two related charges, and was sentenced to 28 years’ jail and 15 strokes in total. The two appellants were sentenced to death.
• Public Prosecutor v Lim Kim Hock [1998] SGHC 274: The judge in this case noted: “for the first charge, the total quantity of diamorphine found in the Accused’s possession was actually 44.65 grammes. As a result, the Accused had originally faced a capital charge which was subsequently reduced to the present first charge.” This was for trafficking in 14.99g of diamorphine. The accused had been found to be HIV-positive. He had failed his PSLE exams three times and left school, working as a shop assistant and lastly as a painter on an odd-job basis. In deciding on the sentence, the judge observed: “since the Accused is facing a potential death sentence of another sort by virtue of his medical condition, I think, in the words of Shakespeare, “the quality of mercy is not strained” by reducing the punishment to the absolute minimum for each charge”. The absolute minimum for the trafficking charge, i.e. 20 years’ jail and 15 strokes, was thus applied.

The death penalty and the “14.99g” charge

TOC: The legal cannon of death

The following article is Part One of a two-part report which looks at the provisions in the Misuse of Drugs Act and certain processes of law regarding the application of the mandatory death penalty.

Drug trials hardly elicit any sympathy from us. It testifies to the efficacy of state indoctrination that we, in our obsession with discipline and order, find unquestioning appeal in the logic of deterrence.

We have faith that our tough drug laws keep our streets safe. It may seem strict, but that’s tough justice for you, we would reason. But no matter how statistically fascinated we are with having low crime (or the low prevalence of drugs), it remains to be seen whether justice has been necessarily upheld.

There can be ruptures between law and justice, and this is clearly evinced in the Misuse of Drugs Act: ironically living up to its name, the Act has been misused with its narrow definition and interpretation to callously dispense away with both justice and human lives.

Mandating the death penalty for the trafficking of either 15g of diamorphine (or prescription-grade heroin), 500g of cannabis, 30g of cocaine or 250g of methamphetamine, the Act has been premised on the assumption that these amounts suggest a purpose beyond personal consumption.

However, it does not even require any actual physical act of trafficking for a tryst with the noose. An amendment in 1993 determined that the mere intention to traffic is tantamount to an act of trafficking itself.

Legal scholar Michael Hor has identified trafficking in Singapore to mean the selling, giving, transporting, sending, deliver or distributing of drugs, and this ‘breathtakingly wide’ scope allows a trafficking charge to be contrived out of even the most innocuous of behaviour – such as giving drugs for a partner to consume or passing to a friend for safekeeping. This negates the Act’s initial intention to discern ‘between dealers in drugs and the unfortunate addicts who are their victims’.

As the judiciary grapples with cases that hover between possession (which provides relatively light punishments) and trafficking, it is disturbing to realize that mere ambiguous semantics has precariously elevated the chances of ‘unfortunate addicts’ to suffer the certainty of death.

TOC: The legal cannon of death

A call on the Government for a moratorium on the death penalty for traffickers

sgdeathpenalty has been actively campaigning to raise awareness on the use of the mandatory death sentence for drug traffickers like Yong Vui Kong, but the fact of the matter is that for every Yong Vui Kong, there maybe a dozen or so sentenced to the gallows that do not get publicised in the press.

The review of the law is pressing, and sgdeathpenalty together with The Online Citizen, calls for an immediate convening of a working group for a moratorium on the mandatory death penalty. How many lives must be wasted before we finally bring this issue to the table to be discussed? Is there no better alternative punishment for borderline drug cases like these, and is there no consideration that there is possibility of repentance and that the condemned person will bear no harm to society if given the chance to live?

To quote a netizen, "when the State brings its criminal jurisdiction to bear, it acts on behalf of all Singaporeans. If Vui Kong is hanged, he will be hanged on your name and mine." This statement bears true to all similar judicial executions carried out in Singapore.


TOC Editorial – A call to suspend all executions

The Online Citizen calls on the Singapore Government to impose a moratorium on all executions for those sentenced under the Mandatory Death Penalty (MDP). Our Special Focus Week the next 7 days or so urges the Singapore Government to consider the concerns and issues raised with regards to, in particular, the Misuse of Drugs Act and its provisions. TOC believes that there are serious and valid concerns about the application and provisions of the MDP which mandate a moratorium on executions. We urge the Prime Minister and his Government to consider these concerns and to allow an open and robust discourse with members of the public, the legal fraternity and Members of Parliament so that a true national consensus on judicial executions, based on informed considerations, is arrived at. We begin our appeal to the Government with our editorial position on the matter.

The Court of Appeals’ judgement on the Yong Vui Kong drug trafficking case on 31^st December 2009 has reopened questions about the constitutionality of the mandatory death penalty. In a rather unexpected ruling, the court signalled its willingness to hear arguments against the usual precedents on this issue.

Rightly so, even though those arguments are well-worn and familiar. The chief drawback is that the mandatory death penalty leaves no room for judicial discretion and the consideration of mitigating conditions, such as the age of the defendant or his personal circumstances, and whether there is the possibility of rehabilitation. It is therefore needlessly arbitrary and cruel. Contrary to popular belief, there is also no definitive study showing that the mandatory death penalty has the much-lauded deterrent effect, in part because it is difficult to prove what might have happened without it. But chances are that effective enforcement and an expeditious court system play more important roles in deterring offenders.

The mandatory death penalty for drug trafficking is particularly egregious for several reasons. First, it lacks a sense of proportionality. A young unwitting drug mule (a typical profile of those arrested for trafficking) caught with 30 grams of morphine, for example, gets no more sentencing consideration than a serial killer, while this does nothing to deter the real traffickers who put him up to it. Second, the defendant is saddled with an unusually onerous burden of proof: if caught in possession of a drug, he is automatically presumed to be responsible for it and to know its nature, and if caught with a certain amount he is alleged to be trafficking.

In spite of this, detractors have argued that public support for the death penalty in Singapore is overwhelmingly strong. A commonly cited 2005 survey by the Straits Times indicated a 95% margin of support among 425 respondents, though the survey was undertaken just weeks after the high-profile drug trafficking Nguyen Tuong Van case involving an Australian-Vietnamese national at that time. Even so, there was no indication that the mandatory death penalty was properly understood or differentiated from capital punishment in general.

Furthermore, the figure might reflect apathy rather than conviction. Public awareness on crime and punishment issues is low: the Law Society, for instance, pointed out in 2009 that local universities barely cover the study of criminology or penology, and that there were scant statistics for research on the causes of crime and the effects of penal policies. Public opinion might be very different if the human cost of the mandatory death penalty was given greater public airing.

In any case, legal thinking on the subject has been gradually evolving. In 1981, the Privy Council found in the Ong Ah Chuan case that the mandatory death sentence for drug offences was in keeping with constitutional provisions. Since then, the Ong Ah Chuan ruling has formed the main plank of the state’s arguments for enforcing the mandatory death penalty for trafficking, but in 2004 the Privy Council reversed its position by ruling that “it is no longer acceptable, nor is it any longer possible to say…[as in the Ong Ah Chuan case]… that there is nothing unusual in a death sentence being mandatory.” The Yong Vui Kong ruling subsequently marked a change in the Court of Appeals’ receptiveness to arguments against the constitutionality of the mandatory death penalty, despite a ruling by the Court in the Nguyen Tuong Van case that the prohibition against cruel and inhuman punishment could not be found in the Constitution.

It is worth noting that legal thinking has usually been ahead of public opinion: right up till capital punishment was suspended by the British legislature in the 1960s, there remained strong public support for it to be retained for some serious offences. Given the gaping flaws in Singapore’s mandatory death penalty, it is about time that such an anachronistic policy be discarded. The Court of Appeal’s refreshingly open-minded attitude towards considering this proposition is therefore welcome.

In the meantime, it is only right for the government to impose a moratorium on executions under the mandatory death penalty – whatever the outcome of the court’s deliberations – so that a more informed public discussion can take place.

TOC Editorial – A call to suspend all executions

Belarus on its own way towards capital punishment ban

Belarus will seek its own way to cancel capital punishment. The statement was made by Nikolai Samoseiko, Chairman of the Legislation and Court Affairs Commission of the House of Representatives of the National Assembly, head of the parliamentary ad hoc group on capital punishment matters, on 22 February.

The MP said that the ad hoc group is supposed to find Belarus' indigenous way to deal with the capital punishment ban due to the country's geopolitical location. On the one side Belarus is bordered by the European Union where all the countries have banned capital punishment. On the other side there is China, the leader in the number of issued death penalties, and Russia which has vetoed capital punishment but the general public is ambiguous about it.

According to the MP, Belarus is now ripe to discuss whether it needs death penalties. There are strong pro and con arguments. In particular, those in favor believe that the possibility of death penalty can prevent crimes while those who oppose capital punishment point out that courts can make errors. There can be no winners in this dispute because the decision will be made depending on the political will, opinion of the general public, the legal base, believes Nikolai Samoseiko...

Belarus on its own way towards capital punishment ban

Most Singaporeans don't understand the term "mandatory" in death penalty

Kent Ridge Common article:
Singaporeans who do not understand what ‘mandatory’ means
Singapore — Street Journalism on the part of The Online Citizen team recently posed this question to Singaporeans: Do you support the mandatory death penalty for drug trafficking?
And the results were shocking.
Not because many were actually against the death penalty contrary to the much bandied about claim that most Singaporeans support the sentence for drug traffickers, but the startling relevation that most Singaporeans interviewed do not even understand what the word ‘mandatory’ meant.
Save for a young girl interviewed at the start of the video at Bugis Junction earlier last month, young Singaporeans who were posed the question had difficulty understanding its meaning. Suffice to say, it was the first time that many of them had thought about the issue of a mandatory death sentence for all drug traffickers in Singaporea without the discretion of the presiding judge weighing in to the verdict.
Judging from the protracted hesitation that many of these youths showed before they answered the question after a slight nudging from the interviewer, it is also clear that many of these youths do not have a latent position on the issue of mandatory death sentence in Singapore....