NTU's student publication raises awareness of MDP amongst students

NTU's student publication, The Tribune, carried in its front page of its March issue a heart-wrenching article on Yong Vui Kong, a teen drug runner who was sentenced to death for trafficking 47g of heroin into Singapore.

Specifically, it drove to the crux of the case, the mandatory death sentence which was the required punishment for convicted drug traffickers under Singapore law.

The Tribune, in its article wrote, "The core of Mr Yong's lawyer's appeal - the basic right to life. Singapore's mandatory death penalty for possession of drugs always makes for heated discussion. Lawyers argue that it fails to deal with the right to life and evolve in the context of international laws."

The Tribune then asks NTU students a thought provoking question, "Is it time for change?"

In raising awareness amongst students, The Tribune has done NTU's student body a great service by providing students a refreshing alternative view, and encouraging them to form an informed opinion on capital punishment in Singapore.

Whether one is for or against the mandatory death penalty, tertiary institutions should be a place where opinions on the issue are debated.

Is capital punishment a form of deterrence? What are the statistics of executed drug traffickers in Singapore since the 1970's? What are the possible alternative punishments for the drug trafficker?

These are just some of the questions that can come up in a tertiary-level debate or discussion group that the respective tertiary institution's Student Unions can consider organising.

sgdeathpenalty also urge other tertiary publications to take up the challenge of encouraging a more critical-thinking student population through raising awareness on various social and political issues.

The mandatory death penalty is one of those issues that require urgent attention.

In most part of the world, tertiary institutions have always had the buzz of independent student activity that entails the coming together of the top young minds of the country.

Being part of a cosmopolitan and economically advanced nation, Singapore's educational institutions should be no different.

Heroin Smuggler Challenges Singapore Mandatory Death Sentence

Lawyers for a young Malaysian man facing the death penalty for drug smuggling are arguing that the mandatory death sentence is inhumane and disproportionate.

Singapore executes anyone found guilty of importing more than 15 grams of drugs.
It is one of the few countries in the world to impose compulsory death sentences for drug offences.

As Monica Kotwani reports from Singapore, it is being seen as a key challenge against the longstanding law.
Ah Leong takes a rare break from working in the kitchen at the Marriott Hotel in the heart of Singapore’s shopping district.
He wrings his hands anxiously. His brother Vui Kong is on death row.
Ah Leong says they have had a tough life.
“My parents split up when he was just three. My father left us and my mum had to support us.”
Ah Leong says seeing his mum struggle to survive caused his brother to be attracted by the prospects of riches in the capital. There he was lured into drug trafficking.
“We’re from Sabah, and very poor. You work so hard but you earn very little. But in Kuala Lumpur, Vui Kong’s boss called him to work, and paid him well. He was told by his boss to take these things and give them to people. He could not say no to his boss’s demands.”
Vui Kong was 19 years old when he was arrested in Singapore for possessing 47 grams of heroin, more than twice the maximum amount that warrants the mandatory death penalty.
He was later convicted of trafficking drugs, and sentenced to death.
But in December last year, a few days before Vui Kong was due to be hanged his lawyers obtained an emergency reprieve.
M Ravi is his appeal lawyer.
“When we say mandatory death sentence means basically judges don’t have discretion. Just close your eyes, and that’s it, and execute. Don’t have to look at the person’s background and all that. You know in a sentencing regime, there’s a plea in mitigation, to mitigate your circumstances, it’s part of the sentencing process, so, it was not only that the death penalty was already harsh, but to impose that, it’s just cruel and unusual punishment.”
Taiwan recently abolished the mandatory death penalty and China, which continues to execute prisoners, allows judicial discretion in sentencing drug-related cases.
Ravi says Singapore is out of touch.
“It is a very outdated, outmoded approach. It is not compatible with evolving standards of human rights decency. 95 percent of Asian countries have abolished it.”
Singapore has seen a big decline in its use of the death penalty but the government is resisting any change to the law.
In 2009, Law Minister K Shanmugam cited a survey conducted by Singapore’s main newspaper, The Straits Times, which found that 95 percent of Singaporeans support the death penalty.
But Andrew Loh editor of the Online Citizen website believes this is not an accurate picture.
“There’s a difference between the death penalty and the mandatory death penalty. From my experience, from talking to people, explaining to them what it is, most of the people, when they understand it more, they do not support the mandatory death penalty.”
Andrew says there have been some high profile execution cases in the last few years that involved the Australian and Nigerian governments but, he says, so far the Singaporean government has not relented to international pressure.
“Whenever such cases come out, the government turns the whole issue around to become about national sovereignty - that we have the right to impose our own set of laws. I don’t know why they do that. Maybe to get the general public to support the government, because if you turn it to a national pride kind of issue, people will feel these other countries are attacking us so we have to defend the government.”
I’m standing outside the Supreme Court of Singapore, where Yong Vui Kong’s appeal is being heard.
In the hearing, Singapore’s Attorney General, Walter Woon is arguing that the Mandatory Death Penalty deters others from doing the same.
Asia Calling requested an interview with the Attorney General many times but I was informed by a staff member that he was on a very long leave. An email request for an interview with the Ministry of Home Affairs was denied.
Defence Lawyer Ravi says research in Hong Kong has shown that the death penalty does not reduce crime.
“The fact that it does not deter has been researched by Jeffrey Fagan. Jeffrey Fagan did a study between HK and Singapore - a tale of two cities, that’s the title of his research. After the abolition of capital punishment in HK, there was a reduction in terms of homicide as well as drug trafficking in Hong Kong.”
Back outside the Marriot Hotel Ah Leong has nearly finished his break.
He says he just wants his little brother to live.
“I hope for anything but the death penalty. Anything else is ok. In prison, he can learn, to cook, or read. Twenty or thirty years, it doesn’t matter. It’s still a chance for him, because he’s still such a young boy.”
Ah Leong’s mother suffers from depression and he fears she will not survive if Vui Kong is hanged.
So the family has decided to keep her in the dark.
“As long as she lives, we will never tell our mother. We’ll just tell her that he has been caught, and is in prison. I think this is for the best.”

Asia Calling: Heroin Smuggler Challenges Singapore Mandatory Death Sentence

When an intellectually handicapped gets systematically executed by the system

Law student Mohan Gopalan writes a compelling piece proving once again that removal of mandatory death penalty can indeed save victims that can fall into the trap of the non-discretionary nature of the law.

Described as a "guileless simpleton" with borderline IQ of 74 by trial judge M.P.H. Rubin, he delivered a lesser sentence to the accused, Rozman bin Jusoh, a 22-year-old Malaysian, to 7 years imprisonment for possession of drugs.

But the prosecution appealed and took it to the High Court where they sentenced the accused to death, noting that since the sentence was mandatory, "such considerations (of his subnormal intellect and the narcotics officer instigating the accused to produce drugs) would only be relevant elsewhere".

If even the intellectually handicapped gets systematically executed by the state, what are mitigating factors useful for? Isn't mitigation a redundant process in capital cases like drug trafficking? Shouldn't it then be time for this section of the law to be updated?

There isn't much time for deliberation on this issue. The law regarding capital punish for capital offences must be updated to give judges the discretion to make a fairer ruling. When even one person gets unfairly executed, it is a life gone and there can be absolutely no compensation for the family or the executed convict.

TOC: When discretion could have saved a life: the case of Rozman bin Jusoh

By Mohan Gopalan

On 24 November 1993, an undercover officer from the Central Narcotics Bureau (CNB) approached Rozman bin Jusoh, a 22-year-old Malaysian, asking him if he had cannabis. Rozman told the officer that he did not have any cannabis. Undeterred by this reply, the officer insisted that Rozman find some cannabis for him. Rozman replied, “We will see tomorrow”.

The CNB officer approached Rozman again the next day, asking again for cannabis. Rozman told the officer to wait while he consulted his friends. He found a friend who agreed to supply the drugs as requested, and arranged to hand them to the officer later that evening.

The officer suggested they meet at a Kentucky Fried Chicken outlet. Rozman brought the drugs in a plastic bag, which he placed on a chair at the table where he and the officer were seated. The officer stood up and walked to the counter to order a drink, and so did Rozman, leaving the plastic bag unattended on the chair. The officer then gave a signal, upon which other CNB officers entered the outlet and arrested Rozman.

Rozman was charged with trafficking in 1040.8g of cannabis. Under the Misuse of Drugs Act, trafficking in more than 500g of cannabis attracts the mandatory death penalty.

***

Over the course of investigations and trial, evidence slowly emerged that Rozman was intellectually subnormal.

The CNB interpreter who assisted in recording the statements Rozman had made to the police testified that Rozman was extremely slow. He had difficulties answering simple questions, such as how many brothers and sisters he had. Sometimes, it took him up to five minutes to answer questions as straightforward as those.

A clinical psychologist who had examined Rozman was also called to testify. She found that Rozman had an IQ of 74, which was borderline. Having also observed Rozman during the trial, she testified that Rozman could be easily manipulated by others and would not think deeply about the consequences of his actions. She also thought that Rozman might not be capable of discerning right from wrong.

The trial judge, Justice M.P.H. Rubin, also noticed that something was amiss.¹ He noted that Rozman’s oral testimony was “punctuated with long pauses and was generally delivered in a halting manner”. At times, it was “hazy and disoriented”.

The CNB interpreter and the psychologist both emphasised that they did not think that Rozman was simply faking it. Likewise, the judge noted:

“Having observed the accused in the witness box, it cannot be gainsaid that he gave evidence in an unshrinking manner. There was never a trace of squirming, twisting or shifting. His evidence was, however, punctuated with frequent pauses, sometimes long, yet there was no sign that he was taking his time to contrive, concoct or improvise. In fact, he often looked plainly confused, sometimes even by straightforward questions.”

The judge also noted that Rozman’s “demeanour, inflexion and his swaying body movements…at times suggested that he was apparently oblivious to the seriousness of the charges facing him”. To the judge, Rozman was:

“… a guileless simpleton without any gift for contrivance. It must be so, for which trafficker would leave the drugs unguarded on a chair in a public place and walk up to the counter and ask for a drink?”

The judge did not think that Rozman’s subnormal intellect constituted unsoundness of mind, which would have been a full defence to the charge. However, given his subnormal intellect and the way the CNB officer had acted, the judge did not think it could be said that Rozman had intended to traffick in the drugs. The judge reasoned:

“It was…clear from the evidence that the CNB agent and the undercover CNB officer were more than mere agents, and had, in fact, undertaken a substantially active role in persuading [Rozman] to sell them drugs… [Rozman] was a person without guile and would not have embarked upon this expedition for a mere $100 if not for his feeble mind which seemed to have been overborne by the CNB agent and the CNB operative… There was a grave doubt raised as to whether he could be criminally responsible to warrant the mandatory death sentence, in light of his intellectual disability and the real possibility of being manipulated.”

The judge thought that “it would be unsafe for the court to proceed to convict him on the charge of trafficking”, and therefore convicted him for the lesser offence of possession instead. He sentenced Rozman to 7 years’ imprisonment.

Dissatisfied, the prosecution appealed. The Court of Appeal, presided over by Chief Justice Yong Pung How and Justices of Appeal M. Karthigesu and L.P. Thean, disagreed with Justice Rubin’s decision in the High Court.² The Court of Appeal judges took the view that Rozman’s subnormal intellect was not sufficient to negate his intention to traffick in the drugs. They thought that while Rozman “may have been easily induced or instigated” by the CNB officer to sell the drugs, this fact and his subnormal intellect could be taken into account only in mitigating the sentence. However, they noted that since the sentence was mandatory, “such considerations would only be relevant elsewhere”. Rozman was therefore convicted on the charge of trafficking.

***

Rozman’s case provides an illustration of the problematic nature of the mandatory death penalty. While the judges were sensitive to the mitigating factors in Rozman’s case, they could not properly take them into account, and were left with no choice but to sentence Rozman to death. If the death penalty had not been mandatory, the judges would have been able to take into account Rozman’s subnormal intellect, as well as the conduct of the CNB officer. They could then have decided whether to award Rozman a long prison sentence, instead of the death penalty.³

Without the benefit of this discretion, Rozman bin Jusoh was hanged till death on 12 April 1996.

TOC: When discretion could have saved a life: the case of Rozman bin Jusoh

Blogger creates Anti-Mandatory Death Penalty Photo Project

By kirsten (http://kixes.blogspot.com)

Yesterday I started The Anti-Mandatory Death Penalty Photo Project, and was able to see the power of social media at work almost right away. One day later, the Facebook group has 154 members (with more joining every time I hit 'refresh'), and the photos are starting to trickle in.

Being a Facebook group, I first promoted the project by inviting all my friends, and posting the link on my profile (and urging others to do the same). I also promoted the group a little via Twitter, as well as this blog. TheOnlineCitizen also posted on their Facebook group, as well as their website. We didn't even have to leave our homes or workplaces to spread the word, such is the capability and power of social media.

I find it extremely heartening and encouraging to see social media working so well for a good cause. What a great time it is for discussion and the sharing of opinions! What a way to make a difference, to have our voices heard! It is nice to see people who support the same cause that I do, who are working towards the same ends that I am working towards, and know that if it weren't for social media we might have just been isolated individuals drowned out by the overwhelming white noise of the big wide world. But thanks to social media and the accessibility it provides, we are coming together, and our message is getting stronger or stronger.

So this is a big thank you to anyone who has joined the group, submitted a photo and/or helped to spread the word about The Anti-Mandatory Death Penalty Photo Project! Thank you for doing your part in raising awareness on this often-buried issue, and here's to change coming our way!

Putting social media to good use

TOC: M Ravi: Death penalty should not be dispensed ‘in an automated, robotic, spasmodic approach’

By Yini Chua

At the appeal hearing for Yong Vui Kong today, the Court of Appeal, consisting of Chief Justice Chan Sek Long, Justices of Appeal Andrew Phang Boon Leong and VK Raja, chose to reserve its judgment instead of delivering a verdict.

Yong is facing the mandatory death penalty for drug trafficking.

He has been through 2 stays of execution. Escorted into the courtroom by four uniformed guards, the 21 year-old Malaysian hardly moved in his seat throughout the hearing, with his shoulders hunched and head bent as he followed the proceedings intently via the court translator.

Representing Yong was Mr M Ravi of LF Violet Netto. His core argument was centered on the principle of one’s right to life, as echoed by Article 9(1) of the Singapore Constitution, which states that no person shall be deprived of his life or personal liberty save in accordance of the law.

Mr. Ravi challenged the constitutionality of the mandatory death penalty, stressing that it failed to deal with Article 9(1) adequately and adapt to changing standards of international law.

He also argued that Article 9(1) prohibits the arbitrary imposition of the death penalty, an act which is also against customary international law. According to Mr. Ravi, there is growing universal consensus that the mandatory death penalty is a cruel and unusual punishment and involves deprivation to life.

‘Customary international law evolves with the changing standards of human rights around the world,’ he posited.

Attorney General Walter Woon agreed that the issue is the constitutionality of the mandatory death penalty, not its desirability. As such, he argued that its implementation is constitutional because it is in line with laws passed by the legislature.

Mr. Woon also argued that ‘it is state practices that determines international law, not the other way round’.

However, he disagreed with Mr. Ravi with regards to the trend in international law, emphasizing that the international law has accepted the mandatory death penalty.

‘It is fallacious to assume that the law has changed,’ he said, reinforcing his argument that the issue of the abolition of the mandatory death penalty is simply a matter of controversy.

Another core argument that Mr. Ravi laid out was that the mandatory death penalty was contrary to the ‘equal protection’ clause as enshrined in Article 12(1) of the Constitution. He argued that it does not leave room for judicial discretion and specific circumstances, and the exclusion of such an integral process has resulted in a one-size-fits-all standardized sentencing process that is inherently wrong. With such rigid application, the law ceases to serve justice.

To illustrate this fact, Mr. Ravi pointed out the rationale behind Singapore law, which makes probation more available for minors (persons aged below 21).

Said Mr. Ravi, ‘(Probation for minors) assumes the potential vulnerability of youths, and therefore the shows that the law does indeed look at individual circumstances.’

Along the same vein, the mandatory death penalty infringes upon equal protection because the court is obliged to condemn a drug mule in possession of 15 grams of heroin to the highest penalty of death, but inflicts a lesser punishment upon a professional dealer caught selling for distribution to many addicts a total of 14.99 grams.

Mr Ravi relied heavily on the example of the India for an alternate interpretation. Article 12 of the Indian Constitution, in stating that ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’ is identical with Article 9(1) of the Singapore Constitution. The Indian Supreme Court has interpreted it in a different way: the process by which someone is subject to death must be a fair, just and reasonable procedure.

As such, the Indian Supreme Court prohibits the mandatory death penalty even for the most severe of crimes. The death penalty sentence is only meted with judicial discretion.

In his counterargument, Mr. Ravi criticized the simplistic logic that underpins Attorney General Walter Woon’s argument, who asserted that the mandatory death penalty acts as a deterrent against drug trafficking. He argued that there have been no substantial studies based on the deterrent value of MDP.

‘Even the state is silent when is comes to this issue,’ he pointed out.

He also cited a number of Asian countries which have abolished the mandatory death penalty, including China, Taiwan, Korea and India.

Justice of Appeal Andrew Phang tried to clarify the debate further by enquiring whether ‘decisions in other countries (are) a product of domestic consensus or result of international customary law’.

Mr. Ravi ended his argument on a passionate note, beseeching the judges to read the constitution in accordance to the spirit of the law, and ‘not in an automated, robotic, spasmodic approach’ that does not fulfill the need for justice.

TOC: M Ravi: Death penalty should not be dispensed 'in an automated, robotic and spasmodic approach'

TOC: Judges reserve judgement in Yong’s mandatory death penalty appeal

By Wong Chun Han

The Court of Appeal reserved judgement today in the case of convicted Malaysian drug mule Yong Vui Kong, who has challenged the constitutionality of the mandatory death sentence he received.

Chief Justice Chan Sek Keong told a packed courthouse, after a two-and-a-half-hour-long hearing, that the Court would retire to consider the case and announce its decision at a later date.

Yong, who was sentenced to death in November 2008 for trafficking 47 grammes of heroin, will have his execution stayed pending the outcome of the appeal.

M Ravi, representing 21-year-old Yong, argued the unconstitutionality of the mandatory death penalty on the grounds that it does not allow judges to sentence criminals with punishments proportionate to their crimes and individual circumstances.

He told appeal judges CJ Chan and Justices Andrew Phang and V K Rajah that this denial of judicial discretion in capital cases amounted to inhuman punishment.

The mandatory death penalty thus violates customary international law forbidding the use of “cruel, inhuman or degrading treatment or punishment”, as stated in Article 5 of the Universal Declaration of Human Rights.

Such a violation means the mandatory death penalty falls foul of Article 9 (1) of the Singapore Constitution, which states that “no person shall be deprived of his life or personal liberty save in accordance with law”, Ravi argued.

The Court thus ought to exercise it powers of constitutional adjudication and rule the mandatory death penalty as unconstitutional, he added.

Clarifying that he was against the mandatory imposition of the death penalty and not the death penalty per se, Ravi concluded: “Kill if you must, but not in an automated, robotic, spasmodic and reactionary manner.”

Attorney-General Walter Woon, responding for the prosecution, challenged Ravi’s arguments, saying that the removal of the mandatory death penalty is a political issue rather than a legal one, its retention or otherwise was a matter for Parliament to decide.

He also challenged Ravi’s argument that the deprivation of judicial discretion in sentencing amounted to inhuman punishment, since the same logic ought to then apply to all mandatory penalties.

The mandatory death penalty, AG Woon said, also remains permissible under both common and customary international law.

No rule of customary international law denounces the use of the mandatory death penalty, he claimed, as the punishment is being applied by 31 countries – including China and India. Its use was not deemed objectionable by world powers such as the United States and Britain under the Universal Declaration of Human Rights for much of the 20^th century.

Ravi countered these arguments, noting that the current situation – where only the Court has no discretion in deciding the punishment in capital cases – is untenable. In contrast, the prosecution has discretion over whether to press charges for a capital case while the President exercises clemency powers.

Given that the law makes assumptions on criminal culpability, vis-à-vis ages of majority for example, providing discretion in sentencing would allow the Court to investigate these assumptions through the considering of individual circumstances.

Ravi also clarified that China and India in fact operate discretionary death penalties, and refuted AG Woon’s suggestion that Asian countries have resisted European attempts to create a new legal custom, given that many Asian countries do not impose mandatory death penalties.

Hong Kong has no death penalty, while China, India and Japan do not have the mandatory death penalty, and South Korea and Taiwan have held moratoriums on executions, he said.

Southeast Asian nations have also made overtures with regards to the protection of human rights since signing the Asean charter, Ravi added.

Ravi was aided by three London lawyers, including international human rights law expert Edward Fitzgerald QC of Doughty Street Chambers, who helped research the case. All four are working on a pro bono basis.

No date has been set for the Court’s decision, which is expected within the next three weeks.

TOC: Judges reserve judgment in Yong's mandatory death penalty appeal

TOC: Discretion to the judges – judgment reserved

By Kirsten Han

It’s a “slippery slope” argued Attorney-General (AG) Walter Woon; the thin edge of the wedge which pitted the legislature against the judiciary. With the multiple notices around Singapore’s borders warning against carrying drugs, “no one can traffic drug by accident”, he insisted, and hence the mandatory death penalty is a necessity to keep the streets of Singapore clean.

As AG Woon was trying to make out his case, behind a glass partition with two police officers on his right and his left, sat Yong Vui Kong; who in 2007, when he was barely 19, became a drug mule, blindly following the instructions of his boss in Johor Baru to give ‘presents’ to people in Singapore. As it turned out, the ‘presents’ were 47 grams of heroin.

As Vui Kong sat meekly in the dock, trying to follow the hearing through the court appointed Mandarin interpreter, Mr M Ravi the defense lawyer for Vui Kong, engaged in a highly technical debate, that the mandatory death penalty is a “cruel and unusual” form of punishment, and that the court should be given discretionary powers in sentencing.

Mr Ravi argued that the judges should be able to make their own decisions based on the details and circumstances of each individual case.

He highlighted the fact that Singapore is one of only fourteen countries left in the world that has the mandatory death penalty, an extremely anachronistic law that does not reflect internationally held views on human rights.

Mr Ravi He also drew attention to his client, who was only 19 years old when he was caught in possession of 47g of heroin, saying that Vui Kong must be considered as an individual case instead of sending him automatically to the gallows under the mandatory death penalty.

While re-emphasising the centrality of his case that he is not arguing for the abolishment of the death penalty, but simply for the removal of the mandatory aspect of the law, Mr Ravi pointed out that no studies have proven that the mandatory death penalty is an effective deterrent when it comes to drug trafficking.

After both sides have presented their cases and arguments, the judges praised M Ravi for the effort he had put into his submission, and thanked him for providing the court with an update on current international practices with regards to the death penalty. They decided to reserve their judgment on the hearing until further notice.

If the Court of Appeal rules that the mandatory death penalty is incompatible with the Constitution of Singapore, it would signal a great change in Singapore’s legal system, especially in drug-related cases.

It is a change however which will require the parliament to pass it into law.

_______________________________________

Sketches: Joshua Chiang

TOC: Discretion to the judges - judgment reserved

LIANAIN FILMS: “For Me, I’m Hoping For A Miracle”

Yun Leong looks like he’s shrunk. He’s lost maybe five pounds since December. There are bags under his eyes. He sounds tired.

“It’s been tough,” he says. “Chinese New Year was not good.”

“How’s your family?”

“They’re coping.”

“And your mother?”

“She’s well.”

He pauses. “She still asks about him.”

Him. Vui Kong. Her youngest.

“She still doesn’t know?”

“No. She’s been told she’ll never see him again. But she doesn’t know he was caught with drugs, or that he’s been sentenced to death.”

The pressure on Yun Leong must be overwhelming. No wonder he looks so gaunt.

We’re meeting just days before Vui Kong’s hearing before the Court of Appeal. His lawyer’s working round the clock, preparing to challenge Singapore’s mandatory death penalty for drug trafficking. It’s a staggering undertaking - stacks of papers, huge bundles of authorities, hours and hours of research. You wonder if the two brothers understand what’s happening.

“My brother’s been learning English so he can read all the documents," Yun Leong says. "It’s very complicated but he’s determined to understand what’s going on. He’s also meditating a lot. He tells me I should meditate too.”

“So, do you?”

He laughs – the first time you’ve ever seen him do that.

“I try, I’m always trying. But I’m just too busy, you know?”

And then he changes the subject. Pulls out a piece of paper from inside his bag.

“Vui Kong wanted me to give you this.”

It’s a little surreal, receiving a letter from death row. But the message is upbeat. There isn’t a hint of self-pity. No plea for mercy. Rather, the boy thanks everyone for their generosity and support.

“I made a mistake because I was uneducated and didn’t know better…I am thankful I wasn’t put to death on the 4th of December.”

They’d as good as given up last year. The family had even made funeral arrangements and were in the midst of saying their final goodbyes. But then the unthinkable happened. Vui Kong’s lawyer succeeded in getting not just one, but two stays of execution.

You wonder what will happen at the next hearing and a knot forms in your throat. Yun Leong senses this. He tells you his brother’s in a good place now. Very calm, very focused. He’s ready to face the worst, but hoping for the best. He’s incredibly strong.

“Unlike our little sister, who still can’t stop crying.”

“And you?”

“For me,” he says, “for me, I’m hoping for a miracle.”

Yong Vui Kong's hearing before the Court of Appeal will take place on the 15th of March, 2010.

LIANAIN FILMS: "For Me, I'm Hoping For A Miracle."

TOC: The story of a boy

Yong Vui Kong’s appeal hearing takes place at 10am on Monday, 15 March 2010.

By Andrew Loh

Yong Vui Kong was 12 when he left his grandfather’s palm oil estate “deep in the forests of Sabah” in Malaysia to strike it out on his own. He had had enough of watching his mother being abused by his grandfather and her relatives. He wanted to help her escape what he now calls “that place of pain”. And so, he made up a story. He told his mother that he had found someone who would take him in as a godson. But the truth was, his “godfather” ran an illegal gambling business. Vui Kong went to work for this man, hoping to save up enough money so he could rescue his mother.

He was eventually thrown out by his godfather. Vui Kong thinks it was probably because he was too small and skinny to be of any use. He ended up washing cars to survive, making about RM$3 a day. It was hardly enough to pay for food, let alone accommodation. He would often pester his friends to put him up for short periods of time. He lived like this for three years.

At 15, he made his way to Kuala Lumpur, the capital of Malaysia, hoping to find a better job. But things didn’t turn out the way he planned. He faced discrimination because he came from a small town and was often beaten up. He found work in a Chinese restaurant but was paid far less than his colleagues.

A local gang recruited him to hawk illegal video compact discs . Soon he was told to help collect debts. He was later given a more “important” job by his “Big Brother”, who promised to pay him handsomely. The man had treated Vui Kong well – feeding him, clothing him and taking him out to fancy restaurants. Vui Kong felt compelled to do anything “Big Brother” said. More importantly, he needed the money. His mother was suffering from severe depression and he wanted to help pay for her treatment.

He started delivering“gifts” to various clients. He did not know it initially, but the colourfully gift-wrapped packages contained drugs.

In 2007, Vui Kong was caught while making a delivery in Singapore. The police found 47.27 grammes of heroin on him. A judge eventually handed him the mandatory death sentence for drug trafficking.

Harsh Reality

In Singapore, hangings take place at dawn on a Friday. Prisoners are only told about their impending execution on Monday. Vui Kong broke down when he was informed that he would be put to death on 4 December 2009. He hadn’t seen his mother in more than two years. She was still battling depression and all through this time, the family had decided to keep the truth from her. But the thought of not saying goodbye was too much for Vui Kong to bear and his siblings decided to fly her to Singapore.

They finally met three days before the scheduled execution. It was an emotional reunion. Vui Kong knelt down before his mother, bowing to her three times. He then begged for her forgiveness and told her he had to “go away forever” to do “penance” for all the bad things he had done. He told her she would never see him again.

Did she understand the meaning behind his words? Perhaps we will never know. What must have been clear to her though was that her son had undergone a dramatic transformation. He had embraced a new way of life in prison and was now a devout Buddhist. He would wake up at 4am every morning to meditate and he eagerly sought the advice of the Buddhist monks who visited him regularly.

For the first time in his life, he was taught to discern right from wrong. He also realised that contrary to what he was told as a child, cigarettes were not the same as drugs. “If I knew they would harm anyone, I would surely not do the job,” he said in his clemency appeal to the President in 2009.

He found a friend in prison – a 22-year-old from Malaysia, who was also received the death penalty for drug trafficking. The boy would die just three months before Vui Kong’s scheduled execution. He was a trembling mess the day before the hanging. Vui Kong would later tell his brother that he stayed up all night comforting his friend, urging him to meditate so he could face his final moments with inner peace.

The next morning, the boy had to be dragged from his cell to the execution chamber, crying, wailing and begging to be freed and to be forgiven.

For himself, Vui Kong continues to hope for a miracle. He’s even started to learn English so he can better communicate with his lawyer.

“He is remorseful and feels he should be severely punished,” his brother Yun Leong explained, “but he wants to live so he can continue seeing us, seeing our mother again. He wants to keep learning and meditating and being a better person.”

When the court granted him a stay of execution in December, one of the first people to pay Vui Kong a visit was his lawyer. During the meeting, Vui Kong presented him a gift – a picture that had taken him weeks to complete.

“He would kneel for hours as he drew,” his lawyer said.

The picture is a colourful interpretation of one of the manifestations of Lord Buddha – he is standing at the gates of hell, saving souls from eternal damnation.

______________________________________

Photos courtesy of The Death Penalty in Singapore

TOC: The story of a boy

How many lives must be wasted before we finally bring this issue to the table to be discussed?

Yong Vui Kong's (above, with sister) appeal against his death sentence for drug trafficking will be held on the 15th of March, 10a.m., at the Court of Appeal, Supreme Court Singapore.

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.

Mandatory death penalty for kidnapping vs drug trafficking - is mandatory death penalty still relevant?

By Wong Chun Han

The Online Citizen speaks to Professor Michael Hor who teaches at the National University of Singapore Faculty of Law. His areas of research include criminal law, evidence and constitutional law. He has published several academic papers on capital punishment in Singapore and was a consultant to the Law Society’s Ad Hoc Committee on Capital Punishment.

TOC: Why might the mandatory death penalty be considered legally problematic and how would you explain this to laymen?

Prof Hor: Perhaps the most prominent aspect of a mandatory death penalty is the absence of a judicial discretion in relation to the most extraordinary sentence in our criminal law. The judge trying the case can only determine guilt or innocence, and once that is done, the death penalty automatically follows.

This goes against the grain of modern penological thinking that the punishment ought to fit not only the crime, but the criminal. It means that the judge should have the power and the duty to take into account the personal circumstances of the offender and especially whether there are significant reasons why, although the offender did indeed offend, the punishment ought not to be death – the maximum permissible by the law.

To give a simplistic example, some of us might think that the death penalty is justified for a drug trafficker who is very wealthy and who traffics in large amounts of illegal drugs only to feed his or her own greed, but most of us might think quite differently about another who had agreed to carry a little over the statutory limit in order to pay for necessary medical treatment of a family member.

The law traditionally vests sentencing discretion in our judges to take such sympathetic circumstances into consideration. What actually happens where the death penalty is “mandatory” is not so much that there is no discretion, but that the discretion is now only in the hands of the police (in terms of investigatory decisions) and the Public Prosecutor (in terms of prosecutorial decisions). The traditional thinking is that the judges who have sufficient detachment from the investigative and prosecutorial process ought to exercise the final decision. A judicial decision also has the advantage of being entirely “open” – for the reasons must be fully declared to the public, and of being appealable to the Court of Appeal (normally three of our most senior judges).

TOC: What are your views on the deterrent value of the mandatory death penalty? Is there a significant difference with that of discretionary death penalty?

Prof Hor: I think we simply do not know. Its proponents often point to the fact that drug offending in Singapore has been kept significantly down by the mandatory death penalty. But if the mandatory death penalty is the key, or at least one of the keys, then how do we explain that for kidnapping, which carries a discretionary death penalty under the Kidnapping Act, seems to have achieved even more spectacular results? Some also argue that the introduction of the mandatory death penalty in the 1970s did actually result in a fall in drug offending – but again, we do not know whether and to what extent the mandatory death penalty played a role, for at the same time, it was revealed in Parliament that the government was going to devote much more resources into drug enforcement.

Was our success because of enhanced enforcement or because of the mandatory death penalty (or both)? Drug offences did dip, but rose again in the early 1990s, apparently to levels which were higher (subject to population increase) than the 1970s – and in all that time the mandatory death penalty was well in place.

The deterrent effect of the mandatory death penalty in the context of murder is even more uncertain – it would appear that almost all murders are “crimes of passion” or committed in the heat of the moment, perhaps in the course of robbery. Deterrence works only when potential offenders have sufficient capacity and opportunity to calculate the consequences of their actions – more precisely, it requires the potential offender to discriminate between a discretionary death penalty (I may get the death penalty), and a mandatory death penalty (I will get the death penalty). That would appear to be unlikely in crimes of passion.

Now we must also be clear, on the other hand, that none of this proves that the mandatory death penalty does not work. We simply do not have, in my view, convincing reasons to believe that it does.

TOC: What are the possible constitutional objections to the mandatory death penalty? Can a strong case be made for the repealing of the mandatory death penalty?

Prof Hor: Shorn of technicality, the constitutional case against the death penalty is essentially based on the argument that the right to a fair trial includes the right to suffer only punishment which is proportionate to the seriousness of the crime and the blameworthiness of the offender. Where the death penalty is mandatory, the court is not entitled to exercise its traditional function of calibrating the severity of punishment to the seriousness of the crime and the blameworthiness of the offender. The importance of punishment proportionality (punishment fit for the crime and the offender) is heightened in the context of the death penalty, which is the most severe punishment we can visit upon an offender.

A constitutional challenge was mounted in the early 1980s with the Privy Council, then our highest court, rejecting the argument. Much has happened since, with later Privy Councils, and other major common law courts, apparently repudiating this decision. It remains to be seen whether our courts will adhere to the earlier decision or choose to take on board these later developments.

TOC: Given that the Court of Appeal will be hearing 21-year-old Malaysian drug mule Yong Vui Kong’s case in March, during which counsel will present arguments on the constitutionality of the mandatory death penalty, should there be a moratorium placed on the mandatory death penalty whilst a decision on its constitutionality is pending?

Prof Hor: There is sense in a moratorium pending the decision of the Court of Appeal, in the event that the argument prevails. But on the other hand, administratively, it will pose problems. There is nothing to prevent arguments of this nature to be made every year or every other year (in the event that it fails) – does that mean that everything that is done a moratorium ought to be imposed until the disposal of that appeal?

TOC: You wrote in a 2004 article entitled, ‘The Death Penalty in Singapore and International Law’:

A legal claim against Singapore for breach of international law in the conduct of death penalty cases is unlikely to happen, and if it happens success is not at all clear given the present state of customary international law. But if I am correct about the international trend, then there might well come a time when custom crytallises leaving Singapore in the cold.

Do you think international state practice has coalesced sufficiently for people to make a case that Singapore’s persistence with the mandatory death penalty is contrarian to customary international law?

Prof Hor: Things seldom move that quickly in the formation of customary international law. Additionally, customary international law does not have a forum which can decide with finality what the law is.

But what appears to be happening in China is in line with the increasing parsimony in the use of the death penalty. Observers have noted that since the Supreme People’s Court assumed the power to review all death sentences in 2007, there has been a significant drop in executions. And the world press has yesterday and today (10 and 11 February 2010) carried the report that the Chinese court has issued guidelines for the imposition of the death penalty, drafted in apparently very restrictive terms. The fact that the Chinese Supreme Court has the power to review all death sentences (and does in fact reverse death sentences imposed by provincial courts) seems to imply that the penalty is never mandatory in China.

But a word of caution ought to be sounded before any direct comparison is made – for example, Singapore does have the avenue of executive pardon which it has, but rarely, exercised. The fact remains that such a power exists, although it is in the hands of the executive government and not the courts. Also, China’s range of capital crimes is much larger than Singapore’s – encompassing for example serious tax and corruption offenders.

TOC: Under the current legislation, judges have no discretion under the mandatory death penalty. Can we rely on the discretionary powers of the prosecution not to prosecute a drug offender who may be considered as not deserving of the death penalty?

Prof Hor: It is not in doubt that the prosecution certainly has the power to take into account mitigatory circumstances in deciding whether or not to prefer a capital charge. It is also fairly certain that the Prosecutor does on occasion choose a non-capital charge when a capital charge would have been possible on the facts. The question is whether, in addition to prosecutorial discretion, the court ought to have the final say in the imposition of the death penalty.

I can personally see no harm in requiring both the Public Prosecutor and the Court to “approve” a sentence of death. That is how the finding of guilt and innocence works anyway.

TOC: Hypothetically, what would happen if an innocent person had drugs planted in his or her suitcase whilst returning from a holiday and was caught? Why can’t an accused simply claim ignorance?

Prof Hor: That scenario, which is often suggested, seldom happens in practice, as far as we can judge from the reported cases. It is seldom the case that the accused was completely unaware of the package which turns out to contain illegal drugs. It is quite common for an accused to argue that he thought it was something else – gems, Chinese herbs and the sort.

Let us be clear that if indeed the accused successfully persuades the court that he actually thought the package contained something else (or that he did not even know of the existence of the package), he is entitled to an acquittal. The problem is with proof, because the legislation (Misuse of Drugs Act) contains presumptions which shift the burden of proof to the accused. He has to prove that he either did not know the package was in his bag, or that, if he did know, he did not realise that it contained illegal drugs.

The normal rule, which reflects the principle of innocence until proven guilty, is that it is the prosecution who must prove knowledge. The presumptions change that and require the accused to prove that he did not know – in other words he is no longer entitled to the benefit of (reasonable) doubt. Whether or not these exceptions to the presumption of innocence are under the circumstances necessary and justified is the question.

TOC: Do you think going through the legal route to challenge the constitutionality of the mandatory death penalty is potentially more effective than direct political lobbying for the legislature to change the law?

Prof Hor: I think the dynamics are perhaps different for the two principal offences which attract the mandatory death penalty. For drug offences, the imposition of the mandatory death penalty was a decision consciously arrived at in the 1970s to combat a serious criminal and social problem. The courts will understandably be very circumspect about “going against” such a considered legislative decision.

Murder is different – the mandatory death penalty is a historic position which came to us together with the Penal Code in the 19th century. Interestingly, the death penalty in the parent Indian Penal Code was (and still is) discretionary. But for reasons now apparently lost to us, it was made mandatory for the Straits Settlements. I don’t think there has been any considered legislative decision that, at least since self-government in 1959, the mandatory death penalty ought to remain for murder. Unlike drugs, murder has not in recent memory been particularly a problem in Singapore. Attitudinally, therefore, the drug law is more likely to be regarded as “political” and the murder law as “legal”.

TOC: The Law Society’s 2007 recommendations to the Ministry of Home Affairs on the mandatory death penalty have not been taken on board by the relevant authorities in any practical manner. Was this expected, or has it been a cause for disappointment?

Prof Hor: I think the government made it clear that it did not wish to put that on the table in 2007 when a host of other amendments to the Penal Code was being discussed. Logistically that was perhaps understandable. Prioritisation of proposed legislative change is a matter for the government. But I hope that it will one day, in the not too distant future, it will be put on the table for serious discussion.

I hope for a discussion amongst all stakeholders – representatives from the police, the prosecutors, defence counsel, academics (sociologists, criminologists, philosophers, lawyers, for example) and the judiciary certainly come to mind.

No convincing reasons to believe that mandatory death penalty works

The process of judicial hanging

The process of judicial hanging

Introduction.

Hanging is the oldest but most widely used method of execution in the world today. In 2009 at least 337 hangings were recorded in seven countries, down from 339 men and 4 women in ten countries during 2008. These executions took place in Bangladesh, Botswana, Iran, Iraq, Japan, Singapore and Sudan. 10 women were hanged in Iran during 2009, the highest number in recent years. Iran also carried out a small number of public hangings of men. Sadly, the majority of those hanged in the 21st century have still had to die by strangulation, particularly in Iran. It is estimated that only 95 of the hangings during 2009 used a drop designed to break the prisoner's neck.

Iraq seems to have adopted the American style of hanging. Hanging remains the standard method of execution in many retentionist countries, notably Japan, Singapore, Malaysia, South Korea, India, Pakistan, Bangladesh, several African countries, including Botswana and Zimbabwe, and some Middle Eastern countries including Iran, Iraq, Egypt, Jordan, Kuwait, Lebanon and Syria and in most Caribbean states.

The processes of judicial hanging.

There are 4 main forms of hanging.

• Short drop hanging where the prisoner drops just a few inches, and their suspended body weight and physical struggling causes the noose to tighten, normally resulting in death by strangulation or carotid or Vagal reflex. Pole hanging is a variation on this method.
• Suspension hanging where the executee is lifted into the air using a crane or other mechanism. Death is caused in the same way as with short drop hanging.
• Standard drop hanging where the prisoner drops a predetermined amount, typically 4-6 feet, which may or may not break their neck. This was the normal method adopted in America in the later 19th and early 20th centuries.
• Finally, measured or long drop hanging as practised in Britain from 1874, where the distance the person falls when the trapdoors open is calculated according to their weight, height and physique and is designed to break the neck. This method was adopted in British Colonies and by some other countries who wished to make executions more humane.
  Each of these processes are examined in detail below.

After the execution. After death by any form of hanging, the body will typically show the marks of suspension, e.g. bruising and rope marks on the neck. In some cases there will have been effusions of urine and faeces as the sphincter muscles become deprived of oxygen and thus relax. The opening of the sphincters can also be caused by an adrenaline rush which is common in circumstances of extreme fear.
Total body death results usually within less than 30 minutes as the cells becomes starved of oxygen. This was one of the reasons why prisoners were left hanging for an hour in Britain. It is noteworthy that irrespective of the method of hanging it seems to take about the same time for total body death to occur.

Does the prisoner feel pain where the drop is sufficient to break their neck?
Obviously no one can be sure but it is generally held that if the person does feel pain, it is only during the instant that their neck is broken which can be measured in milliseconds (see below).
Those who witnessed 20th century British hangings never described any obvious suffering on the part of the prisoner and the two post-mortem reports that are available do not seem to indicate anything but a quick death. There were no signs of conscious suffering in the independently witnessed hangings of Westley Allan Dodd in Washington and Billy Bailey in Delaware. Although death was not instantaneous (it never is) unconsciousness was. These were the last two hanging executions in the USA.

Read more:
The process of judicial hanging (Capital Punishment UK)