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