NOVEMBER 18 ― Dr Kenneth Koh of Singapore Institute of Mental Health (IMH), to whom Nagaenthran’s was referred for a forensic psychiatric evaluation, in his report dated April 11, 2013 gave his considered view that Nagaenthran "had no mental illness at the time of the offence” and was "not clinically mentally retarded”.

Dr Koh, though, acknowledged that Nagaenthran’s "borderline range of intelligence” might have caused him to be more susceptible than a person of normal intelligence to over-estimating the reality of King’s alleged threat to kill his girlfriend.

That said, Dr Koh concluded that Nagaenthran’s borderline range of intelligence "would not have diminished his ability to appreciate that the package that was taped to his thigh would most likely have contained drugs and that bringing this to Singapore was illegal”.

Nagaenthran was subsequently referred to a psychiatrist in private practice, Dr Ung Eng Khean, for a psychiatric assessment in support of his re-sentencing application. Dr Ung assessed Nagaenthran on April 19 and July 19, 2016 and issued a report dated August 22, 2016.

In the light of Dr Ung’s report, Dr Koh referred Nagaenthran to Dr Patricia Yap, principal clinical psychologist at the IMH, for a neuropsychological assessment to explore whether Nagaenthran could have been suffering from Attention Deficit Hyperactivity Disorder (ADHD). Dr Yap assessed Nagaenthran between November 2016 and January 2017, and issued a report dated February 1, 2017.

Based on Dr Yap’s and Dr Ung’s reports, Dr Koh himself prepared a report dated February 7, 2017. In the report, he concluded, among other things, that "[Nagaenthran’s] borderline intelligence and concurrent cognitive deficits may have contributed toward his misdirected loyalty and poor assessment of the risks in agreeing to carry out the offence”.

Separately, on December 10, 2014, the Public Prosecutor (PP) had informed Nagaenthran that he would not be issuing a certificate of substantive assistance under section 33B(2)(b) of the MDA to him.  On March 27, 2015, Nagaenthran sought leave to commence judicial review proceedings against the PP’s decision not to issue him the certificate of substantive assistance.

The High Court judge found that Nagaenthran was not suffering from an abnormality of mind within the meaning of s 33B(3)(b) of the MDA. Three cumulative requirements that Nagaenthran would have to satisfy in order to be able to rely on the defence under s 33B(3)(b) are:

(a)  whether he was suffering from an abnormality of mind;

(b)  if he was, whether the abnormality of mind: (i) arose from a condition of arrested or retarded development of mind; (ii) arose from any inherent causes; or (iii) was induced by disease or injury; and

(c)   if (a) and (b) are answered affirmatively, whether the abnormality of mind substantially impaired his mental responsibility for his acts and omissions in relation to his offence.

An activist holding a placard attends a candlelight vigil against the impending execution of Nagaenthran K. Dharmalingam, outside the Singaporean embassy in Kuala Lumpur on November 8, 2021. — AFP pic

The learned judge dismissed the application for leave to commence the judicial review proceedings against the PP’s decision. Nagaenthran appealed to the Court of Appeal. A strong bench of five appellate judges, which included the Chief Justice, dismissed the appeal. The lengthy judgment of the Court is reported as Nagaenthran a/l K Dharmalingam v Public Prosecutor and Another Appeal [2019] 2 SLR 216.

The judgement in the trial, conviction and sentence of Nagaenthran is reported as Public Prosecutor v Nagaenthran a/l K. Dharmalingam [2011] 2 SLR 830 while the appellate court’s judgment is reported as Nagaenthran a/l K Dharmalingam v Public Prosecutor [2011] 4 SLR 1156.

It is noteworthy that the Malaysian Bar’s letter of appeal to the Singaporean High Commission seeks only clemency for Nagaenthran. Its president, AG Kalidas said that the letter urging the Singapore government to commute the sentence of Nagaenthran was based on the fact that his mental capacities have diminished since his punishment was given out.

The letter of appeal was co-signed by the Malaysian Bar, the Advocates Association of Sarawak and the Sabah Law Society.

"Our plea is based on the fact that we learned after he was convicted, his mental health has diminished. That is what our plea is based on,” Kalidas said.

Kalidas repeated the plea for clemency on humanitarian grounds after the Singapore government insisted that it had followed all the due processes of the law and given Nagaenthran a fair trial.

"We respect its sovereignty and laws, but what we are merely asking for is compassion to be extended to our citizen who has been medically diagnosed as being of impaired intellectual ability and has been languishing in a cell for more than ten years in a foreign country.”

"All we are asking for is humanity,” he added.

Nagaenthran, represented by defence counsel, went through a complete criminal trial, which is one that involves both the case for the prosecution and the case for the defence. This is implied from the very charge itself. A charge accuses a person of having committed an offence. That suggests that he has to put up his defence. The moment the prosecution has proved its case meaning that the court has decided that there is a case for the accused to answer, the accused must therefore forthwith enter his defence.

The proceedings must continue until the end of the case for the defence and only then would the court be able to finally decide the fate of the accused. If the court convicts or acquits the accused, that means that the court has decided the fate of the accused. (See the judgment of Lamin Mohd Yunus PCA in Saad bin Abas & Anor v Public Prosecutor [1999] 1 MLJ 129)

It is a fundamental principle of the law that an accused person receives a full and fair trial. That principle requires that the accused be afforded every proper opportunity to put his defence. This being an imperfect world, one cannot expect perfect trials. But to be effective, a trial must be fair.

The crucial question is whether the accused has had a fair trial. No appellate court would lightly declare a trial unfair. In Nagaenthran’s case, the appellate court upheld the conviction and sentence.

It is a conclusion that Nagaenthran has had a fair trial.

With all judicial processes having been exhausted, what is left is the extrajudicial process for clemency.

Let’s join the Malaysian Bar in the plea for clemency on humanitarian grounds. As Kalidas said, the clemency appeal should warrant consideration in light of reports that Nagaethran’s mental condition had deteriorated since his detention.