NOVEMBER 17 — The accused, a Malaysian national, was arrested in April 2009 at Woodlands Checkpoint and charged with the offence of illegally importing into Singapore not less than 42.72g of diamorphine under section 7 of the Misuse of Drugs Act (MDA) which attracted a mandatory death sentence under section 33 of the MDA read with the Second Schedule to the MDA.
The accused was riding pillion on a motorcycle when he was stopped at Woodlands Checkpoint and the diamorphine was then contained in a newspaper-wrapped bundle (the Bundle) secured by yellow tape over the accused’s left thigh, concealed under the outer pants he was wearing at the time.
In his defence, the accused pleaded, firstly, the lack of his knowledge of the actual contents of the Bundle and, secondly, that he had delivered the Bundle under duress by one King, a person whom the accused had allegedly got acquainted with in Johor Baru some four to five months before the accused’s arrest.
In support of the plea of duress, the accused claimed that he had delivered the Bundle only because King had earlier threatened to kill his girlfriend, Shalini, if he refused to do so. At trial, the accused also maintained that he was told by King and believed that the Bundle contained certain “company product”, or more particularly “company spares”, as opposed to controlled drugs.
The testimony, however, contradicted the accused’s long statement recorded shortly after his arrest, wherein he indicated that he knew the Bundle actually contained heroin. To this the accused alleged certain lapses and misconduct on the part of the Central Narcotics Bureau (“CNB”) officers involved in his arrest, namely (a) his long statement was not properly recorded and read back to him before he was asked to sign the same and (b) he was assaulted by one of the CNB officers present at his arrest.
At no time, however, did the accused challenge the admissibility of his statements given to the CNB officers following his arrest. Based on the report of the case, at no time also did the accused plead that he was incapable of making his defence. Lawyers call this unfitness to plead, that is, the accused is suffering from a substantial incapacity such that it would be legally improper for him to stand for trial.
At the conclusion of the trial, on November 22, 2010, the accused was found guilty and accordingly sentenced to death. The trial judge made a number of findings including the following:
- the accused’s defence of duress not evidentially substantiated on a balance of probabilities. The accused had not discharged his burden in proving that the character named King did in fact coerce the accused into delivering the Bundle by threatening to “finish” and “kill” Shalini.
Furthermore, when the accused was first asked by the CNB officers why he had to deliver the Bundle to Woodlands, there was no mention at all by the accused of any threat made by King on Shalini’s life. That such a paramount explanation of duress was not given during such questioning rendered the accused’s story of King’s threat unbelievable under the circumstances. - Even if the accused’s version of facts were to be accepted to be true, on the law, the defence of duress would not be sufficiently made out because the accused could not be said to have reasonably apprehended that King’s threat would actually be carried out if he refused to deliver the Bundle.
According to the trial judge, there was no indication whatsoever that King was a very influential and powerful gangster who had a team of followers capable of keeping watch over the accused and Shalini at all times, as well as to carry out the threats made by King upon King’s command; there was hardly any basis for the accused to claim that there was reasonable apprehension that King’s threat would be put into action at all. - On the accused’s allegation of assault by one of the CNB officers involved in his arrest, the trial judge dismissed it for want of cogent explanation. The accused’s statements made to the CNB officers were accepted to be accurately recorded with no lapses.
The accused’s statements given to the CNB officers showed that the accused had actual knowledge that the Bundle contained heroin, and not merely some kind of controlled drug the nature of which was unknown to him. In any case, the accused would also have failed to rebut the presumption of knowledge provided under s 18(2) of the MDA.
The accused was represented by two lawyers assigned to the case since the offence carries a mandatory death sentence. The accused is Nagaenthran a/l K Dharmalingam.
On appeal, the Singapore Court of Appeal upheld the trial judge’s findings as well as the conviction and sentence.
Was Nagaenthran accorded due process of the law as asserted by Singapore Prime Minister Lee Hsien Loong and Minister for Foreign Affairs Vivian Balakrishnan?
Under the Criminal Procedure Code (CPC) which governs criminal trials, both in Singapore and Malaysia, an accused is found unfit to plead if he or she falls under the definition of unsound mind (section 247 and 342 of the Singapore and Malaysia CPC respectively). When the court has reason to suspect the accused’s sanity and consequently incapable of making his defence, it will investigate the matter by ordering the accused to be observed by a medical officer in a psychiatric hospital to determine whether the accused is fit to stand trial or not.
If the accused is found fit to stand trial, the court will proceed with the trial. Nagaenthran must have been fit to stand trial as the trial judge proceeded to its conclusion. In any case, as mentioned above, his unfitness to plead was not raised at his trial.
It was only after his conviction that Nagaenthran, while awaiting execution of his sentence, was referred in March 2013 to Dr Kenneth Koh of the Institute of Mental Health for a forensic psychiatric evaluation. This was for the purpose of assessing the appellant’s suitability for resentencing under section 33B(1)(b) read with section 33B(3) of the MDA.
The provisions are amendments to the MDA, passed by Parliament in November 2012, which bring about two significant changes to the legal framework governing the sentencing of certain groups of those convicted of drug trafficking.
First, they confer upon the court the discretion to sentence an offender convicted of a drug trafficking offence that would ordinarily attract the imposition of the mandatory death penalty, to life imprisonment instead if the offender’s involvement in the offence was merely as a courier, as described in section 33B(2)(a), and the Public Prosecutor (“PP”) had issued a certificate of substantive assistance under section 33B(2)(b) in respect of the offender.
Second, it made it mandatory for the court to sentence an offender convicted of such an offence to life imprisonment if the offender’s involvement in the offence was merely as a courier, as described in section 33B(3)(a), and the offender was suffering from an abnormality of mind within the meaning of section 33B(3)(b).
Nagaenthran’s referral for the forensic psychiatric evaluation will be considered in a sequel.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
