Tag Archives: Mandatory Death Penalty

High Court re-sentences a third murder offender to life imprisonment

Justice Choo Han Teck

Singapore’s High Court exercised its discretion today, sentencing Gopinathan Nair to life imprisonment with caning instead of the death penalty.

Gopinathan was initially convicted of murder under section 300(a) of the Penal Code in March 2012. The High Court then sentenced him to death under the old mandatory death penalty regime.

His appeal was dismissed by the Court of Appeal in September 2012. However, the Court did find that there were doubts as to whether he had an intent to kill, an element required under section 300(a). He was therefore found guilty of murder under section 300(c) of the Penal Code instead.

The Court also found that there was some element of provocation involved, although this was not enough for Gopinathan to qualify for the defence of provocation.

Under Singapore’s new death penalty laws, existing death row inmates, who have been convicted for murder under sections 300(b) to (d) of the Penal Code, will have an opportunity to have their sentence reviewed by the Court. Judges can either choose to uphold the death penalty, or substitute it with a sentence of life imprisonment with caning.

Gopitnathan’s case is the third case to have undergone such a review this year.

In his re-sentencing hearing this morning, Deputy Public Prosecutor (DPP) Adrian Loo told the Court that the Prosecution did not object to defence counsel’s submission that a sentence of life imprisonment in this case was appropriate.

Loo however, urged the Court to impose the maximum of 24 strokes of the cane, highlighting that in the previous two cases of Fabian Adiu Edwin and Jabing Kho, the Court also decided to impose the maximum of 24 strokes on top of a sentence of life imprisonment. The DPP submitted that this case was not dissimilar to the other two cases in that the crime was also committed in the course of a robbery.

In response, defence counsel Mr Shashi Nathan, argued that the Court should not impose the maximum of 24 strokes of the cane. This is because the two previous cases were different from the current case as unlike them, Gopinathan had not planned the robbery which led to the victim’s death. Furthermore, there was also some element of provocation involved, which should count as a mitigating factor in his favour.

After hearing submissions from both sides, Justice Choo Han Teck sentenced Gopinathan to life imprisonment with 18 strokes of the cane.

Article: Damien Chng

Photo: Supreme Court Singapore

Court Reviews Sentence for Murder Offender Under New Laws

Justice Chan Seng Onn

The High Court exercised its new discretionary powers for the first time in a murder case today. It sentenced Fabian Adiu Edwin to life imprisonment in place of the death penalty. Fabian had been convicted of murder under section 300(c) of the Penal Code in September 2011.

The decision follows recent amendments to Singapore’s death penalty regime. Under the new laws, the High Court can now choose between a sentence of life imprisonment with caning or the death penalty, in cases where a person is convicted under sections 300(b) to (d) of the Penal Code.

Fabian’s case is one such example. He was found guilty of culpable homicide amounting to murder under section 300(c) by the High Court in September 2011. His execution however, was stayed because of a government-led review of the laws relating to death penalty. The proposed changes were passed by parliament in 2012 and took effect in January 2013.

Under the new law, inmates who were earlier convicted under sections 300(b) to (d) of the Penal Code will have a chance to have their sentences reviewed by the High Court. Judges will have discretion to replace what was previously a mandatory sentence of death, with life imprisonment and caning.

In Court this morning, the Prosecution submitted that the appropriate test which the judge should use to determine if a sentence of death is warranted, is to look at whether Fabian’s crime has outraged the feelings of the community. Under this test, the Court should look at three broad factors – the seriousness of the offence, how widespread the criminal activity has become, and the need for deterrence.

The Prosecution highlighted that Fabian and his co-accused had armed themselves and the harm caused was severe because it resulted in the death of the deceased. Furthermore, in the last 10 years, there were 25 cases of robbery-cum murder, of which 4 occurred in 2008. As such, the Prosecution submitted that a deterrent sentence of death was warranted.

Defense Counsel, Anand Nalachandran however, argued that a death sentence should only be used as a last resort. He pointed out that all homicide offences are, by their nature, very serious and urged the Court to look at the circumstances surrounding the case.

Mr Nalachandran told the court that Fabian had been lured to Singapore to work at the age of 17 and that expert witnesses had testified that he had a sub-normal IQ. Further more, Fabian was only 18 years and 10 months old when he committed the offence – just above the legal limit for the death sentence to be imposed. Mr Nalachandran also said the death of the deceased was not an intended consequence.

In response to the Prosecution’s call for a deterrent sentence, Mr Nalachandran pointed out that since 2008, the number of robbery-cum-murder cases has also been on the decline, with only 1 case in 2009, 2 cases in 2010, 1 in 2011, 2 in 2012 and 1 thus far in 2013. Above all, life imprisonment, while less harsh than the death penalty, is still a very harsh punishment and an appropriate deterrent.

In delivering the reasons for his decision , Justice Chan Seng Onn took into account the fact that Fabian had committed a series of robberies and on one of these instances had murdered the victim. However, he agreed with the Defence that Fabian’s young age and his sub-normal intellect should be regarded as mitigating factors in his favour and he therefore handed down a sentence of life imprisonment with 24 strokes of the cane.

Our report on the changes to the application of the death penalty for murder and drugs can be found here

Article: Damien Chng and Priscilla Chia

Photo: supremecourt.gov.sg

 

 

NMP Laurence Lien’s speech on the changes to the Mandatory Death Penalty for Drug Offences

Understandably, people are concerned that we are on a slippery slope down away from zero tolerance on drugs. And I too am concerned about the increase in drug abusers arrested and the increase in drugs seized, as mentioned earlier. But we have to ask ourselves whether the death penalty is the only possible way of effectively defending Singaporeans against drug traffickers? Is it an absolute necessity? I would say not. There are alternative tough sentences, like the life sentence, which is already a very harsh sentence. Abolishing the death penalty and having a zero tolerance on drugs can go together.” – NMP Laurence Lien, Parliament, 12th November 2012.

During the Parliamentary debate on the changes to the Mandatory Death Penalty [Misuse of Drugs Act (Amendment) Bill] last week, various Members of Parliament urged the government to move further with its reforms and to abolish the mandatory death sentence. NMP Laurence Lien went even further and advocated for the abolition of the death penalty as a goal that our society should aim towards. He also called for the death penalty to be made fully discretionary in the meantime.

In his speech, he questioned the ethics and principles of the ‘substantive assistance’ requirement that drug mules would have to meet in order to qualify for a chance escape the mandatory death sentence, stating that in effect, a people’s lives will be determined by how useful they are to the state. He also raised doubts about the deterrent effect of the death penalty, the problems in the narrow definition of drug mules, and the failure of the Bill to cover the abetment of a drug trafficking offence.

We thank Mr Lien for allowing us to reproduce his speech in full.

_______________________________________________________________________________________

Mr Speaker, Sir, thank you for allowing me to speak on this Bill. I would like to start by expressing my support to the Bill in giving discretion to judges under specific circumstances for drug trafficking. Likewise, I support the same in the Penal Code (Amendment) Bill for murder.

I think this measure is a significant step in the right direction. However, I do not think it goes far enough. I would like to advocate for the removal of the death penalty as an ultimate goal, and for full discretion to be given to the courts on the imposition of the death penalty in the interim. I also have specific problems with the circumstances outlined in the proposed Section 33B, subsections (2)(a) and (2)(b), what I call the “drug mule” and “substantive assistance” requirements respectively.

Sir, let me start by articulating why I think we should abolish the death penalty. My starting point is that we must believe that every human life is precious, and we need to protect every person from conception to death. Unless it is specifically to save another life, taking a life for no matter how good an intention, is wrong. For the same reasons, I would not support euthanasia.

Having a culture of death has much wider implications then the removal of a burden or threat that we perceive that a particular person may bring. It damages the work that we are all trying to achieve, that is to build an inclusive society. Inclusiveness here is a sense of belonging, of being respected and valued for who you are, and ultimately, being always treated with equal dignity and compassion, even if you have made mistakes, are terminally-ill, or are perceived as being a burden to society. To treat people otherwise is to treat them as the means, not the ends.

Fundamentally, what is the type of society that we want to live in? Do we believe in compassion and in allowing people chances to redeem themselves and be rehabilitated, even if they make bad mistakes? Do we believe in second chances?

Sir, I do not condone merely pursuing a utilitarian view of justice, where the ends simply justify the means. According to this view, justice requires the maximisation of the total welfare across individuals in our nation. In sentencing, a utilitarian would focus on the deterrent and security aspects of punishment.

Deterrence is to make credible the threat of severe punishment so that others would think twice about committing the offence; and the security aspect focuses on taking offenders out of circulation through incapacitation so that they can do no more harm to others.

Deterrence and incapacitation are clearly well-intentioned objectives. But we cannot take them to the extreme such that the ends justify the means. We need a sense of proportionality. Society should move towards more humane ways of restorative justice, especially where there is possibility of reforming and rehabilitating the offender.

In this regard, as the death penalty is being maintained, I propose that full discretion be given to the courts on the imposition of the death penalty. The courtroom, rather than the prosecutor’s office, is a much more appropriate place to decide on the punishment that best fits the crime, based on the seriousness of the offence and the culpability of the offender.

Understandably, people are concerned that we are on a slippery slope down away from zero tolerance on drugs. And I too am concerned about the increase in drug abusers arrested and the increase in drugs seized, as mentioned earlier. But we have to ask ourselves whether the death penalty is the only possible way of effectively defending Singaporeans against drug traffickers? Is it an absolute necessity? I would say not. There are alternative tough sentences, like the life sentence, which is already a very harsh sentence. Abolishing the death penalty and having a zero tolerance on drugs can go together.

In any case, I believe many serious drug traffickers may already be detained under the Criminal Law (Temporary Provision) Act, instead of under the Misuse of Drugs Act (MDA).

As has been already pointed out, research on the deterrent effects of the death penalty is mixed. Some studies in other jurisdictions even show a decline in homicide rates even after the death penalty was abolished, like in Hong Kong which abolished capital punishment in 1993.

As United Nations Secretary-General Ban Ki-Moon said in July this year when calling on member states to abolish the death penalty, I quote, “The taking of life is too absolute, too irreversible, for one human being to inflict it on another, even when backed by legal process”. The death penalty is too drastic a measure in our modern world, with our modern justice system.

Mr Speaker, Sir, next, I will move on to specific clauses of the Bill.

First, the “drug mule” requirement under the proposed sub-section 33B(2)(a) is under-inclusive and may give rise to instance where offenders with similar levels of culpability being given vastly difference sentences. For example, it is not clear whether an offender who performs a limited role of packing the drugs under instruction can come under this subsection. Instead of a listing of acts and activities, these offenders should be defined, in my view, according to their relative roles or responsibilities in the drug syndicate.

Secondly, under the MDA, a person found abetting a drug trafficking or importation offence is liable to the same punishment prescribed for the principal offence. Abetment comes in many forms and with varying degrees of culpability. I propose that the courts be given a discretion whether to consider abettors as principal offenders or not.

Thirdly, I have serious concerns about the requirement of “substantive assistance” under subsection 33B(2)(b), as has been mentioned by many speakers before me. It is not well-defined and ambiguous. And if it is based on the actual results of cooperation and receiving high-quality information, there could be potential unfairness because the less culpable, quite often, have less information.

This “substantive assistance” standard is too high, which was also mentioned by Mr Edwin Tong, and has a worryingly strong utilitarian element of collecting better intelligence, and using the threat of death as a bargaining chip. Simply put, whether a person gets a chance to live or not hinges on how useful the offender is to the state in achieving certain ends. I believe the life and death of an offender should not be decided based solely on their utility to the state. Hence, I urge that this subsection be removed.

Sir, in conclusion, I welcome the Government’s move towards more judicial discretion and prescribing sentences which are more proportionate to the culpability of the offenders. However, I urge the Government to go further and abolish the death penalty in the future. I understand the strong support by many in Singapore for the death penalty, and that we Singaporeans are rightly proud that Singapore is a safe and secure home, relatively free from drugs and serious crime. These ought to be outcomes we need to work hard to maintain. But where it comes to the death penalty, it is not just about our criminal justice system, which we also want to be proportionate and restorative; it also about the type of society that we want to build – a society that values every person and one that does not give up on its people.

Photo: www.parliament.gov.sg