Side-stepping the death penalty

The following article was first published on Yawning Bread in 2008

By Alex Au

In the last 18 months or so, I had the growing feeling, looking at murder cases before the courts, that the prosecution has been bending over backwards to accommodate pleas of temporary insanity.

I wondered whether they were trying their best to avoid triggering the death sentence, which is the only sentence specified by law for cases of murder with intent.

It was impossible to come to any definitive conclusion since every case is unique.

However, a recently reported case – this time of drug trafficking – has strengthened my gut feel. The death sentence is also mandatory if someone is found guilty of trafficking. If you are found with more than 15 grams equivalent of heroin, then you are presumed to be trafficking. Below that amount, the case is treated as one of possession with a slightly less draconian sentence.

Here is the report by the news agency, DPA:

Two Malaysians, Singaporean spared gallows for drug trafficking

16 Aug 2008

Two Malaysians and a Singaporean convicted of trafficking in heroin escaped death sentences after prosecutors reduced the charges, news reports said Saturday.

The three were nabbed after smuggling 18.4 grams of heroin into the city-state from Johor, a total above the 15-gram threshold that ordinarily carries mandatory capital punishment under the city- state’s stringent drug laws.

Deputy Public Prosecutor Leong Wing Tuck told The Straits Times that the charges were reduced after discussions with defence lawyers, but he did not elaborate.

Two of the trio pleaded guilty Friday in the High Court to ferrying 14.99 grams, while the third admitted possessing the same amount.

Malaysians Lim Chan Pung, 22, and Tai Kang Seng, 25, each received 20 years in prison and 15 strokes of the cane. Singaporean Chia Teck Khoon, 40, was sentenced to 23 years and ordered to receive 15 strokes.

“You have been foolish to have been involved in the drug trade,” Justice Woo Bih Li was quoted as saying. “You should also realize how fortunate you are not to face a capital charge.”

Lawyers said the amount of heroin seized, less than 4 grams above the threshold for death, likely contributed to the decision to reduce the charges.

The men were arrested on October 17, after the Central Narcotics Bureau received a tip that Chia was planning to bring in heroin from Malaysia.

Is the state responding to pressure from within and without to use the death penalty more sparingly? Many readers would be familiar with the international outcry over the hanging of Nguyen Tuong Van in 2005.

More recently, Singapore masochistically sought worldwide bad press when our ambassador at the UN spoke out stridently against a United Nations resolution calling for a moratorium on capital punishment:

Singapore’s strong pro-death penalty stand during the November U.N. General Assembly vote on a draft resolution calling for an end to the death penalty has disappointed many and left Singaporeans asking why the city-state is willing to risk international condemnation to pursue the death penalty so publicly as a solution to crime.

“Why is Singapore so ham-fisted in wanting the death penalty when the majority of nations are against it?” asked a senior Singaporean lawyer who declined to be named because his legal business might be penalised.

“We should go with the trend in the world which is to abolish — or at least place a moratorium on — state-sanctioned killing,” he said by telephone from Kuala Lumpur.

“If we can be the first one to commercially fly the Airbus 380, why are we among the last in the world to defend and insist on carrying out state killings?” he said. “After all we pride ourselves as world trend-setters.”

Singapore was one of the few countries that fiercely opposed the moratorium when the vote was taken on Nov 15 with 99 in favour, 52 against and 33 abstentions.

— IPS, 3 December 2007, Death Penalty – Singapore: Stand at UN Leaves Many Angered

There has also been a growing murmur among lawyers in Singapore that mandatory sentences do not serve justice. Judges should not have their hands tied.

At the height of the controversy over the hanging of Nguyen, for example, Subhas Anandan, one of our top criminal lawyers, spoke out against such a policy. “I am not opposed to the death sentence, but I am not in favour of the mandatory death sentence,” he said.

It was essential, he argued, that judges in Singapore be allowed to weigh the circumstances of each case when deciding an appropriate sentence. The judge had to be able “to look at the circumstances in which things have been done,” said Subhas. “Sometimes the reasons vary, so I think that the judge should be given the discretion whether to impose the death sentence or not.” [1]

The Law Society finally spoke up in 2007.

The Law Society wants the mandatory death penalty for crimes such as murder, drug trafficking and firearms-related offences scrapped.

Instead, it wants judges to be given the discretion to either sentence offenders to death or to a jail term.

This is a key plank in the Law Society’s response to proposed changes to the Penal Code by the Ministry of Home Affairs (MHA).

Currently, the death penalty is mandatory in capital punishment cases, and judges have no choice but to impose it if a person is found guilty.

— Straits Times, 5 April 2007, Proposed changes to Penal Code. Law Society: Give judges leeway to set aside death penalty

As an opponent of capital punishment, I should be pleased if it’s true that the government is stepping back from its longstanding policy in favour of it, but the way it is going about it leaves me more concerned than ever.

Take the case of the three men mentioned at the start of this article. The story tells you very clearly that they were caught with 18.4 grams of heroin. Yet the prosecution only charged them with 14.99 grams. Is this the right way to go about it? Can the prosecution change facts just like that?

If it is acceptable today to say “14.99” when it was really 18.4, might it be acceptable tomorrow to say “18.4” when it was really 14.99?

Are we doing the right thing in the worst possible way?

Yet, it would be entirely in character with a government that is paranoid about losing face. They will not easily admit that others have valid arguments, and that they were wrong about being so keen on hanging. Moreover, they will never want to be seen yielding to foreign criticism, being as attached to old-fashioned national sovereignty as any bunch of autocrats.

If the price for sticking to their guns rises too high (international condemnation, domestic discontent) they will find roundabout ways to hang fewer people without ever conceding that capital punishment may violate moral norms.

Doing the right thing the wrong way, however, has costs, and as this case shows, the whole integrity of the justice system is put at risk when we use administrative discretion so liberally to alter the quantity of heroin involved. Even truth with numbers is thrown overboard.

Another observation one can make from this case is the marginalisation of the role of judges. It is virtually the prosecutor who decides on the penalty through varying the grammage. The judge is little more than a rubber stamp.

Can it be good to undercut an important institution -– the judiciary -– like this?

No doubt the government prefers it this way rather than take up the Law Society’s suggestion to do away with mandatory sentences. The prosecutor is part of the executive arm and more firmly under the control of the cabinet than judges, even when the latter are appointed by the government. The message one reads from this is: Potentially independent centres of power cannot be trusted.

But what will this mean, in the long run, to the integrity of the justice system? What’s the significance of the increasing use of administrative discretion? Is rot setting in?

[1] Source: Hands off Cain, 22 Nov, 2007

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The Julia Bohl case

Julia Bohl, a young German, was caught in 2002 with cannabis (also known as marijuana) and small quantities of synthetic drugs. When she was first charged, she was accused of trafficking in 687 grams of cannabis, as can be seen from the Straits Times story of 22 March 2002:

A student who has lived in Singapore for several years, Bohl is charged with possessing 687 grams (24 ounces) of marijuana “for the purpose of trafficking.”

The volume exceeds the 500-gram minimum required for the mandatory death penalty, which is carried out by hanging, according to the Central Narcotics Bureau, which made the arrests.

Her case attracted huge interest in Germany, and enormous pressure was applied by the German government on Singapore, though this facet was not much reported in the local media.

A week or so later, the quantity was changed. As reported by CNN on 28 March 2002:

A German woman convicted for drug trafficking in Singapore will no longer face the death penalty.

Julia Bohl, 23, was charged for carrying over 600 grams of cannabis two weeks ago. Under Singapore law, facing the gallows is mandatory for trafficking 500 grams or more.

However, a chemist’s analysis revealed that the block of vegetable matter she was carrying only contained 281 grams, leaving Bohl still facing up to 20 years in prison.

The huge change left many people incredulous. It was explained that 687 was the gross weight of the material seized, but it was only equivalent to 281 grams of cannabis in its pure form.

The law itself is not clear on this. Schedule 2 of the Misuse of Drugs Act, Line 5 (6) (b), specifies death as the penalty for “Unauthorised traffic in cannabis where the quantity is more than 500 grammes”, but it doesn’t say anything about gross weight or “pure” weight.

Bohl was sentenced to 5 years’ imprisonment. After serving 3 years, with 2 years deducted for good behaviour, she was released in July 2005 and promptly sent back to Germany.

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