The Case Against Prabgaran’s Execution; Are we 100% sure that this man is guilty?

Prabagaran, a 29 year-old Malaysian, is set to be hung at dawn in less than 48 hours. With the exception of Kho Jabing, all executions in Singapore have always been carried out on Friday at dawn, and barring a miracle, Praba will suffer the same fate soon.

At 5.15am on 12 April 2012, Praba was arrested at Woodlands Checkpoint for being in possession of 22.24 grams of diamorphine - a substance more commonly known as heroin. He was 23 at the time of his arrest. The circumstances of his arrest in itself would raise some eyebrows. Praba testified that his vehicle was not stopped by Officers from the Immigrations and Checkpoints Authority ('ICA').

In fact, he had already cleared Customs when he voluntarily stopped his car further up beside an inspection pit. He said that he got out of the car to check on a faulty window that he was not able to wind up after opening it when clearing Customs. It was only then that a ICA Officer SSGT Chan Tim Fatt ('PW4') approached him to drive the car into the Inspection Pit for a 100% Inspection.

During the inspection, he was engaged in a conversation with ICA Officer SGT Chen Zhongfu Roger ('PW3'), who also patted him down. During the conversation, SGT Aidil Rafael ('PW26') found two black bundles inside the arm-rest compartment of Praba's car. Praba was then arrested. At the time of his arrest, none of the ICA Officers opened up the bundles to ascertain its content. In the High Court, it was revealed that PW3, PW4 and PW26 did not produce any evidence in their notes that Praba exhibited any signs of panic or nervousness when presented with the two black bundles.

PW3 confirmed that during the arrest, Praba asked, "Why are you arresting me? I came here to work. I don't know anything."

That was the first time that Praba had declared his innocence. More than 5 years has passed since his arrest but he has always been consistent in maintaining his innocence. Chances are that when the Court of Appeal hears the case to stay his execution later this afternoon, he will as steadfast as ever in maintaining his innocence.

Prabagaran's Background

Prabagaran celebrating his first Birthday with his                                                Parents

Having followed the case closely, I humbly submit that even the most ardent supporters of the Death Penalty would find it difficult to justify hanging Praba. Before I expound on the sheer ridiculousness of the case to hang him, I wish to shed a little light into Praba's background, which may help provide some context to the case.

Prabagaran, aged 1.

Praba was born on 16 November 1987 in Johor Bahru. From a young age, he has been very attached to his mother, Mdm Eswari, as his father was often absent from the family and passed away when he was 17.

Praba left school after obtaining his Sijil Pelajaran Malaysia ('SPM') - the Malaysian equivalent of 'O' levels and begin working as a lowly paid employee at a Caltex Petrol Station in Singapore. His only surviving kin, his mother, was forced to stop work due to multiple injuries. Nevertheless, Praba took it upon himself to provide for the family by paying all the bills and his mother's medical expenses. He also found time to volunteer with the Malaysian Indian Congress and the Social Services Center. Mdm Eswari always describes Praba as a filial boy who 'never once asked me for money.'

Mdm Eswari and Prabagaran

Since his incarceration, Mdm Eswari has been forced to work odd jobs again to make ends meet. In addition to continuing treatment for her injuries, she has also developed high blood pressure and heart problems. Despite the odds, Mdm Eswari has been relentless in her support for her son. She often makes trips across the Causeway to visit her soon and she also has been willing to support the activists and the lawyers in their campaign to save Praba.

She is featured in this video on the campaign to save Prabagaran's life.

Praba had a few friends. Balu was among one of them. Like Praba, he too was a Malaysian who plied his trade across the border. The duo met when they were working as ship lashers in 2008. His trust in Balu played a pivotal role in his arrest.

Balu and Nathan

When Praba drove into Singapore that fateful morning, he was not driving his car. It was only the second time that he had driven into Singapore in a car. His usual mode of transport would have been his Yamaha motorcycle. However, a day before the arrest, he was contacted by the shop that he had purchased the motorcycle from. He was told that he owed them three months of installment payments that amounted to RM750. Praba replied that he would pay up once he receives his salary from Caltex on 29th April. His manager later testified in Court to corroborate Praba by confirming that his pay day was to be on the 29th.

Prabagaran on his Motorcycle

Prabagaran was afraid to drive his motorcycle into Singapore. He was afraid that the Customs Officers would seize his motorcycle for as his installment payments were overdue and his road tax had expired. The idea that Customs Officers would be acting on the behalf of motorcycle shops and/or Malaysia's equivalent of the Land Transport Authority would seem illogical to most of us but we must bear in mind that these were the thought processes of a young and lowly educated man.

Praba then asked Balu if he could use the latter's motorcycle. Balu declined but instead suggested that he use Nathan's car. Praba had only known Nathan for 2 months. He was introduced to Nathan by Balu and he had used Nathan's car once before to send Mdm Eswari to the temple. Praba thought that he had no reason to distrust Nathan as Balu seemed to trust him and therefore it did not occur to him to exercise any due diligence by checking the car for narcotics before driving it across the border.

Explaining why he drove across the border in the wee hours of the morning, he argued that it was to avoid the ERP charges which he also did on the previous occasion he drove into Singapore.

As far as Praba was concerned, Nathan was the owner of the car. When he was arrested, the Malaysian Authorities revealed that the car did not actually belong to Nathan. However, no information was produced at trail as to whether the car was stolen by Nathan.

During the course of investigations, Prabagaran told the Investigating Officers that he was prepared to lead them to the houses of Balu and Nathan but they never took up his offer. The 2nd Investigating Officer, Mr Nicholas Quek ('PW24') recorded a statement where Praba said:

"... CNB Intelligence came and showed me photos and I was able to point out Balu in one photo and Nathan in one photo."

However, despite the leads to Balu and Nathan and the fact that Nathan did not own the car, both of them were not present at any of Praba's trials. Even with Praba's willingness to help lead the authorities to the duo, it is not known whether the authorities made any effort to secure their attendance at trial. Prabagaran contends that either Balu or Nathan may have planted the drugs in the car in the hopes of retrieving it later at Praba's workplace with a spare key. Such a scenario is most definitely possible but we will never get to the bottom of it as Balu and Nathan were never called to the docks.

When the case went on Appeal, the failure of the Prosecution to secure the attendance of material witnesses was raised by Praba's counsel Mr Eugene Thuraisingam.

In the Court of Appeal's Judgement at [59] Tay Yong Kwang J ruled that the decision not to investigate properly was a operational one.

The more important question is the extent of the CNB's duty to investigate. This clearly involves operational matters. The CNB has to assess the value and the viability of making any particular investigation in each case. It has to make judgment calls on the usefulness of any information given to it. It has to consider its resources and its statutory powers of investigation. For instance, it cannot be expected to traverse the globe to investigate merely because an accused person mentions the names of ten persons in ten different countries together with their contact numbers. Further, it must not be forgotten that Parliament has set out statutory presumptions in the MDA to assist the CNB and the Prosecution in their work and it is therefore incumbent on accused persons to produce the necessary evidence to rebut the presumptions. Such evidence, as the two cases discussed above have shown, could possibly be the oral testimony of the accused persons if it is considered to be credible on a balance of probabilities.

With all due respect, I think it is easy to appreciate the difference between a situation where an accused drops 10 names of 10 people from different countries and a situation where an accused not only name-drops but even readily identifies them in photos (Which may be prove that they were investigating the lead. If so, it only arouses more suspicion as to why they were not present at trial) and offers to personally lead the authorities to them. The straw-man argument of having to traverse the globe has to be called out in this instance when all it would take was a simple trip across the border. Perhaps even that would not have been necessary as, after all, both Balu and Nathan were working in Singapore.

DNA

In the High Court, Dr Chuah Siew Yeam ('PW22') testified that,

the Accused "is excluded as being a contributor of the DNA profile obtained in this report."

If were were to believe, as the Prosecution does, that Balu and Nathan indeed played no role in this case, are we then to believe that someone who had been so meticulous so as to achieve a 100% success rate in not leaving any DNA on the controlled substances would then go on to facilitate his own arrest by driving without a driver's license in the wee hours of the morning and then voluntarily stopping his car despite clearing customs? That would surely take a whole lot of mental gymnastics.

Rebuttable Presumptions

For Prabagaran to successfully plead his case, he had to rebut the two presumptions under the Misuse of Drugs Act ('MDA') found in s. 18(2) and 21.

  • Presumption of possession and knowledge of controlled drugs
    18(2)  Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug.
  • Presumption relating to vehicle
    21.  If any controlled drug is found in any vehicle, it shall be presumed, until the contrary is proved, to be in the possession of the owner of the vehicle and of the person in charge of the vehicle for the time being.
Essentially, Prabagaran's entire conviction hinges on the Court of Appeals findings at [50] where Tay Yong Kwang J opined that
"His account of absence of knowledge about the drugs in the car was highly improbable and, as indicated above, absurd in some aspects."

I, for one, believe that something as irreversible as the death penalty should not be meted out on the basis of mere circumstantial evidence. Praba was indeed, in my eyes and the eyes of many, foolish to do what he had done but is it a crime to be naive? Is naivety worthy of the barbaric death penalty?

To be fair, it was not the prosecution or the judges that should be blamed for this. The blame should fall squarely on our lawmakers who have designed laws, like the two above-mentioned rebuttable presumptions, to be unfavorable towards the accused. In Praba's case, the authorities did not even need to produce material witnesses. All that warranted the death penalty were the alleged inconsistencies and absurdities found in Praba's thought processes. Whatever happened to the presumption of innocence?

Certificate of Substantive Assistance

On 14 November 2012, the Misuse of Drugs (Amendment) Act was passed. It provided that if a Public Prosecutor ('PP') certified that an accused who faces the Mandatory Death Penalty under the MDA is a mere courier and has substantively assisted the CNB in it's efforts, the Court then can re-sentenced the accused face life imprisonment with no less than 15 strokes of the cane.
Discretion of Court not to impose sentence of death in certain circumstances.

33B(4)  The determination of whether or not any person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities shall be at the sole discretion of the PP and no action or proceeding shall lie against the PP in relation to any such determination unless it is proved to the court that the determination was done in bad faith or with malice.

In other words, the PP, who first charges the accused, later has arguably unfettered control over whether he lives or he dies. Prima facie, this seems to trample on the rule of law, rules of logic and the principal of the separation of powers.

In Prabagaran (and 3 others) these issues were raised in the Supreme Court. One of the co-applicants alongside Praba was the late Ridzuan, whose case garnered widespread attention as while he was not granted a certificate of substantive assistance, his co-accused was. All 4 applicants were denied a certificate of substantive assistance by the PPr.

In Tan Seet Eng, Sundaresh Menon CJ stated at [1] that the constitutional principle of the separation of powers is the "bedrock on which our society is founded on and on which it has thrived. At [106] he added that if a legislation trespasses judicial function, it will be declared unconstitutional even if it concerned matters of high policy.

[106] In keeping with this, even for matters falling within the category of "high policy", the courts can inquire into whether decisions are made within the scope of the relevant legal power or duty and arrived at in a legal manner (De Smith's Judicial Review at para 1-035). Indeed, this is apparent in Yong Vui Kong at [63] where Chong J commented that there would be a judicial remedy available if the procedures under the clemency process had not been abided by. In such circumstances, the question of deference to the Executive's discretion simply does not arise

The Applicants submitted, citing Tan Seet Eng, Faizal Bin Sabtu at [17] and [19] and other authorities that bestowing upon the PP, a member of the Executive Branch of the Government, the powers to decide whether an accused lives or dies, is unconstitutional as it vests judicial powers in an entity that is not a court.

They argued that the ('PP'), a public servant, is exercising judicial power by deciding if the offender has assisted substantively and consequently deciding his faith. Such a matter should be one that lies with the judiciary. This is also in breach of a core tenant of natural justice: Nemo judex in causa sua (No man should be a judge in his own cause)

The PP's decision is also not open to review. Although the clause does state that the judicial review is available on the grounds of bad faith, malice and unconstitutionality (the basis upon which Praba and 3 Others was raised), Ridzuan (Judicial Review) at [70] made clear that proving that the PP took irrelevant considerations into account and/or failed to take into account relevant considerations would not suffice. This illustrates how high the bar has been set in order for a judicial review into the PP's decision to arise.

As the PP does not need to justify his decision of why he certifies or refused to certifies an accused, the accused is also denied an opportunity to make a case before and independent and impartial tribunal. The accused would not know the grounds on which the decision was made and his avenues for contesting the PP's decisions would be extremely limited.

The phrase 'substantive assistance' is also undefined, therefore making such a detemination very arbitrary. Would Praba have substantively assisted the CNB if their, as Tay Yong Kwang J put it, "operational capabilities" had been better? Also, assistance rendered by an accused may also take some time to become "substantive." What if a tip-off or lead only materializes into an arrest in a few year's time? Or perhaps after the accused has been hung?

This also defies the very principle of fighting the war on drugs and recognizing that 'drug mules are victims too' as per Choo Han Teck J. Simply put, couriers are usually at the bottom rung of a syndicate and therefore would be unlikely to provide substantive assistance. However, an offender who is higher up the hierarchy who has more information on the syndicate would be more likely to provide substantive assistance.

This places mules in a position where they have to choose between waiving potentially inconsistent attempting to provide substantive assistance they may not be acted upon or may prove to be unworthy of disrupting drug trafficking activities and raising  those defenses  and possibly face the death penalty. I am sure that Parliament's intended purpose would not be to execute the innocent while protecting the guilty.

Clemency Petition

On December 2 2016, the Court of Appeal dismissed Prabagaran and 3 others. Left with no other option, Praba filed a Clemency Petition to ask President Tony Tan for a Presidential Pardon. Barring extraordinary circumstances, it was the last legal avenue to exhaust. On 7 July, Praba received his response. Like all other Presidential Pardons since Mathavakannan's in 1998 (he was pardoned by President Ong), it was rejected. Following the rejection, Prabagaran's execution date was set for dawn on 14 July.

The Fight in Malaysia

Photo from TheStar/AFP

The filing of the Clemency Petition also meant that all domestic legal avenues were exhausted. However, across the border, the fight had just begun. Two leading Malaysian Human Rights Lawyers, Mdm Latheefa and Mr N Surendran, submitted a memorandum to the International Court of Justice ('ICJ') - where one of the pre-requisites is that all domestic legal remedies must have been exhausted - to compel the Malaysian Government to fight for it's citizen who was denied access to a fair trial across the border.

Soon after, many Malaysian MPs including the leader of the Opposition, Anwar Ibrahim, also urged the Malaysian Government to look into bringing the case of Prabagaran up to the ICJ. In April this year, there was more controversy as Mr Surendran and Mdm Latheefa were denied access to their clients in Singapore. The case is now pending an appeal in the Malaysian Court of Appeal where the issue over access to lawyers is also likely to be aired.

"I refer to the scheduled execution of Malaysian citizen Prabagaran Srivijayan on the 14th July 2017 at Changi Prison for an alleged drug offence.

Singapore is set to carry on the execution despite concerns over an unfair trial and a pending appeal in the Malaysian Court of Appeal to refer Singapore to the ICJ for breaching Prabagaran's rights.

I am appalled that the Prime Minister, the Cabinet and Malaysian government have maintained absolute silence over Prabagaran's critical situation.

The government has a duty and obligation to protest the denial of Prabagaran's basic rights and to make every effort to save his life." - N Surendran

With the Malaysian Government's silence, it seems that all hope for Prabagaran now rests with the Court of Appeal when they hear Mr Choo Zhengxi, Praba's lawyer, make the case for a stay of execution tomorrow at 2.30pm. I understand that both Mr Surendran and Mdm Latheefa will also be present to assist Messrs Peter Low & Choo LLC.

Many international organizations, including the United Nations Human Rights Office, Amnesty International, and the International Federations of Human Rights, have released statements calling upon the Singapore Government to save Prabagaran.

If precedents are anything to go by, the outcome looks bleak. But nevertheless the fight must and will go on. For if there is even a glimmer of hope, if there is even one needle in a bloody haystack, we need to do everything within our means to grab it, as even one innocent life taken by the state is one too many.


Screengrab taken from a video by CADPA featuring the campaign to Save Prabagaran

One may argue that I do not know for sure if Prabagaran is innocent. The same can be said of the opposite - we do not know for sure if he is guilty too.  All humans are fallible and in turn, all judicial systems run by humans are too.

If precedents are anything to go by, the outcome looks bleak. But nevertheless the fight must and will go on. For if there is even a glimmer of hope, if there is even one needle in a bloody haystack, we need to do everything within our means to grasp it as even one innocent life taken by the state is one too many.

I have no doubt that, as other countries have experienced, there will come a time in Singapore's history when executions will not be viewed, as some put it, 'trade-offs' for our 'hard stance on drugs' and 'drug free society' but will be seen for what they truly are - an illogical, barbaric and ultimately ineffective form of punishment. And when that day comes, which side of history would you be on?

This entry was posted in Commentaries, Criminal Justice and tagged , , , , .
This entry was posted in Commentaries, Criminal Justice and tagged , , , , .