By Guo Rendi
The case of Nagaenthran a/l K Dharmalingam v Public Prosecutor is, in many ways, extraordinary among all convicted drug couriers in Singapore. Nagaenthran has been on quite a long path challenging his current fate of being a death-row inmate and ultimately, death itself with the assistance of a valiant criminal and human rights lawyer – Mr Eugene Thuraisingam. Much as his three fellow inmates in the constitutional challenge against section 33B of the Misuse of Drugs Act – Prabagaran, Ridzuan and Jeefrey had already faced their inevitable fate, we could not be certain what would Nagaenthran face eventually even as of now.
By way of a bit of background, Nagaenthran was arrested at Woodlands Checkpoint on 22 April 2009 and found to have a bundle containing 42.72g of diamorphine on him. He was found guilty of drug importation and given the mandatory death penalty on 22 November 2010; at that time s 33B of the MDA has yet to come into force. His appeal against conviction was dismissed on 27 July 2011, where the Court of Appeal rejected his defences of duress and lack of knowledge regarding the content of bundles.
Meanwhile, Nagaenthran’s death sentence was stayed during the government’s review of mandatory death penalties, leading to the enactment of s 33B in 2013. In 2015, after the DPP notified Nagaenthran’s former lawyer that the Public Prosecutor would not be certifying that Nagaenthran assisted the CNB in disrupting drug trafficking activities, Mr Eugene took over Nagaenthran’s case and commenced three applications – one to seek leave for commencing judicial review of the abovementioned PP’s decision in the High Court, one to challenge the constitutionality of s 33B in the Court of Appeal and one for re-sentencing in accordance with s 33B in the High Court. The leave application for judicial review was adjourned pending the outcome of the re-sentencing application, while the constitutional challenge had been dismissed on 2 December 2016. The re-sentencing application, on the basis that Nagaenthran suffers from diminished responsibility, was dismissed on 14 September 2017 by the trial judge, Chan Seng Onn J.
I was at the hearing for the delivery of judgment in the re-sentencing application. I did not know much about the status before that, save for understanding that Nagaenthran is praying to be re-sentenced under s 33B(1)(b) read with s 33B(3) of the MDA (this was reflected in the amended notice of motion) – under the latter section, the convicted person must show that a) he/she is a drug courier, and b) he/she is suffering from mental disabilities. If both conditions are satisfied, the court must sentence them to life imprisonment. In his written judgment, Chan J found that Nagaenthran is a courier within s 33B(3)(a), but rejected the evidence of the Defence’s psychiatrist, Dr Ung Eng Khean, preferring the evidence of the Prosecution’s psychiatrist Dr Kenneth Koh and rebuttal evidence from two other psychologists in relation to Dr Ung’s diagnosis that Nagaenthran suffers from Alcohol Use Disorder, Attention Deficit Hyperactivity Disorder (ADHD) and Mild Intellectual Disability.
It seems to me that these last few re-sentencing applications, being brought and concluded at a later timing, would suggest that there is a high probability of non-success, which in turns invite the most anxious scrutiny from lawyers. However, I was particularly sad with Nagaenthran’s case. Even though he was found to be a mere courier, the change in law could not even save him from the gallows – the PP refused to give him a certificate of substantive assistance, and the trial judge had made findings that he is not suffering from any abnormality of mind that could save him from the death sentence. While the latter decision is still appealable to the Court of Appeal, given the extent which Chan J considered his decision, there is still a chance of failure at that stage.
At this stage, I must say that Nagaenthran’s case would become the most heartbreaking capital case in the eye of the anti-death penalty campaigners in Singapore, should the re-sentencing and judicial review applications meet their ends tragically in the Court of Appeal; not particularly because the PP refused to give a certificate of substantive assistance, nor that Nagaenthran’s death-row incarceration is already extremely lengthy, but most importantly and as mentioned earlier, the change in law could not even do anything to help an innocent drug courier.
http://www.supremecourt.gov. sg/docs/default-source/module- document/judgement/ nagaenthran-al-k-dharmalingam- v-pp-(final)-pdf.pdf (Nagaenthran a/l K Dharmalingam v Public Prosecutor  SGHC 222)