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Death-row convict’s application to reopen case fails; lawyer faces risk of personally bearing Prosecution’s costs

by Guo Rendi

A 61-year-old death-row prisoner, who had been convicted for drug trafficking five years ago, has failed in his latest legal challenge to reopen his case and escape the gallows on Thursday (16 Aug).

But Abdul Kahar bin Othman’s lawyer, Mr Rupert Seah, has also been taken to task by the Prosecution; for including what they perceived to be irrelevant legal content in his written submissions to the court.

The Prosecution, led by Senior Counsel Francis Ng, wants the five-judge Court of Appeal – comprising Chief Justice Sundaresh Menon, Judges of Appeal Judith Prakash and Tay Yong Kwang, Senior Judge Chao Hick Tin and Justice Belinda Ang – to order Mr Seah to personally bear their costs for the present application.

Abdul Kahar had a long and protracted history in appearing before the courts. He was arrested in July 2010 and found guilty of trafficking in not less than 66.77g of diamorphine (heroin) in August 2013. While he was found to be merely a courier in October the same year, the Court of Appeal disagreed and in November 2014, they remitted the issue back to the trial judge for his reconsideration.

Subsequently, Abdul Kahar was found not to be a courier, and given that he was not certified by the Public Prosecutor to have substantively disrupted drug trafficking activities within or outside Singapore, he was sentenced to death in February 2015. His appeal against his conviction was dismissed in October the same year. There was also a judicial review application filed in 2016 to challenge the Public Prosecutor’s decision not to grant Abdul Kahar a certificate, which was also dismissed and no appeal was filed.

During the hearing on Thursday, Mr Seah attacked the constitutionality of the alternative sentencing regime in the Misuse of Drugs Act, arguing that it violates the principles of equality before the law and separation of powers. Relying heavily on many previous Court of Appeal cases involving constitutional issues, he stressed that “the Constitution is supreme.”

When queried by CJ Menon as to how these arguments can be considered “new” and therefore admitted as fresh evidence to reopen a concluded appeal, Mr Seah forcefully submitted that these arguments only came to his mind after the Court of Appeal delivered its judgment in Prabagaran a/l Srivijayan v Public Prosecutor [2017] 1 SLR 173, which he also argued is wrongly decided.

Mr Seah had also made certain references to the 1989 amendments of Internal Security Act that he argued is unconstitutional as well, which the Prosecution describes as irrelevant to the dispute at hand and relies on to seek costs from Mr Seah personally.

In dismissing the application, CJ Menon observed that while imposing the death penalty is a difficult task for judges, they have to do it as that is one of their duties by law.

The court has indicated their intention to issue full grounds of decision in due course, and directed both parties to file written submissions setting out their position on the principles of making costs orders as well as their respective positions in the present cases.