A hangman’s noose

by Guo Rendi

Two drug traffickers – Roslan bin Bakar and Pausi bin Jefridin – had lost in their final attempts to escape the gallows, in one of the last few re-sentencing cases for death-row convicts to reach the Court of Appeal on Wednesday (26th September).

For a drug offender to be spared the death penalty, he must satisfy the court on a balance of probabilities that he was merely a drug courier, and that he had either been certified by the Public Prosecutor to have substantively disrupted drug trafficking activities within outside Singapore, or he was suffering from an abnormality of mind that substantially impaired his mental responsibility for the offence.

Roslan and Pausi were found guilty of drug trafficking and sentenced to death in April 2010, and their appeals were dismissed in March 2011. In 2014, both Roslan and Pausi were informed that the Public Prosecutor would not be certifying that they had substantially disrupted drug trafficking activities within or outside Singapore. Roslan then filed a criminal motion in January 2015 seeking to adduce fresh evidence and reopen his case, but it was dismissed by the Court of Appeal in November that same year.

Roslan and Pausi then applied to be re-sentenced to life imprisonment on the basis that they were merely drug couriers with abnormalities of mind due to low intellectual quotient (IQ), but their applications were dismissed by the trial judge, Justice Choo Han Teck, in a 9-paragraph short judgment in November 2017. In the judgment, Justice Choo also found that Pausi was merely a courier, while Roslan was not.

Before the Court of Appeal – led by Judge of Appeal Judith Prakash and including Judge of Appeal Tay Yong Kwang and Senior Judge Chao Hick Tin, Roslan was represented by Mr Kertar Singh and Mr Lee Wei Liang of Kertar & Sandhu LLC as well as Mr Mohammad Shafiq of Abdul Rahman Law Corporation; Pausi was represented by Mr Chung Ting Fai and Mr Peter Ong of Chung Ting Fai & Co. as well as Mr Timothy Ng of Timothy Ng LLC. The Prosecution was led by Deputy Chief Prosecutor Hay Hung Chun.

Mr Lee first started off by arguing that Justice Choo failed to take into account further evidence in Roslan’s affidavit filed for the re-sentencing application, in determining whether Roslan was a courier, as no reference was made to it during the proceedings below and the judgment. He sought to convince the court that this evidence, where Roslan admitted that he is merely a “mouthpiece” giving instructions on transporting the drugs, is consistent with the findings at trial.

As for the issue of whether Roslan is suffering from a mental impairment, Mr Shafiq argued that there were administrative restrictions in prison settings, such that the psychologists were unable to complete Roslan’s IQ test even by the time of the re-sentencing application, and that the Court of Appeal should therefore remit the matter back to the High Court for further evidence to be taken.

Mr Chung also argued, on behalf of Pausi, that Justice Choo failed to give sufficient consideration to the Defence’s medical expert’s evidence, which stated that Pausi’s low IQ level had affected his ability to resist committing the offence.

Justice Prakash noted Pausi’s background in that he had lived independently, and was able to get a job and a car on his own, which suggests that his adaptive functioning and ability to make rational decisions is not affected.

Mr Hay counter-argued that Roslan had continuously given inconsistent defences right up to the re-sentencing application, a point which Justice Tay also questioned Roslan’s lawyers on. Justice Tay specifically noted that while Roslan expressed his intention to “come clean” given the amendments to the law, his current position is however different from the position he took when he tried to reopen his case, the application of which was filed after the drug laws had been amended.

When queried by Justice Chao as to the issue of whether a “mouthpiece” merely giving instructions for transporting drugs could be a mere drug courier, Mr Hay took the position that it depends on the facts and circumstances.

The judges returned at 2.50pm after 2.5 hours of hearing and a lunch break, announcing their decision to affirm Justice Choo’s decision and to dismiss both appeals.

In delivering the judgment of the court, Justice Tay remarked that the fact that a judge did not expressly made reference to certain material in his judgment does not mean that he did not consider it at all; especially when that is the core basis for the application. He also stated that both appellants failed to point exactly to where Justice Choo went wrong in his analysis of the mental impairment issue.

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