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Breaking: Drug traffickers narrowly escaped the death sentence in a split decision by the Court of Appeal

by Guo Rendi

Two drug traffickers – Mohamed Affandi bin Rosli and Mohamad Fadzli Ahmad – narrowly escaped the death sentence, after the Court of Appeal allowed their appeals and finding them not guilty on capital drug trafficking charges in a 2-1 majority decision on Wednesday morning (5th December).

Affandi and Fadzli were arrested on the afternoon of 12th July 2013 following a drug transaction that took place at the carpark of Marina Bay Sands. Affandi was found to be in possession of 132.82g of diamorphine (heroin) and 8.14g of methamphetamine (ice), while Fadzli was found to be in possession of 38.84g of methamphetamine and 560 Erimin-5 tablets containing nimetazepam.

Both men faced a total of seven charges – Fadzli facing four and Affandi facing three, including a capital charge involving the 132.82g of diamorphine for both men.

Fadzli pleaded guilty to being in possession of the 560 Erimin-5 tablets and contested the other three charges, while Affandi claimed trial to all three charges he was facing.

At the end of a protracted trial lasting nearly 2 years, Senior Judge Kan Ting Chiu found each men guilty on the capital charge as well as one non-capital charge, but acquitted each of them on another non-capital charge. As neither men were found to be couriers, nor were they granted a certificate of substantive assistance, they were accordingly sentenced to death in August last year. The remaining non-capital charges were stood down upon the Prosecution’s application.

Both Affandi and Fadzli then appealed to the Court of Appeal – comprising Chief Justice Sundaresh Menon, Judge of Appeal Tay Yong Kwang and Senior Judge Chao Hick Tin – which reserved judgment at the end of the appeal hearing on 10th July this year.

During the appeal, Affandi – represented by Mr Michael Chia, Mr Sankar Saminathan and Ms Hany Soh – argued, as he did in his trial below, that there was a break in the chain of the custody of the eight bundles of diamorphine, to the effect that the drug exhibits tendered at the trial were not the ones seized from his car when he was arrested, and therefore the integrity of the evidence is compromised. This was also the position taken by Fadzli – represented by Mr Ramesh Tiwary and Ms Luo Ling Ling – who also argued that two of his retracted statements to the CNB should be disregarded.

In a packed courtroom, delivering the judgment of the majority on behalf of Justice Chao and himself, CJ Menon noted that at the trial, the Prosecution had presented two inconsistent narratives as to where and by whom were the drug exhibits handled. To this, he remarked that the Prosecution could not discharge its burden by leading evidence to support a range of inconsistent options, and then to ask the court to pick any option as it wish. This would be contrary to how evidence is presented and would operate unfairly to accused persons.

As for Fadzli’s retracted statements, which were the sole basis for his convictions, CJ Menon held that though the court could rely on such retracted statements, they should be subjected to anxious scrutiny in determining whether they were reliable. On the facts, the majority found serious inconsistencies that is sufficient for the retracted statements to be disregarded.

In disagreeing with the majority and holding that the convictions and death sentences should stand for both men, Justice Tay found that the chain of custody of drug exhibits was not broken, and that Fadzli’s lies in his statements corroborated his guilt in relation to the capital charges of abetting Affandi to traffick in diamorphine.

Both Affandi and Fadzli continues to be held in remand pending further submissions from their lawyers and the Prosecution, as to the proper consequential orders to be made in relation to the non-capital drug charges, which both men had been found guilty of. Most of their family members were in court today.