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The Court of Appeal has thrown out two final appeals by a Malaysian drug trafficker against his death sentence for drug trafficking on Monday (27 May), ending a series of court battles spanning a period of nearly 10 years.

The final recourse for 30-year-old Nagaenthran a/l K Dharmalingam would have been to petition to the President for clemency, according to his lawyer Mr Eugene Thuraisingam.

The two appeals were against the decisions of the trial judge, Justice Chan Seng Onn, to dismiss Nagaenthran’s applications for re-sentencing due to a mental impairment arising from abnormality of mind, and for judicial review of the Public Prosecutor’s decision not to grant Nagaenthran a certificate of substantive assistance (referred to as the “PP’s non-certification decision” in general).

Both appeals were heard together before a five-judge Court of Appeal in January this year, and judgment for both appeals were reserved.

Delivering the judgment of the court, Chief Justice Sundaresh Menon held that Nagaenthran’s inconsistencies in his evidence and account of events, given to the psychiatrists and psychologists examining him, had undermined his mental impairment defence which would have otherwise enabled him to be sentenced to life imprisonment.

Also hearing the appeals were Judges of Appeal Andrew Phang and Judith Prakash, Senior Judge Chao Hick Tin, and Justice Belinda Ang.

With regards to the judicial review appeal, CJ Menon explained that a clause in the Misuse of Drugs Act, which supposedly oust the courts of its jurisdiction to judicially review the PP’s non-certification decision save for grounds of bad faith and malice, is actually a statutory immunity clause that only protects the PP from being sued for civil liability unless there was bad faith or malice on the PP’s part.

In so doing, the Court of Appeal disagreed with Justice Chan below and another conflicting High Court decision; and as such, the available grounds of judicial review against PP’s non-certification decision are not limited, ruled the apex court unanimously once and for all.

Nevertheless, the court found that the only two grounds pursued on appeal – that the PP failed to take into account relevant considerations, and that the non-certification decision was made in the absence of a precedent fact, were not made out on the facts of Nagaenthran’s case.

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