The Court of Appeal’s decision to convict 30-year-old Nagaenthran s/o K Dharmalingam and to subsequently place him on death row is “a clear violation of international law”, in light of his medical expert’s opinion that he suffers from a mental illness or an intellectual disability, said human rights lawyer M Ravi.
The Court, said M Ravi in a Facebook post on Mon (27 May), has dismissed the Malaysian man’s appeal against his death sentence on the grounds of his failure to convince the Court that he has a mental disability, based on the inconsistencies the Court has found in the evidence he had given to the doctors.
“Nagaenthran suffers from mental illness or intellectual disability according to his own medical expert, Dr Ken Ung. This could have saved him from the gallows if he had been able to convince the court that he suffers from such mental impairment.
“Unfortunately, the Court chose instead to rely on IMH psychiatrists’ reports which indicated that Nagenthran’s mental condition does not sufficiently qualify as a mental impairment. Nevertheless, the prosecution and the High Court below accepted that he suffers from a mild intellectual disability,” said the lawyer.
Citing UK-based human rights organisation Reprieve’s work on handing death sentences to mentally ill or intellectually disabled persons, M Ravi said that “Both international and domestic law in many countries around the world prohibit the execution of people with mental illness or intellectual disabilities”.
He also added that the expert evidence of Dr Koh, the State’s third medical expert, was made “without further independent medical examination” of Nagaenthran, but instead was made for the purpose of ‘making observations’ on Dr Ung’s opinion.
Such a practice, dubbed as ‘poking holes’ in the Defence’s report, is “unacceptable” in criminal trials, and would mean that the Court of Appeal’s decision is in contravention of “the right to a fair trial under international law”, he argued.
Consequently, M Ravi revealed that he is in the process of writing a memorandum to the Malaysian government, urging the government to “file a complaint to the International Court of Justice in view of the aforesaid breaches of international law”.
“I will include several other breaches of the right to a fair trial that Nagaenthran has suffered,” he added.
Nagaenthran’s trial judge purportedly gave “insufficient consideration” to his mental conditions, according to expert psychiatrists for both Prosecution and Defence
Nagaenthran was convicted in 2010 for trafficking not less than 42.72 grams of diamorphine into Singapore via Woodlands Checkpoint in Apr 2009, and was subsequently sentenced to the death penalty. He had appealed against his conviction, but his appeal was subsequently dismissed by the Court of Appeal in Jul 2011.
His trial judge, Justice Chan Seng Onn, ruled in the re-sentencing application that there was no doubt that Nagaenthran was merely a drug courier.
In 2013, Singapore’s drug laws were amended to allow drug couriers to escape the death sentence in limited situations, such as if the offender is in possession of a certificate of substantive assistance from the Public Prosecutor, or was suffering from an abnormality of mind substantially impairing his mental responsibility when committing the offence.
Apart from the re-sentencing and judicial review applications, Nagaenthran had also applied, together with three others, to the Court of Appeal for the death sentence to be set aside, on the grounds that parts of the amended drug laws, which conferred powers on the Public Prosecutor to issue certificates of substantive assistance, were unconstitutional.
The application was dismissed by the Court of Appeal in December 2016.
Justice Chan then heard both the re-sentencing and judicial review applications one after another, which were respectively dismissed in September 2017 and May last year.
Both appeals were heard together before a five-judge Court of Appeal in January this year, and judgment for both appeals were reserved.
Previously in the first re-sentencing appeal, Nagaenthran’s counsel Eugene Thuraisingam highlighted that the expert psychiatrists for both the Prosecution and Defence agreed that Nagaenthran was suffering from Attention Deficit Hyperactivity Disorder, intellectual disability and Alcohol Use Disorder, which Justice Chan gave insufficient consideration to.
He put forth the case that the combinations of these abnormalities affected Nagaenthran’s ability to understand events, judge between right and wrong and to exercise self-control when he agreed to transport drugs across the Causeway.
When queried by Chief Justice Sundaresh Menon and Justice Andrew Phang as to how these abnormalities of mind “substantially impaired” Nagaenthran’s mental responsibility for the offence, Mr Thuraisingam suggested the word “substantial” in the law to be interpreted as “not trivial or minimal”, by reference to a classical English court case on diminished mental responsibility.
Mr Wong, while not disagreeing with Mr Thuraisingam’s interpretation of the word “substantial”, pointed out that Nagaenthran had given differing accounts to the medical experts as to his intentions when he agreed to transport the drugs, and admitted to one of them that he had lied to another, in suggesting that Nagaenthran’s mental responsibility was not substantially impaired.