A hangman's noose

Death-row convict’s appeal reopened for new evidence to be received

More than two years after his death sentence was affirmed by the apex court of the land, 45-year-old Norasharee bin Gous was back in court – before the same three-men panel which dismissed his appeal – on Monday (5th August) morning, seeking to reopen his concluded appeal and to receive fresh evidence.

The application was initially based on the ground that his previous lawyer at trial and appeal, Mr Amarick Singh Gill, had failed to call an alibi witness despite Norasharee instructing him to do so.

However, further revelations arose days before the hearing, which also suggested the possible existence of a conspiracy to frame Norasharee.

Norasharee was charged for abetment of drug trafficking, namely, by instigating one Mohamad Yazid bin Md Yusof (“Yazid”) to traffic in not less than 120.90g of diamorphine. While the act in question took place in question on 23rd October 2013, Norasharee was only arrested nearly two years later in July 2015.

At the joint trial, Yazid alleged that Norasharee had personally met him at VivoCity on the day in question and told him to collect the drug bundles from a Malaysian courier. Norasharee’s defence at the trial was that he was at VivoCity to have lunch with one Lolo, who was then his colleague at Marina Keppel Bay.

The trial judge found, and the Court of Appeal agreed, that Yazid had no motive to frame Norasharee. Both courts also accepted Yazid’s evidence as truthful and found Norasharee’s evidence to be inconsistent. As a result, Norasharee was convicted of the charge he faced and sentenced to death in June 2016. Norasharee’s appeal was dismissed by the Court of Appeal in March 2017.

Norasharee, who was now represented by Mr Gino Hardial Singh, claimed that Mr Gill had failed to call Lolo as an alibi witness at trial, who would have been able to prove that Norasharee was having lunch with him (Lolo) at VivoCity on that day.

Mr Gill’s explanation for not calling Lolo as a witness was that he had interviewed Lolo, and thought that his evidence would have been unfavourable to Norasharee – Lolo claimed that he had given a statement to officers from the Central Narcotics Bureau (CNB) stating that he was not with Norasharee at VivoCity on the day in question.

However, it turned out that the interview between Lolo and CNB did not in fact took place. Mr Gill, who was also present in court to clarify matters, stated that he could only act on the information given then and not go beyond that.

To this, Chief Justice Sundaresh Menon – who heard the application with Judges of Appeal Andrew Phang and Tay Yong Kwang – suggested that this may have been a “misunderstanding”. Given the way which events had transpired, Lolo’s evidence could be considered “new” under the test for reopening concluded criminal appeals set out in the case of Kho Jabing.

Deputy Public Prosecutor Wong Kok Weng, in resisting the application on behalf of the Prosecution, suggested that Lolo’s evidence could not be said to be “compelling” under the Kho Jabing test.

In response, CJ Menon explained that Lolo was not a fictional character, and that there was no evidence to suggest that Mr Gill had decided not to call him as a witness for tactical reasons.  The CJ also suggested that should the witness gave false evidence to interfere with the administration of justice, it is within the Prosecution’s prerogative to charge him for an offence of perjury.

Mr Singh also brought the court’s attention to information provided by one of Norasharee’s good friend a few days before the hearing.

It was discovered that the name “Bujang Hawk” was prominent in the judgments of Norasharee’s trial and appeal on one hand, and another unrelated case involving two drug traffickers where “Bujang Hawk” had been identified on the other hand. The judgment in the latter case was delivered a year after Norasharee’s appeal was dismissed. This further lends weight to the possibility of a collusion between Yazid and other persons to frame Norasharee.

The Court of Appeal eventually decided to send Norasharee’s case back to the trial judge, but deferred their decision for eight weeks, pending the completion of investigations by the Prosecution as to the possible existence of a conspiracy to frame Norasharee. The parties will then update the court on the scope of the issues to be dealt with by the trial judge.