A hangman’s noose

The eleventh-hour bid by 44-year-old Syed Suhail bin Syed Zin to delay the execution of his death sentence for a longer indeterminable period of time has raised certain thought-provoking legal issues, during a Court of Appeal hearing on Tuesday (22nd September) afternoon.

In particular, a legal question was raised as to whether a prisoner on death-row whose clemency petition had been rejected, had a legitimate legal expectation to have his death sentence carried out on a date which was in accordance with sequence among fellow prisoners, by virtue of Article 12(1) of the Constitution of the Republic of Singapore, which provides that “all persons are equal before the law and entitled to the equal protection of the law”.

The Court of Appeal – comprising Chief Justice Sundaresh Menon, Judge of Appeal Andrew Phang and Judge of Appeal Judith Prakash – has given Deputy Chief Prosecutor-cum-Senior Counsel Francis Ng representing the State, and Syed’s lawyer, Mr M Ravi, to tender further submissions and/or affidavits on the abovementioned legal point by 29th September and 6th October respectively, following which there is to be a further hearing while Syed’s execution had been further stayed.

The court also gave permission to Mr Ravi to file submissions on the issue of whether Parliament intended for drug abusers to be considered as couriers, for the purposes of Syed’s application to reopen his appeal, by Friday (25th September).

Syed was arrested in August 2011 by officers from the Central Narcotics Bureau (CNB) near the traffic junction of Choa Chu Kang North 7 and Choa Chu Kang Drive. He was taken back to his flat where, among other things, 38.84g of diamorphine was found for which he was convicted of drug trafficking and sentenced to death in December 2015. His appeal against the drug trafficking conviction was dismissed at the fourth hearing in October 2018, following which his petition to the President for clemency was rejected.

Syed was initially scheduled to be executed in February this year, which was stayed in light of allegations by fellow prisoners on death-row that certain procedures relating to execution of death sentences were illegal. Following the dismissal of their challenges in August, Syed’s execution was once again fixed to be carried out on 18th September.

Mr Ravi, who took over conduct of Syed’s matter at around this time, filed an urgent application in the High Court on 16th September to seek a stay of execution of Syed’s death sentence till an indeterminable date on two legal grounds;- a) the powers of the President to pardon drug offenders had fallen into disuse and was a breach of natural justice, and b) that the execution of Syed, a Singaporean, had been fixed ahead of certain foreigners on death-row whose clemency petitions had likewise been rejected, was a differential treatment in breach of Art 12(1) of the Constitution.

Justice See Kee Oon dismissed the application the next morning (17th September) and rejected the State’s application for costs to be ordered against Mr Ravi personally, but granted an interim stay of Syed’s death sentence pending an appeal to the Court of Appeal. In the meantime, Mr Ravi also sought permission to file an application to reopen Syed’s appeal which was granted by a Judge of Appeal two days later.

At the start of the hearing, Mr Ravi made an oral application for Mr Ng and his team to recuse themselves from representing the State, in light of Mr Ng’s disclosure that the Prosecution had came into possession of correspondence between Syed and Mr Ramesh Tiwary, who represented the former at one point during his appeal.

Mr Ravi argued that as a result, “the prosecutorial process had been tainted with bias” and that “justice must be seen to be done”. Mr Ng clarified that he had not yet had sight of the letters in question as at the time of the hearing this afternoon and that the Prosecution had given undertakings to destroy such letters.

CJ Menon and Justice Phang interrupted Mr Ravi several times, pressing on the issue of whether there was in fact any prejudice caused by the breach of the Prisons Regulations, as the letters in question were not concerned with the applications to reopen Syed’s appeal or for a stay of execution, apart from Mr Ng’s explanation that he did not have sight of the letter’s contents.

Turning to the application to reopen Syed’s appeal, Mr Ravi relied on the case of Mohammad Azli bin Mohammad Salleh v Public Prosecutor (which was delivered in April this year) to argue that the issue of whether Syed qualified for alternative sentencing due to diminished responsibility should be revisited.

CJ Menon observed that during Syed’s appeal, several adjournments had been granted for further psychiatric evidence to be obtained; when Mr Tiwary applied to discharge himself from representing Syed, he explained that they had made a deliberate decision not to rely on the psychiatric evidence for the appeal. This effectively suggested that the evidence and arguments based on diminished responsibility were not strictly “new” for the purposes of reopening a concluded criminal appeal, as they could have been, and were indeed, explored during the appeal itself.

Justice Prakash also pointed out that the High Court had found that Syed was not a mere courier such that he could not be eligible for alternative sentencing at all, and that Mr Ravi had not put forward new evidence or arguments seeking to overturn such a finding. In response, Mr Ravi indicated that he intended to rely on Parliamentary debates to argue the issue of whether drug abusers can be considered as mere couriers.

Mr Ravi also relied on a line in a judgment from the Australian Federal Court that “that a long period of disuse extinguishes the prerogative because it would be illusory to say that Parliament has … made a choice to leave the prerogative in the [decision-maker]’s hands”, in support of his argument that the powers of the President to grant clemency had fallen into disuse.

However, CJ Menon expressed his view that such an observation might not be applicable in Singapore’s context as the power to grant clemency is a codified and constitutional one in contrast to Australia.

In respect of Mr Ravi’s argument that the Presidents, over a period of 27 years, had rejected the clemency petitions of drug offenders based on the Cabinet’s blanket policy of non-tolerance towards such a group, CJ Menon pointed out that following the stay of execution in Pannir Selvam Pranthaman’s case, a Minister had made a statement in Parliament that each clemency petition had been carefully considered on its facts and circumstances, and thus it was inappropriate for the court to go behind such statements.

On the argument based on equality, Mr Ravi acknowledged that in view of the Covid-19 situation, foreigners on death-row faced difficulty in having access to their family members as compared to Singaporeans; however, he submitted that as a matter of fairness, Syed’s execution should be stayed at least till the Covid-19 pandemic was over. This prompted CJ Menon to ponder over the issue of how should one classify the prisoners on death-row for the purposes of comparing “like with the like”.

Mr Ng had also invited the Court of Appeal to make a definitive ruling on whether the High Court had the power to order an interim stay of the execution of the death sentence pending an appeal, when the decision appealed against concerned the very same order sought for and which had been rejected. CJ Menon indicated that they would put this issue to rest in a written judgment, though the court expressed the provisional view that “there is nothing wrong for the High Court to order such a stay”.

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