By way of introduction, I am not against the death penalty in general, though there can be situations where I may personally feel that justice and fairness might be compromised when the death penalty was imposed on an accused person. One such situation was where the Court of Appeal (“the CA”), as the final appellate court in Singapore, imposes the death penalty after allowing the Prosecution’s appeal against conviction or sentence.
As the late K S Rajah SC puts it in his 2006 article ‘Appeal or Tried Again?’, referring to the case of Lim Poh Lye v Public Prosecutor (2005), “have the respondents in this case a right of appeal against the death sentence imposed by the Court of Appeal?” This article served to reinforce my personal belief about the inherent unfairness occasioned where the death penalty was imposed in such a situation, though I respectfully agreed with the Court of Appeal when it commented, in a subsequent application by the two accused persons concerned to set aside their death sentences for lack of jurisdiction, that the legal arguments in that article were not persuasive (Koh Zhan Quan Tony v Public Prosecutor (2006) at para 57).
Of course, I would not say that every instance where the Court of Appeal imposed the death sentence was wrong. Take the case of Chia Kee Chen for example, the trial judge had found him guilty of murder and the CA agreed. The other issue for consideration was whether Chia should face life imprisonment or death for his involvement in the murder. The trial judge decided that It should be the former, without giving detailed reasons for ruling so, other than what was reported in the press which sounded like the sole factor taken into account. In contrast, Chief Justice Sundaresh Menon wrote a detailed judgment for the appeals, explaining fully why Chia should be guilty of murder and elaborating further on why Chia deserved the death penalty. He then concluded eloquently in these terms (at para 142):
“The death sentence is the final and terminal sentence which a convicted person can suffer, and where it is at the discretion of the court, it should only be imposed after the most anxious consideration. Such consideration is to be guided by the jurisprudence of the court, for that is the only assurance that the gravest of judicial tasks is undertaken in accordance with the law.”
With this, let’s get to the topic at hand. The case of Gobi a/l Avedian is yet another typical case of a drug courier transporting drugs for urgent need of money, the facts of which I need not elaborate in detail here. However, what struck me significantly was the fact that Gobi had put in some effort to ascertain the nature of the drugs he was to be transporting. The trial judge effectively believed his lack of knowledge and decided that he was only guilty of “attempting to import a less serious drug”, which carries a lower penalty than death. Although it was not mentioned in the High Court’s judgment which was issued much later, I did not find it surprising that the Prosecution filed an appeal.
For months after the appeal was heard (I did not attend the hearing then), the High Court’s judgment file on the Singapore Law Watch did not have an editorial note describing the outcome of the appeal, which meant that judgment was reserved (or that the court would be issuing written grounds explaining their decision in greater detail at a later date). I was prepared for the worst when judgment is due to be delivered on 25 October 2018, and it eventually materialized; the CA ruled that Gobi had failed to rebut the presumption of knowledge and should be guilty of the original capital charge.
After hearing the parties on whether the requirements for alternative sentencing were made out, CJ Menon pronounced the mandatory death sentence on Gobi in the usual manner. At that moment, I felt a sense of injustice in terms of the disproportionate outcome, albeit doubly as the death sentence was imposed by the CA rather than the trial judge.
When I read the written judgment later that afternoon, however, I could sense that something went wrong in the judgment itself. Among the 20 paragraphs which set out the CA’s reasons for disagreeing with the trial judge, some paragraphs just simply did not speak clearly for themselves as they should, and points which should have been included, such as the appellate court’s self-reminder to be slow in overturning findings of fact by the trial judge, were nowhere to be found. Even taking those paragraphs at their highest, I maintained the view that the reasoning appeared to be flawed as a matter of logic and principle, though I could not describe what the flaws were at that time.
Four months later, I came across a commentary on the earlier judgment in Gobi’s case (see Leong Hoi Seng Victor, ‘Three Observations Arising from the Court of Appeal’s Decision in PP v Gobi a/l Avedian [2018] SGCA 72’) (“the commentary”). There, the author, who was a young practicing lawyer, also thought that some parts of the CA’s reasoning were far from clear, but he took them at their highest and concluded that it was at odds with some of their earlier decisions in other drug cases, and may have set the threshold too high for drug offenders in general. The commentary also made some observations on the concept of wilful blindness when discussing the CA’s reasons for disagreeing with the trial judge’s findings of fact. With the commentary speaking on my behalf, I was fully convinced that the earlier judgment in Gobi’s case had been wrongly decided.
Things took a brighter turn in May last year, when the Court of Appeal delivered its judgment in Adili Chibuike Ejike v Public Prosecutor (“Adili’s case”), a landmark decision which clarified the concept of wilful blindness in the concept of drug offences, though some aspects of it were left open to be considered on a future occasion. Reading this together with the commentary, I thought to myself: “Thank goodness, there’s finally a chance for Gobi to be saved!”
Subsequently in July that year, it was reported that Gobi’s clemency petition had been rejected, though the date of his execution was not even fixed in the months that followed. I believe this was partly due to the CA’s decision to order a stay of execution in Pannir Selvam’s case, where they made the comment that death-row inmates whose clemency petitions had been rejected should be afforded time to seek legal advice on any probable courses of legal action they might be able to take. By then, I verily believe that only one person could save Gobi’s life, and his name is M Ravi, who has vast experience and tremendous courage in handling applications to reopen concluded cases, and who coincidentally had been allowed to return to legal practice at around the same time.
Close to the end of 2019, Ravi posted an update on Facebook that he was representing 6 death-row inmates, whose clemency petitions had been rejected, “at the eleventh-hour to review their cases”. I took it to mean that he is assessing the probabilities of success in reopening their cases, and I could sense that Gobi was one of them. Not surprisingly, a week later which was just a few days into 2020, Ravi sent me a text message informing me that he had just filed an application in the CA on behalf of Gobi to reopen the latter’s case the day before. The arguments relied on to explain why the CA’s decision was demonstrably wrong were, in substance, similar to those points raised in the commentary, albeit with additional reliance on Adili’s case. I must clarify, however, that Ravi did not have sight of the commentary while preparing the arguments for Gobi’s case.
From time to time, Ravi would inform me of the latest developments in Gobi’s case at the earliest opportunity, such as the CA’s decision granting leave to reopen the appeal, and the initial hearing date fixed in March; once again, it was not surprising to me that a panel of 5 judges would be hearing the review, given that the scope of wilful blindness left open in Adili’s case would affect a number of other future drug cases.
(Postscript: It has since come to my attention that there were two other pending drug cases before the CA, just as the second judgment was to be handed down, which also concerned the issue of wilful blindness vis-à-vis nature of the drugs; one involved appeals by three accused persons against their convictions and death sentences at a joint trial, while the other involved an application to reopen the concluded appeals of two accused persons from another joint trial, both of whom I believe were sentenced to life imprisonment.)
Unfortunately, the original hearing date was postponed to May as the lead prosecutor arguing against the review was on medical leave; and the imposition of the circuit breaker delayed matters even slightly further. Despite the circuit breaker, the CA was doing its job as usual; having read the papers and considered the points made in the meantime, they requested for further arguments with three objectives: a) to eliminate all ambiguities in the law that might have arisen from their earlier judgment in Gobi’s case, such as possible conflicts with earlier decisions in drug cases, b) to settle the concept of wilful blindness vis-à-vis nature of the drugs, and c) to review Gobi’s case with a different legal approach and consider the appropriate remedies, a sign of clear indication that the CA had acknowledge their earlier decision to be demonstrably wrong.
Finally comes the day in June where the landmark review of Gobi’s case was heard in open court; the judges’ thinking was crystalized well enough by the written submissions put forward by Ravi, such that they require not much clarification from him, save for minor aspects relating to the choice of words used. As the arguments go on, it turned out that the presumption of knowledge could not even be invoked against Gobi in the first place, as the Prosecution had implicitly accepted that Gobi did not actually know the nature of the drugs, when their case against him was that the presumption had not been rebutted because he “should have done more to find out”. Once again, judgment was reserved for serious consideration by the CA.
Eventually, the judgment was fixed for delivery in October. This time round, it was read out by none other than the Chief Justice himself. The outcome was a highly expected one; Gobi’s conviction and death sentence had been set aside; he will only have to spend a few more years in prison and endure 10 strokes of the cane before he would be free to leave the prison and reunite with his family in Malaysia.
Gobi’s case is overwhelmingly strong when one looks from various perspectives, but the Prosecution went overboard in downplaying it as an “abuse of process” until the court agreed that it should be reopened. Indeed, despite his courage in pursuing Gobi’s right to life in various ways, Ravi also faced various obstacles, including threats and the prospects of adverse cost orders in the process. Nevertheless, he persisted, and once again he had saved yet another life when all hopes appeared to be lost in the eyes of an ordinary person, just as he did with Yong Vui Kong and Cheong Chun Yin many years ago. As Ravi himself said in an interview upon returning to legal practice last year, “I think what is more important is not the fall, but how one rises after the fall.”
Without Ravi, Gobi would not have been alive today. Ravi, we are all very proud of you!
