32-year-old Malaysian prisoner Gobi Avedian is set to bring legal action against Singapore’s Attorney-General (A-G), Deputy A-G and Deputy Chief Prosecutor, following the Court of Appeal’s decision to set aside his death sentence on Monday (19 October).
In the Court of Appeal judgement yesterday, it was noted that while the prosecution’s case against him during the trial was about wilful blindness, it is “undisputed” that the Prosecution’s case on his initial appeal was that of actual knowledge.
Referencing its decision in Zainal bin Hamad v Public Prosecutor and another appeal — where the Prosecution similarly ran a different case on appeal than the trial — the Court of Appeal reasoned that it is crucial for the prosecution to run “a consistent case so as to ‘give the accused a fair chance of knowing the case that is advanced against him and what evidence he has adduced (and what standard of proof) in order to meet the case’”.
“We also made similar observations in our recent decision in Public Prosecutor v Wee Teong Boo and other appeal and another matter, where we held that the Prosecution is not permitted to seek a conviction on a factual premise which it has never advanced, and which it has in fact denied in its case against the accused person,” the judgement read.
Contrary to Zainal, however, the Court of Appeal judges reasoned that in the immediate case, the prosecution’s change in the case that it ran on appeal compared to the one it ran at trial had prejudiced Mr Gobi.
The judges noted that Mr Gobi’s conviction of the capital charge would only remain safe if the prosecution had proved beyond reasonable doubt that he was wilfully blind to the nature of the drugs, which they did not.
Mr Gobi’s counsel Ravi Madasamy, better known as M Ravi, said in a Facebook post today that he has “already taken instructions” from Mr Gobi and his family to commence court proceedings against A-G Lucien Wong, Deputy A-G Hri Kumar Nair, and Senior Counsel Mohamed Faizal Abdul Kadir.
Mr Ravi said that he will be filing the writ of summons in the next few days for both his client and his client’s family “personally against all 3 of the above Government lawyers and also against their offices in which they hold public appointment”.
“They have to be accountable to Gobi and his family in court and be subject to rigorous cross-examination and scrutiny of their conduct of Gobi’s case,” he stressed.
While he believes that the A-G and his government legal officers will instruct “some big firms” should the proceedings be allowed, Mr Ravi said: “Do not underestimate the power of small firms in Chinatown. People’s Park Centre where my office is has several peoples’ lawyers.”
Deputy A-G Hri Kumar Nair’s letter “threatening and humiliating”; Law Society must protect lawyers from such intimidation and harassment, M Ravi alleges
Mr Ravi also condemned Deputy A-G Hri’s letter to him, which accused the former of making “false and highly inflammatory” allegations against the Public Prosecutor in Mr Gobi’s case.
Mr Hri also demanded Mr Ravi to apologise “and unconditionally retract all of the allegations” in writing.
Failure to do so, he wrote, will result in the AGC filing “the necessary complaint” against Mr Ravi, which Mr Ravi posited refers to a complaint to The Law Society.
Mr Ravi branded Mr Hri’s statement “a bold threat”, for which the latter owes him an apology.
Such a “threat”, he said, is akin to “humiliating Gobi and his family by insulting them further to threaten their counsel to apologise when these government lawyers who handled Gobi’s case are the wrongdoers”.
Mr Ravi urged the public to demand the Deputy A-G to retract the letter and issue an apology.
The lawyer also said that he will be responding to Mr Hri’s letter “accordingly”.
Mr Ravi also warned that he will also begin proceedings against the Law Society should it purportedly fail to do its part to “protect lawyers and the independence of the profession” and instead proceed to entertain “any further complaints” or forms of alleged “harassment” by the A-G against him in carrying out his duties as an advocate and solicitor.
Entitled to make professional views known as Gobi Avedian’s counsel; human rights lawyers “do this all the time” especially in cases involving death sentence: M Ravi
Touching on his decision to stand by his comments on Mr Gobi’s case, Mr Ravi said that as the inmate’s counsel, he is entitled to make his professional views known, particularly “when a death sentence has been set aside” on the grounds of miscarriage of justice.
The “unfairness in the prosecution of Gobi as to why prosecution ran a different case at trial and appeal as observed by the court” is among reasons why he spoke up on the issue, he said.
“It will bring dishonour to my profession if I breach my Oath to advocate for my clients fearlessly and without any expectation of favour from anyone.
“I have not come to law to make money or enjoy powerful connections but to dedicate to the mission of the rule of law, particularly to help the poor and the oppressed. I am not interested in any high flying titles like Senior Counsel or to be an MP or hold powerful positions,” said Mr Ravi.
Background of Gobi Avedian’s case
Mr Gobi was previously sentenced to death for drug trafficking by the Court of Appeal after the court overturned the decision of the High Court to acquit him of the capital charge and convict him on a lesser charge trafficking in a “Class C” controlled drug.
On appeal, Mr Gobi’s acquittal was reversed and the Court of Appeal convicted him as charged, sentencing him to death as he did not fulfil the requirements for alternative sentencing in October 2018.
His clemency petition to President Halimah Yacob was rejected in July last year.
Subsequently, Mr Gobi’s case was taken over by Mr Ravi who proceeded to file an application to reopen the case.
He relied on two new legal arguments–which included the Court of Appeal’s pronouncement in Adili Chibuike Ejike v Public Prosecutor last year–to argue that the Court of Appeal had erred in departing from established precedents and had wrongly presumed that Mr Gobi was wilfully blind as to the nature of the drugs.
Deputy Chief Prosecutor and Senior Counsel Mohamed Faizal, who led the prosecution during the appeal and review hearing, argued that Mr Gobi’s application was an abuse of process.
The Court of Appeal, in setting aside Mr Gobi’s capital charge on 19 October, observed that “there are legal arguments based on the changes in the law that arose” from its decision in Adili on which it “may conclude that there has been a miscarriage of justice” in Mr Gobi’s initial appeal process.
Referencing Section 394J of the Criminal Procedure Code (CPC), the judges said that there is a “powerful possibility” that its decision in Mr Gobi’s initial appeal is “demonstrably wrong” in the light of the said legal arguments which were not available at the time but are present now.
The judges ruled that Mr Gobi’s conviction on the capital charge is set aside.
“We are also satisfied that the Applicant’s conviction on the amended charge by the [High Court] Judge is sound and accordingly reinstate that conviction,” they said.
As such, the Court of Appeal reinstated the sentence of 15-years’ imprisonment and 10 strokes of the cane which was imposed in respect of the earlier amended charge. The court also backdated the sentence to the date of Mr Gobi’s remand.