amendments to the mandatory death penalty for murder and drug

AMENDMENTS TO THE
MANDATORY DEATH PENALTY
FOR MURDER AND DRUG
OFFENCES – THE SINGAPORE
EXPERIENCE
Mr. Damien Chng & Ms. Priscilla Chia
Co-Founders, We Believe in Second Chances
PRE-AMENDMENT POSITION
• Death Penalty was Mandatory for those
convicted of:
• Murder under section 300 of the Penal
Code, and;
• Drug Trafficking/Importation under s5(1) or
(7) read with s33 of the Misuse of Drugs
Act.
AMENDMENTS
• Government made the announcement in
July 2012.
• Penal Code (Amendment) Bill 2012
• Misuse of Drugs Act (Amendment) Bill 2012
• Moratorium on all executions.
MURDER
• Death Penalty now made discretionary for
offences under:
• S300(b)
• S300(c)
• S300(d)
DRUG OFFENCES
• Mandatory Death Penalty no longer applicable
when:
• The accused was only a drug courier AND the
Public Prosecutor certifies that the accused has
substantively assisted the Central Narcotics
Bureau in disrupting drug trafficking activities
within or outside Singapore OR
• The accused was only a drug courier AND was
suffering from diminished responsibility at the time
he committed the drug offence
RETROSPECTIVE EFFECT
• Chance to review sentence for those
convicted under sections 300(b) to (d) of the
Penal Code, or;
• The previously mentioned requirements are
met for Drug offences.
APPLICATION OF THE NEW LAW
• Four murder cases which have had their
sentences reviewed and substituted with life
imprisonment thus far.
• One ‘new’ drug trafficking case where the
new discretion has been exercised.
STARTING POINT
• The punishment meted out should be based
substantially on moral culpability
• Full discretion to judges to ensure that
aggravating and mitigating factors can be
taken into account
• Punishment must not only fit the crime, it
must also fit the criminal
MURDER UNDER S300 OF THE PENAL
CODE
• Four sub-categories:
• S300(a) – Intention to cause death
• S300(b) – Intention to cause an injury which accused knew
was likely to cause death
• S300(c) – Intention to cause an injury and the injury is found
to be sufficient in the ordinary course of nature to cause
death.
• S300(d) – Doing an act which would, in all probability,
cause death
PENAL CODE (AMENDMENT) ACT 2012
• Mandatory death penalty for s300(a)
• Death Penalty made discretionary for
s300(b), (c) and (d)
FABIAN ADIEU EDWIN
• 23 years old at the time of the offence
• Caused the death of the victim in the course of a
robbery
• Found to be of low-IQ
• Sentenced to death before the changes.
• Case reviewed after the changes.
• Death sentence substituted with life imprisonment with
caning.
PROPOSALS FOR REFORM
• Death penalty made discretionary for s300(a)
offences
• There are nonetheless situations where the death
penalty may not be the appropriate punishment:
• Eg, failure to prove a defence or duress
GOPINATHAN NAIR V PP
• Court of Appeal found that he had failed to
successfully raise the defence of
provocation
• There was nonetheless some element of
provocation
• High Court relied on this factor in resentencing
DISCRETION FOR S300(A)
• Duress – not a defence for murder under
s300
• Still a significant mitigating factor
• Cannot be taken into account where death
penalty is mandatory
PROPOSALS FOR REFORM
• Death Penalty removed for s300(c)
• Culpability of offenders not sufficient to require
death penalty
• Intention to cause death or knowledge that death
would result is not required
• Parliament should fill this gap by removing the
death penalty for s300(c)
DRUG OFFENCES
AMENDMENTS
• The accused was only a drug courier AND
the Public Prosecutor certifies that the
accused has substantively assisted the
Central Narcotics Bureau in disrupting drug
trafficking activities within or outside
Singapore OR
• The accused was only a drug courier AND
was suffering from diminished responsibility
at the time he committed the drug offence
DEFINITION OF DRUG COURIER
S 33B. - 2(a)the person convicted proves, on a
balance of probabilities, that his involvement in the
offence under section 5(1) or 7 was restricted —
(i) to transporting, sending or delivering a controlled
drug;
(ii) to offering to transport, send or deliver a controlled
drug;
(iii) to doing or offering to do any act preparatory to
or for the purpose of his transporting, sending or
delivering a controlled drug;
DEFINITION OF DRUG COURIER
• Whether the offender possess the ownership
of the drugs;
• Whether the offender has little or no
influence and control on the overall drug
operations; and
• Whether the offender performs a limited
function under direction
PRACTICAL DIFFICULTIES IN THE
PROCEDURE
• Unclear as to when the determination of the
‘courier ‘ requirement is to be made
• Determined together with the Court’s finding
of guilt?
• Determined after the Court has convicted
the accused?
CHUM TAT SUAN V PP.
• Whether an accused person should be allowed to
adduce new evidence at the conclusion of the trial
• If the Court does not allow this, it might prejudice
offenders
• If the Court allows offenders to adduce new
evidence upon conviction, there is a possibility that
new evidence adduced may undermine the
judge’s finding of fact
ADDUCE EVIDENCE RELEVANT TO
ESTABLISHING THAT OFFENDER WAS
A DRUG COURIER AT TRIAL
• Problematic : Accused is admitting to an
element of the offence
REQUIREMENT OF DRUG ‘COURIER
• Places the accused and the Court in an
difficult position
SUBSTANTIVE ASSISTANCE
• What is the threshold to be
satisfied?
SUBSTANTIVE ASSISTANCE
“If the couriers give us substantive cooperation leading to concrete outcomes,
such as the dismantling of syndicates or the
arrest or prosecution of syndicate members,
that will help us in our broader enforcement
effort.”
Minister of Home Affairs ,
Mr Teo Chee Hean
PP V ABDUL HARIM BIN ADBUL KARIM
& ANOR
• Abdul Haleem’s role was limited to that of
transporting the drugs from one place to
another
• Awarded the certificate of assistance by the
Prosecutor
• If Haleem’s role was really limited as
such,curious how he had any information
that could substantively assist the CNB
SUBSTANTIVE ASSISTANCE
• Onerous burden placed on the accused to
provide substantive assistance
• Drug mules are the lowest on the hierarchy
• Not privy to critical information
• Leaders of most drug syndicates would
deliberately keep information from the drug
mules
SUBSTANTIVE ASSISTANCE
• Whether information is useful depends on
factors not within their control:
• When the CNB do not go far enough to
pursue these leads
• Assistance provided by offender useless
on its own unless put together with other
pieces of information not available to
authorities at that point of time
LACK OF TRANSPARENCY AND
ACCOUNTABILITY
• Public Prosecutor does not have to provide reason
for their decision in issuing or not issuing the
certificate
• Section 33B(4) of the Misuse of Drugs Act:
The determination of whether or not any person has
substantively assisted the Central Narcotics Bureau in
disrupting drug trafficking activities shall be at the
sole discretion of the Public Prosecutor and no action
or proceeding shall lie against the Public Prosecutor
in relation to any such determination unless it is
proved to the court that the determination was done
in bad faith or with malice
SUBSTANTIVE ASSISTANCE
• Whether an offender receives a sentence of
death or life imprisonment hinges on how
useful he/she is to the state in achieving
certain ends.
DIMINISHED RESPONSIBILITY
• Definition:
• Offender suffers from a recognised
psychiatric illness which impaired his
mental faculty at the time when he
commits the offence
DIMINISHED RESPONSIBILITY
• Provision be broadly defined
• EG: persons who may be intellectually
challenged, but not diagnosed with a
mental condition will not fall under this
category
CONCLUSION
• Give the Court full discretion in determining
the appropriate sentence for each offender
convicted of drug offences
• Current requirements should be factors
considered amongst other factors in
determining an appropriate sentence rather
than a condition in and of itself
THANK YOU