Accused did not get adequate and fair trials in murder cases: M Ravi

April 19, 2008
Singapore Democrats

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1. At the United Nations General Assembly of 2007 Singapore was found to be at the forefront of nations opposing the call for a moratorium on executions However, Singapore found itself isolated by the International Community when the United Nations General Assembly passed a resounding resolution calling for a worldwide moratorium on executions on 18th December 2007.

2. The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions noted in a 2005 report that legal safeguards in Singapore do not meet international human rights standards. The Law Society of Singapore have recommended to the government to reconsider the mandatory death penalty in

giving judges discretion in sentencing. The Malaysian Bar Council went a step further in passing a resolution for a total abolition of the death penalty. Political and civil society groups here have also called upon the government to abolish the death penalty.

3. Amnesty International recently issued its urgent appeals to the President and the Cabinet in two of the following cases: due process of the law had not been complied with in the first case, and the second case concerns the violation of international law.

Tan Chor Jin – unfair trial

4. Tan Chor Jin (Tan) also known as “One-Eyed Dragon” is facing execution after his final appeal against his sentence of death was dismissed on 30th January 2008. Tan was sentenced to death for the murder of a man who allegedly owed him money.

Solitary confinement

5. Prior to his trial, Tan was reported to be kept in solitary confinement for 220 days at Complex Medical Centre (CMC) of Changi Prison for psychiatric evaluation. The conditions of detention were reported to be oppressive and also affected his preparation for his trial. Solitary confinement of 220 days exceeds the time reasonably needed for a psychiatric assessment and his detention in such conditions may have constituted cruel, inhuman or degrading treatment. It is odd that Tan was given solitary confinement to be evaluated for mental illness when solitary confinement by itself is known to cause or aggravate mental illness.

Stuart Grassion, M.D., an authoritative psychiatric expert in Madrid v Gomez, a class action suit concerning conditions at Pelican Bay State Prison, California’s “supermax” prison facility, concludes that solitary confinement — that is, the confinement of a prisoner alone in a cell for all or nearly all of the day, with minimal environmental stimulation and minimal opportunity for social interaction – can cause severe psychiatric harm. In addition solitary confinement often results in severe exacerbation of a previously existing mental condition or in the appearance of a mental illness where none had been observed before.

Inadequate legal representation

6. Initially, Tan had a lawyer during his trial but later discharged his lawyer and conducted the trial on his own. After reading the prosecution’s closing arguments during his trial, he requested a lawyer. The trial Judge, Justice Tay Yong Kwang, dismissed the accused’s plea for legal representation at that stage. Tan’s appeal lawyer in arguing for a retrial noted that in countries such as the United States, an appointed defence lawyer follows the case even if he is turned down by the accused, in case the accused should change his mind.

7. Tan’s case once again raises serious questions about our criminal justice system and due process especially in cases involving the death penalty. The accused facing capital punishment is entitled to have the state assign him a counsel. The denial of Tan’s right to adequate legal representation in his capital case is a serious breach of the duty of the state to provide such representation. Also the nature of solitary confinement compounds the problem of a fair trial. The learned Judge ought to have given due consideration to his solitary confinement as possible contributing factors to this apparently irrational “on” then “off” approach to his Counsel.

Malaysian Trio

8. Hamir Hashim (aged 23), Kamal Kupli (aged 24) and Abdul Malik (aged 28) face imminent execution following dismissal of their appeals on 18 February 2008.

9. On the night of 24 December 2005, the trio had been drinking liquor for several hours in the first accused’s room. After the drinking session, the 3 walked towards Kallang. Along the way, they agreed to rob someone as they had no money. They saw the deceased walking alone, and they decided to rob him. They then attacked and robbed him, culminating in the death of the victim.

10. The trial Judge, Justice Kan Ting Chiu, sentenced them on a charge of murder under Section 300 (c) of Penal Code, (PP vs Kamal Kupli and others [2007 3SLR649) held: “The accused persons had intended to assault the deceased to rob him. The fight that ensued was a natural progression of the accused persons’ common intention to overcome the deceased’s resistance and to take his wallet; the common intention was put in operation by their combined assault on the deceased to rob him.”

No Intention to Kill (300 (c))

“Most serious crime”

11. The government, in defence of capital punishment, have argued that it is only reserved for the most serious crimes. “Murder as defined as intentional killing is classified under “most serious crimes” as there is a deliberate intent to cause death.

In Singapore, the scope of murder is however extended in Section 300(c):any death caused by an inflicted injury that can reasonably lead to fatality is classified as murder, even if the intention to cause death was absent. Section 300 © elevates the intention to injure and (the act of which leads to death) as a sufficient requirement for murder, and renders it unnecessary to prove that there was an intention to cause death. The fact that the law lowers the requirement of intention from originally causing death to include causing injury which may lead to death dilutes the claim that murder is to be a “most serious crime”. Favoured by prosecutors, Section 300 (c) has the potential to unfairly place a man who may be guilty of causing grievous bodily harm (where maximum sentence is 7 years plus fine and caning) but innocent of the “most serious crime”, on to death row.

12. According to Professor Michael Hor, who teaches Criminal law at NUS, “The role of criminal law is as it is interesting, but whatever it might be, it surely should not be allowed to determine the infliction of the death penalty under these circumstances. The existence of such a thing as 300(c) murder gives rise to the possibility that one has caused death unintentionally and unknowingly faces mandatory execution. The substantive criminal law of 300 (c) has the potential of diverting the attention of prosecutors, courts and pardon officials away from what is truly “most serious” about the crime of murder- that the intentional killing causing of death.”

Common intention

13. The Malaysian Trio also face another problem caused by the law of common intention, a doctrine which makes it liable for two individuals involved in an unrelated crime (i.e. robbery) to be charged with murder in the event that one of them commit a killing in the course of robbery, even if it was unplanned or unexpected. The individual who did not kill is said to have committed murder because the killing was done “in furtherance” of the common intention. Hence, the issue of common intention can possibly mean that an individual who agreed to rob with another will find himself guilty of murder if the said person commits murder during the course of the robbery – even if the act of killing was unexpected and there was no agreed intention to kill. This again dilutes the meaning of murder – as a “most serious crime” in Singapore.

14. In the 1984 Resolution of the United Nations Economic and Social on Safeguards Guaranteeing Protection of the Rights of those facing the death penalty, “most serious crimes” are defined as those “intentional crimes with lethal or grave consequences”.

Professor Michael Hor says “I do not think that intended wounding plus fatal consequences qualifies to be a “most serious crime”. If for some reason, the victim had not died, the only offence would have been voluntarily causing grievous hurt, a crime with a sentence level way below that of the death penalty. The role of luck in criminal law is as intractable as it is interesting, but whatever it might be, it surely should not be allowed to determine the infliction of the death penalty under the circumstances.”

Mandatory death sentence

15. The problems of Section 300 (c) and common intention are compounded in view of the death sentence that is mandated in murder cases. In the event that a judge returns a verdict in murder cases, he is deprived of the prerogative of sentencing: he is compelled to deliver the death sentence. Hence he may recognise the mitigating factors of 300 (c) and common intention murders, the only sentence he is able to furnish is death, nothing less or more humane. This disregards any extenuating circumstances of the cases that might have disqualified it as a “most serious crime”, and makes the death sentence harshly disproportionate and unjustified.

Campaign

16. Together with the members of SADPC (Singapore Anti-Death Penalty Campaign), a campaign against the execution of Tan and the 3 Malaysians is now being launched.

a) an award winning Polish movie about capital punishment by way of hanging will be screened at a private event on 27th April 2008 followed by a discussion.

b) forum on Anti-Death Penalty is scheduled to take place in the last week of May 2008 which will include the participation of Malaysian Anti-Death Penalty activists.

c) Malaysian organisations like SUARAM, Malaysians Against Death Penalty and Torture (MADPET), Malaysian Bar Council will be approached to lend support in the campaign for the 3 Malaysians on death row. As a member of the AI’s ADPAN (Anti-Death Penalty Asia Network), efforts are underway in coordinating efforts with the regional anti-death penalty networks in Asia.

d) petition the President to convene a Constitutional Tribunal.

e) filing of complaints to UN Rapporteur for urgent intervention.

17. I take this opportunity to invite everyone to participate in this campaign and engage in a robust debate with the state on the above imminent executions borne out of unsafe convictions resulting in unjust punishments. “It would be odd if Singapore citizens of an independent Singapore under an entrenched written Constitution which guarantees fundamental liberties are entitled to rudimentary human rights, when they, as colonial subjects and Commonwealth citizens, enjoyed more rights under international instruments.” – Mr. KS Rajah, a former Singapore High Court Judge.

M.Ravi
Human Rights Lawyer
Anti Death Penalty Activist
[email protected]
Singapore

Note: M Ravi is a patron of Deathwatch International http://www.deathwatchinternational.org/about_us.php