Lawyer asks President to stay execution

May 10, 2005
Singapore Democrats

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Below are arguments put forth by Mr M Ravi, counsel for Mr Shanmugam. They have been submitted to President in the hope that he will call for a stay of execution of Mr Shanmugam which is due to take place in less than 3 days.

1. If as counsel for a condemned person, I am able to adduce fresh evidence or canvass a new argument which has merits, in both situations, after the Appellate process has been exhausted (that is after an appeal has been heard by the Court of Appeal), what recourse does my client, the condemned man, have?

2. As it stands the court restated their position in the case of Vignes Moorthy v PP that it does not have the power to re-open a case where an appeal had already been heard and dismissed by the Court of Appeal.

3. This is what the Chief Justice meant when he said: “When Mr Ravi asked the CJ if the public prosecutor was ‘still maintaining that an innocent man be hanged because of procedure’, the CJ answered : ‘Yes, the answer is yes.’ (Today Online, 27 September 2003, Teo Hwee Mak and Joy Frances)

Was Vignes Mourthy innocent? Was he hanged due to the legal procedures in Singapore?

4. The aforesaid clearly shows that there is a serious defect in our legal system, since it has undeniably been stated by the Chief Justice himself that an innocent man can be hanged.

5. From my point of view the Courts have revisionary powers which they ought to have defined in Vignes Moorthys case. Unfortunately, they made a decision which completely shuts the door on the condemned prisoner. This is brutal where an innocent person is concerned because a man is presumed to be innocent. Article 9 (1) states: no person shall be deprived of his life or personal liberty save in accordance with law.

6. Law here means the due process. Due process must mean that an innocent man cannot be hanged.

7. We are forgetting the cardinal principle in the criminal justice system that is it is better to allow 9 guilty men to go free than to hang one innocent man.

8. Putting aside the court system in Singapore, where do we go from here?

9. We can wait for Parliament to legislate specifically to give redress in situations when fresh evidence or new arguments are raised to empower the court to re-open the case.

10. The question is: How many innocent people are going to be hanged before the legislation is passed, if at all?

11. However, there is definitely a way out of this seemingly hapless situation.

12. The elected President can stay the execution of Shanmugam pending the convening of a Constitutional Court under Article 100 of the constitution and hear our arguments on behalf of Shanmugam. In my opinion, the courts have the power to hear new arguments.

13. However, since they have taken a definite stand in Vignes Moorthys case that the
court does not have the power, we have to turn to the elected President.

14. We wish to place on record that the position taken by the court in Vignes Moorthys case would render all subsequent executions suspect.

15. Shanmugams case

(a) There is a miscarriage of justice in Shanmugams case. He was discriminated against in violation of Article 12 (1) of the Constitution. Article 12 (1) of the constitution which states: all persons are equal before the law and entitled to equal protection.

(b) The discrimination is shown from the fact that the Attorney General
proceeded to reduce the charges of 6 other cannabis traffickers when the same was not done for Shanmugam.

(c) This was despite the fact that Shanmugam was prepared to plead guilty if the charge had been reduced by the prosecution to trafficking of 499 grams of cannabis.

(d) In 2 of the six cases the accused persons were found to have trafficked in more than 2 kg of cannabis and yet the Attorney Generals Chambers was prepared to reduce the chare to a non-capital charge of trafficking 499 grams. A mere one gram below the 500 legal limit.

The following are some of the cases referred to in the Clemency Petition where other accused persons who trafficked in much larger amonts of cannabis, have had their charges reduced to non-capital charges :

i. PP v Koh Thong Kheow

In Criminal Case No 29 of 2003, the accused Koh Thong Kheow was arrested on 18/12/2002 and found to be in possession of 2067.6 grams (nett) of cannabis for the purpose of trafficking, an offence under s.5(2) of the Misuse of Drugs Act, Cap. 185, and punishable with Death.

Koh was committed to stand trial in the High Court on a charge of trafficking in 2067.6 grams (nett) of cannabis, a capital offence.

On 21/7/2003, the capital charge was reduced by the prosecution to not less than 499 grams of cannabis for the purpose of trafficking.

Koh pleaded guilty to the reduced charge before His Honour Justic Choo Han Teck and sentenced to 23 years imprisonment and 15 strokes of the cane.

ii. PP v Dhanabalan S.0 A.Gopalakrishnan

In PP V Dhanabalan S/o A.Gopalkrishnan (Criminal Case No.33 of 2003) the accused was charged with being in possession of 2715.6 grams of cannabis (nett) for the purpose of trafficking at Blk 52 Teban Gardens Road, #13-588 a capital offence. The charge was amended by the presecution and on 20/8/2003, the accused pleaded guilty to a reduced charge of being in possession of not less than 499 grams (nett) of cannabis.

The accused was sentenced by Justice Choo Han Teck to 20 years imprisonment and 24 strokes of the cane.

iii. PP v Saiful Baktiar bin Bahri

In PP v Saiful Baktiar bin Bahri 9DAC 48068/2004), the accused sold 1105.59 grams (nett) of cannabis to Chang Yong Sen Vincent on 13/4/2004, a capital offence.

The charge was subsequently reduced to a non-capital offence when the prosecution amended the charge to reflect the sale of not less than 499.9 grams (nett) to Chang Yong Sen Vincent on 13/4/2004

The accused pleaded guilty on 14/12/2004 in District Court No.2 to the amended charge of selling not less than 499.9 grams (nett) of cannabis to Chang Yong Sen Vincent and was sentenced to 20 years imprisonment and 15 strokes of the cane.

iv. PP v Chang Yong Sen Vincent

In PP v Chang Yong Sen Vincent (DAC 48087/2004), the accused was found to be in possession of 1105.69 grams of cannabis (nett) at Blk 555, Hougang St 51, #03-320, and was charged with a capital offence. The charge was subsequently amended by the Prosecution to reflect the nett weight of cannabis to be not less than 499.9 grams.

On 14/12/2004 in Distrcit Court No.2, the accused pleaded guilty to the amended charge and was sentenced to 20 years imprisonment and 15 strokes of the cane.

v. PP v Mohamed Farouk bin Mohd Mustafa

In Mohamed Farouk bin Mohd Mustafa (DAC 38420/2004), the accused was found to be in possessin of 773.52 grams (nett) of cannabis and was charged with a capital offence.

The prosecution subsequently amended the charge to reflect an amount of not less than 449.9 grams (nett) of cannabis.

The accused pleaded guilty on 15/4/2004 in District Court No.9 before District Judge Siva Shanmugam and was sentenced to 20 years imprisonment and 15 strokes of the cane.

vi. PP v Rahmat bin Abdullah & Anor

In PP v Rahmat bin Abdullah & Anor (Criminal Case No.34 of 2003), the accused and co-accused were originally charged with conspiracy to traffic in 1063 grams (nett) of cannabis, a capital offence. The accused also faced 7 other charges of trafficking in various quantities of cannabis as well as a charge of consumption of a controlled drug. The co-accused faced 5 other charges.

The prosecution reduced the capital charge against both accused persons to a non-capital charge of trafficking in 499.9 grams (nett) of cannabis.

Both accused pleaded guilty to the reduced non-capital charge on 9th September 2003 before Justice Choo Han Teck and were sentenced to 22 years imprisonment. The co-accused was also ordered to receive 15 strokes of the cane.

(e) In PP v Taw Chen Kong, the Chief Justice quoted the Privy Council case of Ong Ah Chuan v PP, where Lord Diplock succinctly states the equality provision.

Equality before the law and equal protection of the law require that like should be compared with like. What Article 12 (1) of the Constitution assures to the individual is the right to equal treatment with other individuals in similar circumstances.

(f) In line with the aforesaid, there is a serious miscarriage of justice in Shanmugams case. We are not questioning the wide discretion of the Attorney Generals Chambers as to what charges they intend to prefer against the accused persons. But the manner in which the discretion is exercised can be judicially reviewed. In this instance, it is discriminatory and biased.

(g) If the President fails to convene a Constitutional Court before Shanmugam is hanged, it would mean that there is a constitutional crisis in Singapore given the present scenario.

The judges said their court was not the constitutional court therefore could nor decide the matter. (Today Online, 27 September 2003, Teo Hwee Mak and Joy Frances)

The problem in relation to the administration of justice in Singapore has to be addressed before a mans life is gone.

Dated this 10th Day of May 2005
Oxford Hotel, 3 p.m

M.Ravi
Counsel for Mr.Shanmugam Murugesu