by MP for Aljunied GRC, Sylvia Lim
This amendment bill has several purposes. I shall first deal with the application of the death penalty, followed by some queries about other aspects of the bill.
Retention of the mandatory death penalty
In July this year, DPM Teo Chee Hean told the House that though the government had been reviewing the death penalty for drug trafficking for some months, it had concluded that “the mandatory death penalty should continue to apply in most circumstances”. Indeed, as explained by DPM Teo just now, this bill retains the mandatory death penalty for trafficking and importation of drugs, except in two circumstances which I will touch on later.
Deterrence has long been central to the government’s stance on having the death penalty and making it mandatory for certain offences. However, how far the death penalty actually deters crime has long been the subject of debate internationally. There have also been conflicting studies on whether the death penalty deters crime or not, though most of these studies were on homicide offences (e.g. Ehrlich, I. (1973). The Deterrent Effect of Capital Punishment: A Question of Life and Death. National Bureau of Economic Research Working Paper no 18; contrast Zimring, F. et al (2010). Executions, Deterrence and Homicide: A Tale of 2 cities. Journal of Empirical Legal Studies 7:1. 1-29.)
I would like to ask the government whether it relied on any particular studies or its own data to conclude that the death penalty or mandatory death actually deters crime and in particular, drug trafficking.
Besides deterrence, capital punishment is sometimes justified from a retributive perspective, i.e. death is considered a just punishment for an offence which is deemed very serious. Which offences “deserve” death may be subjective, and this is a matter of judgment for each society to make. Singapore is understandably tough on drugs, having been through the 1970s when drugs caused untold harm to many families and threatened society in general.
Today, it is not my purpose to canvass the pros and cons of the death penalty per se, but to highlight the real problems caused in our system by its mandatory nature.
As the Workers’ Party has pointed out in the past, giving the sentencing judge no choice in the sentence is undesirable, as the case outcome is determined by the choice of charge, which vests in the Public Prosecutor. Discretion is thus pushed upstream. Moreover, unlike a judge’s decision, which is reached in open court, reasoned and subject to appeal, the Public Prosecutor’s decisions are opaque, not reasoned in the public, and un-appealable.
I am certain that the Public Prosecutor and all his deputies in the Attorney-General’s Chambers are very mindful of the consequences of their decisions on the choice of charge in mandatory death cases. Former Attorney-General Walter Woon summed up the dilemma succinctly in a quote published in the Straits Times of October 20th. He said:
“My problem with the mandatory death penalty is that the hard decisions are taken by the prosecutor when exercising prosecutorial discretion. You cannot imagine the contortions we had to go through to find some way to not charge a person (with a capital crime) because the judge had no discretion but the prosecution did. We did our very best to not charge people with capital offences if we could help it”.
Drug cases highlight the extent of prosecutorial discretion. The PP can decide to prefer heavier or lighter charges based on any set of facts. The PP can even artificially reduce the amount of drugs in the charge to below the actual amount found, to enable the accused to escape death. This practice was expressly recognized as legal by the Court of Appeal in Ramalingam Ravinthran v PP [2012] 2 SLR 49. It would be interesting to find out how many accused facing the death penalty on the facts have escaped death due to the PP’s decisions.
As it stands, the inherent discretion of the Public Prosecutor is already very wide. Retaining the mandatory death penalty arrogates to him the additional discretion of determining the punishment the accused should face, which is not his role; it also emasculates the judges whose role it is to mete out justice based on the facts. I submit that if the death penalty was not mandatory but left to the sentencing judge, the system would be seen to be more transparent and open to public scrutiny.
In the alternative, it would also be open to the government to provide that, for the most serious crimes, death would be the presumptive sentence, leaving an escape clause for the judge not to impose death in special circumstances. There are many precedents in other countries for using presumptive sentences e.g. in Western Australia, the presumptive sentence for murder if life imprisonment but the relevant section allows the judge not to impose it if that sentence “would be clearly unjust” given the circumstances of the offence and the person; and the offender is unlikely to be a threat to society upon release. The government could consider such a device for the most serious offences instead of mandatory death.
Amendments regarding couriers
Under the new S 33B, a courier can escape the death penalty and be sentenced to life imprisonment instead, if his case falls within 2 strictly-defined circumstances.
Certificate of assistance
The first circumstance involves couriers whom the PP will certify have co-operated with the Central Narcotics Bureau (CNB). I have some concerns about this provision.
First, the new S 33B (2) requires the accused to prove that his involvement was restricted to being a transporter, sender or deliverer of the drugs in question. Does this therefore mean that S33B will only apply in cases where the accused admits or pleads guilty to a capital drug charge? Will this provision be available to those who claim trial but, during the trial, decide to admit to being a courier? Put another way, is the PP prepared to issue a certificate of assistance even when the accused claims trial to a trafficking charge?
Secondly, the PP must certify that the accused has “substantially assisted the CNB in disrupting drug trafficking activities within and outside Singapore”. The Explanatory Note to the Bill expressly clarifies that information which does not enhance the effective enforcement of the Act “will not suffice”. According to this wording, a low-level courier who knows nothing about the drug network will go to the gallows, while another courier who has more information (and is presumably closer to the higher echelons) can escape death. This would be a perverse outcome, a point highlighted by Mr Edwin Tong earlier. In addition, the phrase “substantially assisted the CNB in disrupting drug trafficking activities” suggests that the CNB should show some success in its drug operations based on the accused’s information. Is this what is intended? This would not be fair to the accused, as operations may fail due to the information being outdated or due to law enforcement incompetence. Why not simply require full co-operation, without the additional requirement of substantial assistance to disrupt drug trafficking activities?
Thirdly, the PP’s certificate of co-operation cannot be challenged except for bad faith or malice. This means that, in actual fact, the judge’s discretion under S 33B is very limited. However, it is foreseeable that some accused persons may not receive the certificate even if they were willing to provide the CNB with whatever information they had. Since this certificate is truly a life and death matter, is it not better for the judge to decide on the question of co-operation if there is a dispute? In other words, if the defence says that the accused co-operated fully with the PP but yet did not receive the PP’s certificate, the PP should provide the reasons to the court and the court could make a finding? If there is concern is about the sensitivity of operational information given, we could provide for non-publication of the details.
I have one final clarification, on cases where the couriers have already been sentenced to death. If the accused had not shared information previously with the CNB, is it open to him to do so now and hence bring himself within S 33B? It would seem just to give him this avenue, since it was not available to him previously for his consideration.
Mentally vulnerable couriers
The intention behind this change is good. However, I would like to ask why the government decided to follow the wording of diminished responsibility in the Penal Code, when this has been the subject of academic criticism and law reform in other countries? (Stanley Yeo, “Reformulating Diminished Responsibility: Learning from the New South Wales experience” [1999] 20 Sing LR 159; Michael Hor, “Murder: The Abnormal Mind – Mad or just Bad?” (2008) 20 SAcLJ 662).
For instance, during a law reform exercise in New South Wales, psychiatrists there felt that requiring them to confirm the specific cause of a person’s impairment of mind was too difficult and arbitrary. Instead, the NSW law was changed to simplify the defence to require that “the offender’s capacity to understand events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by an abnormality of mind arising from an underlying condition, and the impairment was so substantial as to warrant liability (to be reduced)”.
It should also be remembered that accused persons who may not suffer from any psychiatric condition and yet be vulnerable and easily manipulated. In the case of Rozman bin Jusoh [1995] 3 SLR 317, an accused of subnormal intelligence was entrapped by CNB officers into delivering cannabis i.e. CNB officers instigated him to supply drugs to them. Evidence was placed before the court that his cognitive capacity to reason was borderline in that he would be unable to reason things like persons of average intelligence; that he might easily fall into difficulties and even allow others to hurt or misuse him. The Court of Appeal held that he had no defence. There should be scope in such cases for the death penalty not to be imposed.
I would urge the government to do further review of this provision in due course.
New offence of arranging / planning gatherings
Cl 4 introduces S 11A which makes it an offence to arrange or plan a gathering, knowing that a controlled drug was / was to be consumed at the gathering, if a gathering of 2 or more persons takes place. The wording only requires that there is a gathering, and not that there is a gathering where drugs are in fact present or consumed. Is it the intention to include cases where so long as a gathering takes place, the planner or arranger who thought drugs would be consumed there would be guilty even if eventually no drugs were brought?
Enhanced punishment for influencing young or vulnerable persons to traffic, import drugs
Cl 5 sets out S12A which creates a new offence of procuring a young or vulnerable person to traffic in drugs, which will attract a harsher punishment by way of a stiffer minimum penalty. I agree that an increase is justifiable at this point of time, since the government has found recent evidence that more young abusers are being introduced to drugs by their neighbours and friends who are repeat abusers.
Hair tests
Cl 11 introduces S 31A allowing CNB to conduct hair tests to determine if the suspect should be placed under supervision. The government has explained that the hair test is superior to the urine test because it has a longer detection window of 3 months after the drug is consumed, whereas the urine test has a window of about one week. According to MOS Masagos’ speech at the CNB Workplan Seminar in April, the purpose of introducing the hair test is to “deter CNB supervisees from relapsing into drug abuse as it will be very difficult to avoid detection”.
While MOS has stated that hair tests will be used on existing supervisees, it would seem that hair tests can be used on fresh cases as well. Under S 31A, so long as an officer suspects that a person has consumed drugs, he can order him to provide a hair specimen. How would this work in relation to someone who has consumed drugs overseas? Should a Singaporean who consumes cannabis in Amsterdam two months ago expect to have his hair tested upon arrival at the airport? I note that the existing S8A of the Act criminalises drug consumption overseas by Singapore citizens or permanent residents if their urine tests are positive upon return; however this amendment bill does not amend that section to say these returning residents are subject to hair tests too. Could this be clarified please?
Conclusion
This amendment bill enhances various tools and punishments to tackle trends of concern, and also takes a step in mitigating the harshness of the mandatory death penalty regime. To that end, it is to be supported. However, as mentioned at the start of my speech, I believe the government needs to continue its review of the death penalty in particular its mandatory nature. In addition, the courier clauses appear to be problematic and should be monitored closely for further review.