Court of Appeal orders further arguments in case of drug trafficker on death row, execution on hold

SINGAPORE: The Court of Appeal on Tuesday (Sep 22) called for further submissions to be made in the case of a convicted drug trafficker who was to hang last Friday, and put the execution of his death penalty on hold until further notice. 

During the hearing, defence lawyer M Ravi made allegations about a breach of client-solicitor privilege, saying that the Singapore Prison Service (SPS) had given private letters from his client to the Attorney-General's Chambers (AGC).

The "breach" was raised by human rights coalition Community Action Network in a statement on Monday. 

Mr Ravi also claimed that there was prejudice as his client was lined up to hang before foreigners due to reasons related to COVID-19. 

In addition, he alleged that "in essence, no clemencies have been given" in 22 years, suggesting that it was "perfunctorily considered".

Deputy Chief Prosecutor Francis Ng slammed the allegations against the President, saying they were "of a most serious and scandalous nature" being used to denigrate the head of state. He called Mr Ravi's applications "frivolous and vexatious".

After hearing arguments from both sides, Chief Justice Sundaresh Menon, along with appeal judges Judith Prakash and Andrew Phang, ordered parties to file submissions on three points.

First, whether a prisoner awaiting capital punishment has a legitimate expectation that the date on which his punishment is carried out will not result in his being treated differently from other prisoners who are similarly situated.

Second, does the answer to the first question differ if prisoners who are Singaporean are treated differently from those who are not citizens, and third - if there are considerations in respect of the second question that could justify differential treatment. This is in relation to article 12 of the Singapore Constitution, which guarantees equality before the law and equal protection of the law to all persons.

THE CASE

Singaporean Syed Suhail Syed Zin, 44, was arrested in 2011 and convicted in December 2015 of a capital charge of possessing at least 38.8g of diamorphine or heroin for trafficking.

The Court of Appeal dismissed his appeal in October 2018.

He was set to hang on Sep 18, but the execution was stayed at the last minute after his lawyer stepped in.

Mr Ravi sought a review of the court's decision in 2018 to uphold Syed's conviction and sentence on two grounds: That the issue of whether Syed suffered from an abnormality of mind was not sufficiently canvassed before, and that Syed's previous trial lawyer had failed to use available evidence to show that Syed had received an inheritance from his uncle. This would have rebutted the prosecution's argument that Syed could not have bought all the drugs for his own consumption.

Syed's defence at trial and in the previous appeal had been that the drugs were for his own consumption, an argument earlier rejected by the court.

Syed interrupted proceedings on Tuesday and said: "You talk about fairness. What I actually want - me and 50-over guys in the gallows - what we want is mercy. We feel that we can make a difference, given a chance."

Chief Justice Menon told him that the court would engage his counsel instead. 

THE LETTERS READ BY AGC

Mr Ravi began his arguments on Tuesday with a point separate from his actual appeal, by saying he wanted the entire AGC team to be disqualified as it had read privileged communications by Syed to his then-lawyer and to his uncle. 

The letters had purportedly been sent to AGC by the prison, according to Community Action Network, which called it a breach that is "deeply alarming".

In response, Deputy Chief Prosecutor Francis Ng said that the AGC "came into possession of the letters" in the course of preparing documents related to the discharge of Syed's then-lawyer Ramesh Tiwary.

"The letters were not used in AGC's response," said Senior Counsel Ng, adding that he had not personally seen any of the letters.

Mr Ravi said that Senior Counsel Ng should be disqualified, arguing for a new counsel not associated with AGC to be appointed for the case "for the appearance of fairness".

Justice Phang repeatedly stopped Mr Ravi, who spoke over him several times in the hearing, telling him that he could not make "broad sweeping statements" without basis.

He asked Mr Ravi to explain why his client had been prejudiced by the reading of the letters, to which Mr Ravi said it was not the content itself but the fact that the documents were privileged and confidential.

At one point, the chief justice stepped in and told Mr Ravi not to interrupt or be rude, reminding him to observe decorum.

Justice Phang interjected while Mr Ravi read from a judgment in the case of Gobi Avedian and Datchinamurthy Kataiah, telling him that he was the one who wrote that judgment.

Mr Ravi quoted from one part of the judgment, saying that if AGC wished to obtain copies of letters belonging to a prisoner, the proper procedure would have been to obtain the prisoner's consent or an order of court.

Justice Phang pointed him instead to another part of his judgment, which read: "By virtue of the AGC's role as legal adviser to the SPS, it may have access to information that other counsel might not, and it must therefore exercise due caution to avoid the possibility that it seeks an undue advantage."

In the cited case, it was conceded that it was an oversight, and not an attempt by AGC to seek an advantage in the proceedings.

"Therefore, if you want to apply (this case), you need to show what prejudice and what advantage was gained by the prosecution on the facts of this case, because it's not every breach that will result in an advantage," said Justice Phang.

He had difficulty with Mr Ravi's arguments, telling him that they made "no logical sense at all" and were a non sequitur.

CLEMENCY IN DEATH PENALTY CASES, AND COVID-19

Mr Ravi then argued extensively about clemency and death penalties, alleging that in 22 years, there has been no clemency granted to prisoners on death row, suggesting that clemency was not considered properly.

In response, Chief Justice Menon said that his "eloquent choice of words isn't going to make up for the lack of principles", while Justice Phang said that just because no clemency was granted did not mean that it was not considered properly.

He gave a hypothetical example where no one received first-class honours in law school in 100 years.

"Does it mean the grading is unfair? It's just that the candidates were not good enough. Of course, the candidates don't like it. Are they not smart enough? There may be unhappiness. No doubt you are entitled to your views. You are unhappy. But that's not the point. The point is due process."

Mr Ravi responded that a law examination could not be compared with a man's life.

He also alleged that because of COVID-19, Singaporean prisoners might be executed over foreign prisoners, as foreign prisoners do not have access to family members and there may be issues in repatriating their mortal remains to their families abroad.

AGC SLAMS LAWYER'S CASE

Senior Counsel Ng stated in his written arguments that SPS carries out execution of sentences pursuant to a judicial warrant issued under the seal of the Supreme Court.

This is after the court receives a presidential order containing the details of the time and place for the sentence to be carried out, which is in turn made by the president after receiving advice from the Cabinet.

Senior Counsel Ng added that an execution is "a solemn and natural consequence of the law taking its course". He cited a Court of Appeal judgment that said an offender sentenced to death "has effectively already been deprived of his life by the law due to this conviction for a capital offence" and that in the absence of clemency, "his life will be forfeited as decreed by the law".

He said that all of Mr Ravi's grounds, old and new, "are legally incoherent, unsupported by any evidence and smack of a blunderbuss approach towards trying to seek leave by raising illogical arguments".

He said this is precisely that type of "groundless or hopeless case" that the Rules of Court was meant to filter out.

"While the appellant faces the most severe punishment under Singapore’s laws, this is not carte blanche for him and his counsel to put forward all manner of baseless assertions impugning the conduct of public office holders and use judicial review as a tool to dam the flow of justice," said Senior Counsel Ng.

CNA has contacted SPS and AGC for more information.