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CNA Explains: Why a person may not get a death sentence even if convicted of murder

Why are some murderers sentenced to life imprisonment while others are sentenced to death? CNA uncovers the different scenarios, the prosecution's role and if life imprisonment is really for life.

CNA Explains: Why a person may not get a death sentence even if convicted of murder
Police cars seen along Punggol Field on May 10, 2020, after a jogger was murdered. (File photo: Daymon Lim)

SINGAPORE: In mid-September, a 22-year-old man was sentenced to life imprisonment and caning for stabbing a stranger to death while they were both jogging in Punggol.

Surajsrikan Diwakar Mani Tripathi was charged with murder under Section 300(c), which is punishable either by death or life imprisonment with caning.

In the aftermath, several readers asked what made the difference - why was Surajsrikan spared the death penalty? CNA spoke to lawyers to find out what goes into deciding if an offender gets sentenced to death or to life imprisonment.

Are there different "degrees" of murder?

The death sentence used to be mandatory until January 2013, when the Penal Code (Amendment) Act 2012 (Act 32 of 2012) came into operation, said Ms A Meenakshi, an associate at IRB Law.

The amendment allowed the court to have the discretion to sentence a person to life imprisonment with caning instead of death for certain murder offences.

The first factor that determines whether an accused person receives the death penalty or life imprisonment is the selection of the charge against him or her, said Mr Johannes Hadi, partner at Eugene Thuraisingam LLP.

"The Penal Code sets out a hierarchical rubric for the categorisation of homicide offences," he explained. 

At the top of this hierarchy is Section 300(a) – murder with the intention to cause death. This is the most serious and carries the mandatory death penalty, said Mr Hadi.

"This means that if one is convicted of a Section 300(a) charge, the only possible sentence is death."

There are three other types of murder offences: Section 300(b), (c) and (d). Section 300(b) is where the act is done with the intention of causing a bodily injury that the offender knows is likely to cause death. 

Section 300(c) is if the act is done with the intention to cause bodily injury to a person, and the injury intended is sufficient to cause death. Section 300(d) is where the person committing the act knows it is so imminently dangerous that it must in all probability cause death or an injury likely to cause death, and commits such an act without any excuse for incurring the risk of death. 

Anyone convicted of these three offences can be sentenced either to death or to life imprisonment and caning.

Even for Section 300(a), there are two exceptions to the mandatory death penalty, said Ms Tania Chin, litigation partner at Withers KhattarWong.

These are: Where the offender was under the age of 18 at the time of the murder, or where the offender was pregnant at the time of sentencing.

The first case in Singapore where the Court of Appeal dealt with the issue of when a court can and should impose the death penalty for murder was the case of Kho Jabing, said IRB Law's Ms Meenakshi.

In that case, he was sentenced first to life imprisonment for murder. However, the Court of Appeal reversed the High Court's decision and sentenced Kho to death. He has since been executed.

The Court of Appeal held that the death penalty is warranted where the actions of the offender outrage the feelings of the community, and where there is viciousness or a blatant disregard for human life, said Ms Meenakshi.

Several factors go towards deciding on blatant disregard, lawyers said. These include the mental state of the offender at the time of the attack, his role or participation in the attack, and his age and intelligence.

Who decides which murder charge an accused person receives?

The prosecution has the discretion to decide which charge to bring against an accused. 

"The prosecution could well prefer a charge with discretionary death sentence, even if the mandatory death penalty charge under Section 300(a) can be made out," said Ms Chin.

The burden of proof is on the prosecution to prove its case beyond a reasonable doubt, she added.

"Due to the high degree of culpability required, and the high threshold of proving an intention to kill under Section 300(a), the prosecution may in certain situations choose to proceed with Section 300(b), (c) or (d) instead."

Ms Chin gave an example of where a person stabs a victim twice in the thigh and the victim dies. In such a situation, the prosecution is more likely to allege an intention to cause bodily injury that is likely to cause death – under Section 300(b) – or the intention to cause bodily injury sufficient in the ordinary course of nature to cause death – Section 300(c). This is because it is easier to prove than an intention to kill, even if the victim did die as a result.

The prosecutor would primarily be guided by the evidence in a case when deciding whether to prefer a Section 300(a) charge against an accused person, said Mr Hadi of Eugene Thuraisingam LLP.

Other than considering whether the person intended specifically to cause the victim's death, another important consideration would be the assessment of the public interest demands of the case, he said.

Even if the prosecution selects a charge without the mandatory death penalty, it can still submit that the appropriate sentence should be death, said Mr Hadi. The court will ultimately make the decision.

Commenting on the case of the Punggol jogger murder, he said it appears that the offender's multiple mental disorders, intellectual limitations, lack of previous offending and relatively young age may have been relevant considerations.

Ms Meenakshi pointed to the case of Daryati, who murdered her employer. The former maid was sentenced to life imprisonment instead of death.

In sentencing her, the High Court judge noted: "The specific nature of the incident did not reflect a cold and calculated killing, but rather, intense panic and distress in executing her plan to return home. I therefore exercised my discretion to impose a term of life imprisonment.”

Is life imprisonment really for life?

A sentence of life imprisonment in Singapore means the offender will be imprisoned for the duration of his or her natural life, said Withers KhattarWong's Ms Chin.

However, the Prisons Act 1993 provides that after such an offender serves 20 years in jail, the Minister of Home Affairs must review the case. The minister may then direct the Commissioner to make a remission order. 

If a life sentence is remitted, various conditions will be imposed on the offender. The life sentence will be suspended, said Ms Meenakshi, and cancelled when the offender dies.

If the offender is found unsuitable for a remission order, the Prisons Act mandates that the minister must review the decision periodically, at least once a year, said Ms Chin.

However, in reality, there's no guarantee of release, said lawyer Josephus Tan. 

Asked if he knew of cases where an offender linked to a murder was released on remission, he pointed to the Anthony Ler case. A teenager who murdered Ler's wife on Ler's instructions was granted clemency in 2018, after serving 17 years in jail.

However, this was under the old legal regime, where the offender was detained at the President's pleasure. This has since been repealed and substituted with life imprisonment for offenders who committed murder below the age of 18 at the material time, said Mr Tan.

"For post-1997 cases, I've not personally seen a release after 20 years," said Mr Tan.

Source: CNA/ll(cy)

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