Malaysian drug trafficker seeks independent psychiatric assessment in appeal against death sentence

SINGAPORE: Judgment was reserved in the case of convicted Malaysian drug dealer Nagaenthran Dharmalingam's last-minute defence against his execution at the Court of Appeal on Tuesday (Mar 1).

Nagaenthran is appealing against a High Court decision that dismissed his bid to commence judicial review proceedings on the basis that he purportedly possesses the mental age of someone below 18.

The appeal was heard by a panel of five judges: Chief Justice Sundaresh Menon, Justice Andrew Phang Boon Leong, Justice Judith Prakash, Justice Belinda Ang and Justice Chao Hick Tin.

The crux of the appellant's arguments was that Nagaenthran is not competent for execution as he has an intellectual disability. His lawyer, Ms Violet Netto, cited medical reports, international treaty obligations and customary international law to argue this.

The hearing started 15 minutes late as the court waited for Ms Netto to arrive, and lasted for more than an hour.

At the start of the hearing, Chief Justice Menon admonished Ms Netto for keeping the Court of Appeal waiting and for tendering a new medical report to the court that morning, just before the judges entered the courtroom.

"This appears to be an abuse of process, this appears to be calculated to delay the resolution of this matter," he said.

Ms Netto apologised and said she had to attend to her medical problems. She was accompanied by lawyer Ravi Madasamy, better known as M Ravi, who previously represented Nagaenthran.

She received permission from the court for Mr Ravi to give her "technical support" by handing her documents. He also appeared to be whispering into her ear at many points in the hearing, including during delivery of her oral arguments.

"INDEPENDENT" ASSESSMENT AND PRISON MEDICAL REPORT

Ms Netto sought two outcomes. First, she asked the court to order an "independent" psychiatric assessment of Nagaenthran and "up-to-date full neurocognitive test" to evaluate his competence to be executed and for the necessary treatment to be prescribed.

She also asked for adequate time for Nagaenthran to find an "independent psychiatrist willing and able to undertake an assessment".

She referred to a new medical report by Dr Danny Sullivan that the appellant received on Sunday and submitted to the court on Tuesday morning.

In it, she said he supported the proposal for a panel of psychiatric experts to provide a "conjoint opinion and clarify areas of disagreement". She also cited medical reports by two other overseas experts.

Second, she asked that an existing medical and psychiatric assessment of Nagaenthran, which is in the possession of the Singapore Prison Service, be provided "directly and confidentially" to the appellant and with his consent, to her and his family.

Nagaenthran was sentenced to death in 2010 for importing 42.72g of heroin into Singapore in 2009 in a bundle strapped to his thigh. He failed in his appeals to the High Court in 2011, to the Apex Court in 2019 and in his petition to the president for clemency.

He was to have launched this appeal in November last year but was given a stay of execution on Nov 9, one day before he was scheduled to hang, after testing positive for COVID-19.

His case has attracted international attention. There was a full public gallery and several members of the media were in attendance on Tuesday.

LAWYER CANNOT "DRIP FEED" THE COURT

Chief Justice Menon said none of the medical reports cited by the appellant emanated from medical experts who had examined Nagaenthran themselves.

"They have relied essentially on information that was furnished to them based on the observations of the applicant and based on the observations and, it seems to be, opinion of Mr Ravi," he said.

"The source of this application is really the supposition of the applicant's brother and Mr Ravi that this applicant lacks the intellectual competence to be executed," he said, calling this an "unqualified opinion".

Chief Justice Menon said that the court needed evidence to be persuaded there was a "real issue" to be looked at. He noted that the Attorney-General's Chambers (AGC) had in response to this previously suggested that Nagaenthran's existing medical records be put into evidence.

However, he pointed out that the appellant had objected to the medical evidence being put before the court, even though that would provide an "objective basis" to see if there was substance to the appellant's complaint.

Taking issue with the belated submission of the latest medical report, Justice Phang said the appellant had made many last-minute applications in the course of the appeal, adding: "I think the key motif here is 'last minute'."

"As an officer of the court, you can't drip feed one by one. If you're dealing with everything in good faith, and I'd like to assume that, then everything should be done upfront," he said, adding: "The process cannot be abused."

When addressing Ms Netto, Chief Justice Menon had to repeatedly call for her attention at times during the hearing when she was consulting with Mr Ravi.

At one point, he remarked: "Why don't you finish talking to Mr Ravi, he's obviously keen to give you technical assistance."

INTERNATIONAL LAW ARGUMENTS

Chief Justice Menon then asked Ms Netto whether she had any further submissions if the court did not agree with her on ordering a medical examination for Nagaenthran.

She invoked Singapore's treaty obligations, citing various international law instruments including the United Nations Convention on the Rights of Persons with Disabilities, as well as resolutions of the UN General Assembly, UN Economic and Social Council and UN Commission on Human Rights.

In response, Chief Justice Menon referred to the Court of Appeal's 2015 decision on drug trafficker Yong Vui Kong, which pointed out that given Singapore's "dualist jurisdiction", where an international treaty is concerned, specific legislation must be enacted by Parliament to implement the treaty before it has the force of law in Singapore.

He said that any possible violation of international law therefore did not impact a domestic court applying domestic law, and that invoking treaties "doesn't change the analysis" in the present case.

PROSECUTION RESPONDS

Deputy Public Prosecutor Wong Woon Kwong described the appeal as a "cynical attempt" against the High Court decision, with various last-minute applications made.

"With respect, there is really no reasonable excuse for the manner in which this case has been conducted by my learned friends," he said.

He said there was no reliable evidence that Nagaenthran's mental condition had deteriorated and that he was not competent for execution, and no basis to grant the application for him to be assessed by a panel of psychiatrists.

He also said it was "highly material" that the appellant continued to suppress "objective" medical records from being entered as evidence, choosing not to let the court see them.