The Sunday Star
by Roger Tan
Singapore has announced that new laws will be drafted by the year-end to abolish the mandatory death penalty for some cases of drug trafficking and murder.
ON Nov 14, 2008, Sandakan (Sabah)-born Yong Vui Kong was convicted of trafficking 47.27g of heroin and sentenced to death in Singapore.
He was 19 when he was arrested at about midnight on June 13, 2007 near the Meritus Mandarin Hotel at Orchard Road by officers from the Central Narcotics Bureau (CNB).
The drugs were found in two packets in a Malaysian-registered car MBK 5317 which the prosecution said Yong had earlier collected from a man in Taman Sentosa in Johor Baru.
Yong then went to look for his friend, one Chai Chor Hsiang, and asked him to drive the car into Singapore.
At the trial, Yong made it clear that Chai had no knowledge of the packages hidden under the driver’s seat. Yong’s defence was that he thought he was collecting debts from his boss’ debtors and that his boss had made him promise not to open the packages.
Yong said even though he was suspicious, he did not think that they contained drugs.
Yong, who initially withdrew his appeal to the Singapore’s apex court, was later allowed to appeal and he did make several other but unsuccessful attempts at the Court of Appeal.
Among others, he unsuccessfully challenged the constitutionality of the mandatory death sentence.
He failed too in his arguments that his prosecution contravened the constitutional provision on equal protection when the Public Prosecutor decided to discontinue three capital charges against one Chia Choon Leng whom Yong had identified as the man in Johor Baru who on June 12, 2007 had asked him to deliver the “gifts” to Singapore.
Yong had also sought clemency from the Singapore President but it was turned down.
Yong’s plight attracted the sympathy of many people, both within and without Malaysia.
Described by his lawyers as “impoverished and vulnerable”, many felt that Yong should be given a second chance as he was too young and naïve to appreciate the gravity of the act when he was arrested.
There appears to be one glimmer of hope for his death sentence to be commuted to life imprisonment.
On July 9 this year, Singapore Deputy Prime Minister Teo Chee Hean announced in Parliament that new laws would be drafted by the year-end to abolish the mandatory death penalty for some cases of drug trafficking and murder.
Teo said that under the new laws, judges will have a discretion to impose life imprisonment in lieu of the death penalty in cases of non-intentional murders and drug trafficking where the trafficker only plays the role of a courier or “mule” (that excludes kingpins, producers, distributors, retailers and funders of the drug trade and their abettors) and he has cooperated with the CNB in a substantive way or he has a mental disability which has substantially impaired his appreciation of the gravity of the act.
Teo added that executions have also been deferred since July last year when a general review of the mandatory death penalty laws commenced.
Currently, there are 35 inmates on death row in Singapore – seven for murder and the rest for drug offences.
It was also reported that the new laws will have retrospective application in that the 35 convicts, including Yong, can apply for a review of their sentences to be commuted to life imprisonment.
This is indeed a significant milestone in the criminal justice system of Singapore considering that the mandatory death penalty for murder and drug trafficking was respectively introduced in Singapore in 1871 and 1975.
Teo explained that this was to ensure that the laws keep pace with the evolving operational landscape and societal changes.
The Singapore Law Society, which has been advocating for abolition of the mandatory death penalty for all offences, hailed this as a historic moment for the criminal justice system in Singapore as it represented a significant step in humanising criminal law.
But the two conditions to be met in the case of drug trafficking are rather stringent.
Teo stressed that the amendment is aimed at, inter alia, dismantling of drug syndicates.
“If the couriers give us substantive cooperation leading to concrete outcomes, such as the dismantling of syndicates or the arrest or prosecution of syndicate members, that will help us in our broader enforcement effort,” said Teo.
He went on to explain why Singapore first imposed a mandatory death penalty threshold for heroin at 15g which have the same weight of just a few 50-cent coins.
“In street form in Singapore, at a typical purity level of 2.3%, 15g of pure diamorphine is equivalent to some 2,200 straws of heroin worth S$66,000, based on each straw having a gross weight of about 0.3g and street price of about S$30. This quantity is enough to feed the addiction of more than 300 abusers for a week,” said Teo.
“In such cases, the death penalty is imposed, given the harm caused by these drug traffickers, and the numbers of lives they destroy.”
Law Minister K. Shanmugam also lamented that what is never in the headlines is the level of sadness and impact these crimes have on the social fabric of society.
He stressed that any changes must strike the right balance as crime must be deterred and society must be protected against criminals.
“Criminals should receive their just desserts. But justice can be tempered with mercy and, where appropriate, offenders should be given a second chance”, said Shanmugam.
Indeed, justice and mercy are two virtues which often conflict with one another.
Abraham Lincoln once said mercy bears richer fruits than strict justice. On the other hand, he also admitted: “He reminds me of the man who murdered both his parents, and then when sentence was about to be pronounced, pleaded for mercy on the grounds that he was an orphan!”
In response to this review by Singapore, Attorney-General Tan Sri Abdul Gani Patail revealed that his chambers have been doing research since late last year with the view of abolishing the mandatory death penalty for drug couriers.
As at Feb 28 this year, there are 860 convicts on death row.
It is regrettable that this was not made known earlier, thus giving the impression that the laws of our neighbour are more progressive than ours.
That is why our government must expedite the establishment of an independent law reform commission to review all the antiquated laws of our country.
Personally, I support the abolition of the mandatory death penalty. But that is not to say that the death penalty should be abolished altogether. All it means is that judges should be given discretion to decide whether to sentence a convict to death or life imprisonment.
Perhaps the doing away of the mandatory death penalty can even help the prosecution secure more convictions as judges are generally reluctant to impose the death sentence in the absence of any overwhelming evidence.
Currently, if a person is convicted of an offence which carries the mandatory death penalty, it is really pointless for the defence counsel to even make any mitigation plea because whatever he is going to say will not make any difference as the judge will have no option but to sentence the convict to death.
By untying the judges’ hands, justice can be better served and every convict of a capital offence has a hope that he may not die if he truly does not deserve to die.
Further, unlike other sentences, a death sentence erroneously made is irreversible.
In the words of John Ronald Tolkien of The Fellowship of the Ring, “Do not be too eager to deal out death in judgment. For even the very wise cannot see all ends.”
However, until Singapore has passed the new law, it is still too early to tell, without sight of the exact wording of the statutory provision, whether Yong falls within this category.