New book puts death penalty on trial

To give a new twist to an old saying: Justice unevenly applied is justice denied.

Alan Shadrake, in his new book, Once a Jolly Hangman — Singapore justice in the dock, shows how uneven it is. It’s a tour de force covering cases from the early 1990s to nearly the present, many of them ending with the prisoner meeting Darshan Singh, Singapore’s hangman for the last half-century. But some of them do not meet this fate, and therein lies the twist.

When clemency campaigns are mounted and the occasional blog takes an interest, the story centres on a particular death row prisoner and for a particular crime, and understandably so. However, the result is that while we see a particular case, we seldom have the opportunity to see how the death penalty is used across a number of years.

With the release of this book, we cannot now say we can’t take in the bigger picture. Once a Jolly Hangman allows us to compare how one case was handled with another that had similar circumstances or gravity. What emerges is a very unflattering pattern of inconsistent “justice”, the dispensation of which is compromised in three important ways:

1. When foreign governments have clout over our economic interests and are willing to use that clout, their citizens will not face the death penalty;

2. When local citizens come from rich, well-connected families, or when a case threatens to involve others from this stratum of society, a way is found to avoid having them face the death penalty or even severe penalties;

3. When the state is convinced that an accused who is poor and “low-class” is guilty, and provided that exception no. 1 above does not apply, due process is less important than putting him on the fast-track to the noose.

The net outcome of these controlling conditions is that the application of capital punishment in Singapore is not a matter of justice. The most important decision as to whether someone is to be hanged is really a political one: some people can be hanged, others just cannot be hanged, and it is the government that determines who, not a court.

Condition no. 1 and 2 above can be expressed graphically:

Compare the case of Amara Tochi from Nigeria (Chapter 20) with Julia Bohl from Germany. Tochi was caught by chance at Changi Airport with more than 15 grams of heroin (the threshold that makes the death penalty mandatory) in his bag given to him by a man he hardly knew in Pakistan. The judge made the following finding of fact at his trial: “There was no direct evidence that he knew the capsules contained diamorphine. There was nothing to suggest that Smith had told him they contained diamorphine, or that he had found out on his own.” Nonetheless,  Tochi was found guilty because the judge felt he ought to have known and he could not prove the negative, i.e. he could not prove that he really didn’t know. This is because Singapore law on drug cases imposes a presumption of guilt, not innocence. It is for the accused to prove his innocence, not for the prosecution to prove guilt. Tochi was hanged January 2007.

Julia Bohl (Chapter 10) had been closely watched by the Central Narcotics Bureau for several months as a supplier of various party drugs to high society. Piecing together various reports, Shadrake shows that an undercover officer was planted in her company, eventually gaining her confidence. In a raid mounted on a party one night in March 2002, Bohl and several others were arrested, with Bohl charged for having 687 grams of cannabis in her possession, above the 500-gram threshold that mandates the death penalty. The German government applied maximum pressure on Singapore, threatening economic reprisals.  The seized drugs (all or part of it?) were then re-analysed by a laboratory which issued a  new report that said there were just 281 grams. She was sentenced to five years in jail, serving only three.

One of Bohl’s likely customers and sub-seller was Mike McCrea. He killed his driver Kho Nai Guan and Kho’s girlfriend Lan Ya Ming, most probably due a dispute over a theft of a stash of drugs. However, by the time the bodies of Kho and Lan were discovered, McCrea had fled, first to Britain, then to Australia. Singapore tried to get him extradited, but Australia would not agree if doing so meant that someone faced execution. So a bargain was struck and McCrea faced only the reduced charge of culpable homicide that carried a maximum penalty of 10 years’ imprisonment for each killing.

After another lengthy investigation, a series of arrests were made in October 2004 (Chapter 17). Sixteen Singaporeans and seven foreigners, including two permanent residents were arrested and faced a variety of charges ranging from consumption to dealing. One of the accused was Dinesh Singh Bhatia, the son of former judicial commissioner Amarjeet Singh. He faced 10 years behind bars for consumption. His defence lawyer, K Shanmugam (now the Minister for Law) submitted to the trial judge that Dinesh Bhatia did not know it was cocaine that he was snorting. (I can’t for the life of me think of any other substance that one would snort, and no, snuff is not snorted in the same way). In the end, after appeal, Bhatia’s sentence was reduced to eight months, but less than three months after that, he was reported by the Straits Times to be at home, albeit wearing an electronic tag.

Others rounded up, all members of high society (financial broker, managing director of an oil trading firm, award-winning chef, etc), similarly got just months in jail when convicted. Investigations pointed to a Tunisian, Guiga Lyes Ben Laroussi, as the main supplier, himself a high-ranking executive. Laroussi was arrested on the capital charge of trafficking, but when the haul was assayed a second time, the quantity he was accused of diminished miraculously below the mandatory hanging threshold. Then he was given bail on his own recognition, upon which he promptly disappeared from Singapore, even though his passport had been impounded. No serious attempts have been made to find him or to press Interpol for assistance, despite having him listed there for years.

Without Laroussi, it has been hard to follow up with other arrests. As Shadrake wrote in the book (pages 145 – 146):

During the CNB investigation [Laroussi] refused to name any of his other customers — while hinting there were more prominent members of Singapore’s high society he could expose as serious drug users, which, I was reliably informed, would create an even bigger scandal among the country’s elite. He decided to hold on to his secret list of clients as a bargaining chip — his ace in the hole — when the time was right, when the shadow of the gallows loomed. But it was this plea bargaining strategy that the authorities were only too pleased to entertain. ‘They were terrified that if he were to be tried for a capital offence with the gallows as the end game, he would first “blow the lid off” Singapore’, a lawyer close to the case told me.

Shadrake interviewed a number of lawyers and persons involved in investigations while researching for this book. He had to promise confidentiality to his informants, one of whom, perhaps the most useful, was a former Central Narcotics Bureau officer who was angered by the way things worked.

The case that the book details in support of the third contention — that due process is sometimes less important than putting someone on the fast track to the noose — is the most disturbing. Chapter 18 recounts how Vignes Mourthi, a Malaysian who commuted to Singapore for work, was found guilty of trafficking 27.65 grams of heroin in 2002. Vignes claimed at his trial that he did not know he had heroin on him; he thought that what he had been given to hand over to a contact was a pack of precious incense stones used in Hindu worship, a claim of innocence he maintained throughout.

The prosecution’s case and the verdict rested mainly on a handwritten note by the arresting officer recording the alleged conversation that took place between the officer Rajkumar and Vignes just before the arrest on 20 September 2001. Rajkumar was posing as the buyer and in his undated note said that Vignes’ replies during the short conversation indicated the latter knew that what he had handed over were drugs. There was no corroboration of the account contained in this handwritten note, nor even any indication it was not written up far later, yet it was what the judge relied on to convict Vignes.

Vignes was hanged on 26 September 2003.

The day after Rajkumar arrested Vignes, a woman accused Rajkumar of raping and sodomising her. Two days later, on 23 September 2001, Rajkumar himself was arrested on these complaints. He was apparently not suspended from duty and continued to be part of the prosecution’s case against Vignes.

Eventually, the woman withdrew her accusations, but by then, police investigations had begun of Rajkumar and fellow officer Balbir Singh for offering large amounts of money to the woman to persuade her to do so. The men were later found guilty of corruption and sentenced to fifteen and six months’ imprisonment respectively. Page 161:

But it was not until Vignes Mourthi was hanged that Rajkumar’s trial began. When Rajkumar, whose contested testimony had sent Vignes Mourthi to the gallows, was sentenced, Judge Sia Aik Kor described his actions as ‘so obviously corrupt by the ordinary and objective standard that he must know his conduct is corrupt’. The judge also cited a precedent which found actions to be ‘akin to an attempt to subvert the course of justice’. So if he could subvert the course of justice to save himself from a long prison term, was he also capable of inventing those damning words that confirmed, in the eyes of trial judges, that Vignes Mourthi knew what he was doing?

First of all, isn’t it interesting that a case of rape, sodomy and corruption from an arrest of 23 September 2001 languishes for years while a capital case arising from an arrest of 20 September 2001 is finished and done with more quickly?

Shadrake pointed out that the police and very likely the Attorney-General’s Chambers knew even as Vignes was on trial, that their chief prosecution witness Rajkumar was himself under investigation for corruption and subverting justice. Surely this must be pertinent to Vignes’ case? Would knowledge of this not have been grounds for impeaching Rajkumar’s credibility and for reasonable doubt in Vignes’ case?

Shadrake asks why there was silence throughout; why Rajkumar’s trial didn’t commence until Vignes had been hanged.

I would ask: Was the silence judged necessary to avoid an embarrassing collapse of the case against Vignes? Was it felt that it was more important not to have it collapse, more important to protect the idea of the death penalty from disrepute, the image of police and prosecutorial infallibility, than the question of true justice to a man?

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Defenders of capital punishment have to assume that this extreme penalty is applied fairly and the process is unimpeachable; that issues such as  presumption of innocence and integrity of evidence are totally above board. That verdicts reached are safe. Anything short of an extremely high standard of probity and equal application would undercut the moral basis for taking a life.

It would be unconscionable if the death penalty is applicable for some and not applicable to others accused of similar crimes.  It would be unconscionable if process is a slapdash construction of toothpicks.

And yet it is. Because so many laws mandate the death penalty, tying the hands of judges, the real decider as to who hangs and who does not is the prosecutor through his ability to pick and choose what charges to level at the accused.  It stinks when the quantum of drugs the accused is charged with handling can go up or down depending on the day of the week or phase of the moon. It is putrid when allegedly key dealers friendly with the upper crust of society can get bail and escape from this island while friendless (alleged) mules get their cases rushed through.

What this book shows is that defenders of capital punishment in Singapore have no basis to make their critical assumptions. If anything, the cases recounted by Shadrake show an unevenness, almost a capriciousness, that should make Singaporeans hang their heads in shame.

Alan Shadrake has done great service to this country through his investigative work. By providing both the comparative overview and the case details that shatter complacent assumptions, he has delineated the baseline which any debate about capital punishment has to proceed from. From today, if you have not read his book, you have no basis to even talk about our (mis)use of the death penalty.

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Post-script: I will update readers as soon as I learn where the book can be obtained.