Hanging up the hanging rope

In the post But how many on death row?, I put the spotlight on new figures released by the government showing a marked decline in the number of executions. They averaged about five cases a year between 2004 and 2010, both years included, though in 2010, there were no hangings at all. This is in marked contrast to the average of 44 a year between 1994 and 2000.

Anyone who has been following news reports about capital crimes in Singapore would have figured by now that the most likely chief reason for this decline is the “14.99” manoeuvre. This is shorthand for prosecutors preferring to charge someone for trafficking in 14.99 grams of heroin (or equivalent) when he was actually caught with more than that. Fifteen grams will trigger the mandatory death sentence. 14.99 allows a long jail term instead.

We see this once again in a news story in the Straits Times, 12 November 2011 (see thumbnail at right).  Nepalese Yubindra Bahadur Tamang was sentenced to 21 years in jail and 24 strokes of the cane after he pleaded guilty to trafficking in heroin. His role was to transfer heroin smuggled into Singapore in the soles of shoes of three other Nepalese, into soles of new shoes for the next set of couriers — South Koreans — for the subsequent leg of the journey, to Australia. A total of nearly 1.5 kg of heroin was seized, said the Straits Times, but the charge against Yubindra was for trafficking in ‘not less than 14.99 grams’ of heroin, thus sparing him the mandatory death penalty.

24-year-old Yubindra was arrested in August 2009 along with the three South Koreans and three Nepalese. One of the latter, Priyatam Tamang, also 24, had pleaded guilty last month to trafficking in ‘not less than 14.99 grams’ of heroin and received the minimum sentence of 20 years and 15 strokes. It is not clear when the other cases will come to court.

Prosecutorial discretion is a longstanding practice, but the way it is used here causes unease in me. While I stand resolutely against capital punishment — to me it is immoral to take another person’s life — I am also concerned about the sanctity and integrity of the law.  It is one thing for prosecutors to choose which law to use when several laws are relevant to an offence, it is quite another thing to prefer a charge that does not fit the facts. Let’s say, for argument’s sake, that Elvis Choo had kicked Dean Mohamed repeatedly, punched him and stabbed him 17 times. And then took his wallet which contained $23. Would it be alright for the public prosecutor to merely charge Elvis Choo for the theft of the wallet, ignoring the assault and stabbing?

Here we have men trafficking in 1.5 kg of heroin. Parliament intended by passing the law that anyone caught with that amount should hang. Public officials, and most certainly, private citizens, may disagree with it, but is it right to circumvent it?

Once we do that as a matter of course, what is stop us from ignoring the severity of other crimes, such as stealing millions of dollars, or burning down a factory, and then charging the culprits with the equivalent of shoplifting and trespass. At what point will such practice bring the law and the justice system into disrepute?

It does not take great sagacity to guess why prosecutors are preferring the charge of 14.99 grams. The Singapore government does not want the ignominy of being in the cross-hairs of anti-death penalty activists and governments from around the world. As demonstrated in the Julia Bohl case, some governments are very serious about the matter and will not hesitate to punish Singapore through economic measures. Yet, the Singapore government is trapped by its own rhetoric, that only the death penalty stands between us and the drug scourge. Take the mandatory sentence away and we’d be a drug-addled society.

Having pounded the table and telling the rest of the world to stay out of Singapore’s domestic affairs, to repeal the mandatory death penalty would mean eating its own words. Pride does not allow that.

So what does it do? It ducks and takes the cowardly route  — how often pride comes with cowardice! Never mind if the law is brought into disrepute by such arbitrariness. Once again, public decisions in Singapore are made in the interest of saving face regardless of the damage it does to institutions.

Yet, as law professor Michael Hor (National University of Singapore) argued recently,

The significance of the 14.99 charge phenomenon is this – if indeed prosecutorial discretion is exercised in this manner in a significant way, the argument that the mandatory death penalty is necessary crumbles.

— Michael Hor, Singapore’s Death Penalty: The Beginning of the End? — a paper presented at the City University of Hong Kong, 5 November 2011.

And, to extend the logic further, if the prosecution branch can decide not to go for the death penalty, why can’t we trust judges not to impose such a sentence? Why not remove the mandatory sentence and leave it to judges to weigh the facts and circumstances?

If indeed the Public Prosecutor retains this discretion of life and death importance, it is not easy to see why the court ought to be deprived of its say, especially when it can do so in a far more transparent and accountable way.

— ibid.

By letting the decision be made at the prosecutorial level, here again we are distorting the whole process of justice. It’s well and fine that we are moving in the right direction to reduce the number of hangings — I hope it won’t be long before we have a complete moratorium on the death penalty — but this is being achieved in an unwise way.

31 Responses to “Hanging up the hanging rope”


  1. 1 Poker Player 15 November 2011 at 16:53

    “By letting the decision be made at the prosecutorial level, here again we are distorting the whole process of justice. ”

    And short-circuiting it too. Judges are bound by precedence and their decisions can be appealed – both processes are transparent. How many times have we had reports of lawyers of the rich and powerful writing to prosecutors to get charges reduced.

  2. 2 Yujuan 15 November 2011 at 17:23

    The picture depicted is meant to be shocking, isn’t it?
    There is a universal trend towards condemnation of the death penalty as being too barbaric. It’s time Singapore should adopt a bit of this trend, by cutting down on hanging criminals except the hardcore and ruthless ones.
    Maybe it’s the economics that is at play, housing criminals on life imprisonment takes up much scarce resources of our tiny country, in terms of prison spaces, food, clothings,medical treatments and prison personnel.

    The authorities won’t admit it, but it’s obvious, isn’t it.

  3. 3 Sgcynic 15 November 2011 at 20:19

    Makes a mockery of the ‘justice’ system.

  4. 4 The Kangaroo 15 November 2011 at 22:31

    The prosecutor is the judge. Guess who makes the final call through the AGC? Your guess is as good as mine🙂

  5. 5 Desmond Lim 16 November 2011 at 08:38

    Isn’t this similar to S377A? It is there but not “enforced”. You have talked about that making a mockery of the laws of Singapore.

    So it would seem that it is starting to be common that the laws of Singapore are just there to appease others, nothing to do with the actual judicial process at all.

  6. 6 The 16 November 2011 at 08:56

    /// Yujuan 15 November 2011 at 17:23
    Maybe it’s the economics that is at play, housing criminals on life imprisonment takes up much scarce resources of our tiny country, in terms of prison spaces, food, clothings,medical treatments and prison personnel. ///

    Alex is pointing out the FACT that the number of executions has been drastically reduced in recent years. If what you surmise is true, then there should be more executions (not fewer) as dead prisoners don’t need prison space, food, clothing, medical treatments, etc.

  7. 7 Alan Wong 16 November 2011 at 13:04

    The Attorney-General’s Office must have their own reasons for having such discretionary powers exercised at their pleasure. If one happens to be a corrupt prosecutor, wouldn’t it be wonderful to have such laws in existence ?

    Think of the unlimited opportunities it can open up like in Malaysia.

    • 8 yawningbread 16 November 2011 at 17:58

      Good point, non-transparent administrative discretion is a fertile seedbed for corruption. India used to give its bureaucrats enormous discretion when it comes to issuing business licences, import licences, etc. It grew into a monster called the Licence Raj.

  8. 9 george 16 November 2011 at 14:20

    This is one tiger too many that LKY and son cannot dismount without being eaten alive, hence the farcical persecutorial gambit.

    Chee Soon Juan was spot on when he confessed that he found the ageing tyrant’s position ‘pitiable’ in the court case before justice Belinda Ang.

  9. 10 Tan Tai Wei 16 November 2011 at 15:19

    I see the point Alex is making. But as to the unjustness of disproportionate punishment of death for drug-traffickers many have campaigned against, shouldn’t we see this policy of the AG’s as some concession?

    It would seem, if Alex’s observation is correct, that no longer is the hanging of traffickers being done purely for only pragmatic considerations, nevermind how unjust it is. For if only pragmatism matters, then why reduce would-be capital charges to lesser ones, thus reducing the deterrent value? Also, keeping the many, who would otherwise be hanged, for twenty years or so in jail instead runs counter to the pragmatic intention of avoiding prison overcrowding.

    Presumably, the AG’s policy now is to hang only those we would take to be less undeserving but which they, of course, take to be more deserving of the hanging. Which means that they concede that other considerations matter in the prosecuting, hopefully including what our common moral sense take to be justice.

    If the latter, then they might be ready somewhat to be persuaded by us that even those they rule to be more “deserving” do not in real truth deserve to die just for drug trafficking.

  10. 11 Chanel 16 November 2011 at 17:16

    Alex,

    Whilst I agree with you that the “14.99″ manoeuvre demeans the sanctity of our laws, I feel that the death penalty is a suitable punishment for drug trafficking. Try explaining or telling the affected family members of a drug addict that hanging the drug supplier/trafficker is “immoral”. With a relative who was a drug addict, I hold the view that drug taffickers commit a more serious crime than murder.

    To say that a death sentence is ineffective in curbing drug trafficking compared to, say, a 20-year incarceration is ludicrous. Some people may not fear jail time, ut most (if not all) have a great fear of the biggest unknown of mankind, death. Nobody knows for sure what lies beyond death and therein lies the great fear.

    • 12 Anonymous 16 November 2011 at 18:35

      These are two separate issues. Don’t mixed them together. This article is not about the effectiveness or suitability of death sentence, but rather the selective meting of charges as the prosecutor deem fit, bypassing the court and judges.

    • 15 Anonymous 17 November 2011 at 13:49

      Drug trafficking like, or worse than murder? Consider just this.

      Success at the trafficking depends on the buyers’ choice to buy, and whether these develop the problems of addiction depends on so many other factors, eg. failure of counsellors, rehabilitation, continual societal stress and alienation, etc. that cause the continued crave for release by taking more drugs, which involve again some degree of free choice. In short, many others are equally responsible, the trafficker being only one factor in that chain of causes. Indeed, many past addicts testify to their cure through, say, religious conversion and such other rehabilitations (even though they who sold them drugs could have been hanged a long time ago).

      Victims of murder have no choice at all, and the murderer is crucial in the act, whilst other possible factors that influence him aren’t necessary links that effect the act. And the dying is immediate or almost so. And should they not die, there is no murder and no hanging.

  11. 16 The 17 November 2011 at 17:04

    /// Chanel 16 November 2011 at 17:16
    With a relative who was a drug addict, I hold the view that drug taffickers commit a more serious crime than murder. ///

    Your objectivity is clearly jaundiced by the fact that you have a relative who was a drug addict.

    Drug trafficker commit more serious crime than murder? Really? Not all addicts ended up dead. The addict chose to take drug. The murdered victim did not choose to be murdered.

    • 17 Tan Tai Wei 18 November 2011 at 09:11

      Well said, “The”. Nice, pointed summary of my post under “Anonymous” above (I forgot to key in my name.). Great minds think alike!

      “Chanel” might, however, reply to your “Not all addicts end up dead” by saying his point is that the suffering of drug addiction is worse than death.

      But then he would be contradicting his other point that death is effective deterrent to traffickers and not 20 years in jail.

    • 18 Heng Wangxing 29 November 2011 at 22:43

      @The

      I’m not sure @Chanel was trying to be objective. In fact, in this discussion, what’s the point of giving an objective view? I think people contribute more when they are frank with why they think in a certain way, and @Chanel has been frank.

      Not all addicts end up dead, but I think the agony of living with the consequences of drug addiction make many wish they were dead.

      I don’t support the death penalty but I can understand where those who implemented it were coming from.

      I wish the government were brave enough to give it a try and make it discretionary. If it does not work, what’s stopping them from reinstating it?

  12. 19 georgelamb 17 November 2011 at 19:39

    At the heart of the issue is that all are equal before the law. When the law itself is the problem the solution or correct action is to repeal/remove the law, it cannot be left to those who are supposed to enforce the law to decide how best to implement or enforce it. This is dangerous and can lead to a miscarriage of justice. Without putting every alleged offender and all the facts of the case before a judge in a court of law for him to judge, where every bit of evidence is produced, and transparently tested, where is the assurance that justice is done and seen to be done?

    The contention that the AG is trying to be humane by not applying the full force of the law based entirely on its own judgement, is dangerous. It can clearly be abused. And clearly, the chief abuser is the lawmaker himself. The guilt of the law maker is in allowing a flawed law to remain unremedied thereby allowing it to continue to wrought its deleterious effect and harm on society. When you allow a rotten apple to remain in the barrel, is it impossible to avoid infecting the rest in the barrel?

    Law makers have a moral duty from time to time to review and decide if a law, any law, should remain valid or otherwise. Nothing man made is cast in stone or forever infallible.

    It is NOT the duty of the AGC to ‘intercede’ in this manner on ‘behalf’ of the govt to attenuate the impact and damage wrought by a flawed law. As it were, to use its position to ‘temper’ a harsh law with its own initiative or concept of how best to serve the law and discharge its duty. In fact, doing so, as in the present case, it is clear that the motivation and objective was quiet unlikely to be motivated by mercy, it is but in fact a SPINELESS way to avoid doing the right thing of adding to the voices calling for the law to be changed. If the AGC who has intimate knowledge of the way a law is working abdicates this responsibility, who else can?

    • 20 Tan Tai Wei 18 November 2011 at 09:26

      But alas, this government is not wont to admit mistakes. So rather than change the law, they have got the AG (how much autonomy does he have here?) to so adjudicate?

      Anyhow, it’s a lesser evil, if that law isn’t corrected, to encourage the AG to exercise the discretion despite the injustices that might result?

  13. 21 Desiree 18 November 2011 at 08:19

    I made a comment to this effect (albeit much less eloquently than Alex has put it) on an article at publichouse.sg. Another person pointed out that prosecutorial discretion is as much a safeguard of individual rights in the criminal justice system as judicial discretion, and he didn’t seem to understand my point (similar to Prof Hor’s) that the latter is much more transparent than the former, and subject to the right of appeal. He then accused me of being bloodthirsty for wanting to curtail the AGC’s discretion as to which charges to lay.

    The trouble is that this is a matter of largely procedural integrity rather than substantive justice. Many Singaporeans are simply ignorant of why certain branches of government should or should not have the powers they do. Until that’s remedied to the extent that there can be enough public pressure to restore discretion into the hands of the judges rather than a bunch of government-employed lawyers, I think we’ll have to content with small mercies and be grateful for the lives that were spared because of the government’s less-than-noble motivations.

  14. 22 wikigam 18 November 2011 at 11:19

    A full re-structure and re-placement is needed to end the era where fake elite group contiune governance.

  15. 23 Yap Eng Kian 18 November 2011 at 22:25

    Prosecutorial Discretion and Judicial Discretion work hand in hand as legal safeguards within the Justice System. Within Singapore as it stands there is no judicial discretion and thus Prosecutorial discretion stands as the only limited protection available so I find it strange that for someone can be for Judical Discretion but not for Prosecutorial discretion.

    I find it strange to the argument that a prosecution is in no way responsible enough to determine reduce culpability or diminished responsibility before the case goes to trial as these are two very well established principles in law and often the reason a prosecution presses for a lesser charge

    For example lets take the example whereby Prosecutorial Discretion was exercised, but lets postulate a scenario whereby there was no prosecutorial discretion but no Judicial Discretion with a DP and or life sentence in the case at hand

    a. The prosecution faces a choice Prosecute both including the Low IQ person and treat them as equally responsible thus leaving the judge to determine a ‘fair verdict.” Of course being a serious trafficking charge carrying the death penalty he might get death penalty OR Life (death penalty lite ) but it would definitely be a more serious sentence then what he would have gotten under Prosecutorial discretion Is this in any way fair ? And yes I suppose putting a man on trial for his life here is something those against Prosecutorial discretion advocate. The other point to note is that the BALL is round and there can be no guarantee that the verdict might be in favor of the low IQ individual and he thus might end up with the DP. Is that fair ?

    b. I suppose the proposed solution would be since the offense merits the death penalty whether mandatory or NOT is for Both not to be charged seeing the inclinations of individuals here.

    There are well established legal principles for prosecutorial discretion and if the author is arguing against it even though the results are in his liking, he would be well advised to consider what would happen if the principles are carried all the way through to its logical legal end even when the system is in his favor with judicial discretion

    • 24 yawningbread 19 November 2011 at 10:39

      I am not arguing against prosecutorial discretion per se. However, I do ask what are the limits. Can discretion be so wide that it can ignore the fact that what was seized = 1.5 kg? My concern is the “truthfulness” of the charge. It’s a dangerous slope if prosecution is not bound to reveal the facts and act according to the facts. It should be up to the judge to weigh the facts and circumstances.

      Suppose a minister’s son was caught holding his maid prisoner in his home for 45 days and almost starving her to death. But the prosecution decides to ignore the 45 days and charges him for wrongful confinement for one day, and seeks punishment according to Section 342 of the Penal Code, in the form of a fine of up to $3,000. And we say it’s a valid use of prosecutorial discretion.

      Then an ordinary guy is also caught holding his maid prisoner in his home for 43 days and almost starving her to death. The prosecution charges him for 43 days of wrongful confinement, and under Section 344 seeks punishment in the form of three years’ jail (Section 344 applies to wrongful confinement of 10 days or more). And we say once again, it’s a matter of prosecutorial discretion, let’s not quarrel with it.

      Is the institution of the law better off to establish precedents like this?

  16. 25 Yap Eng Kian 18 November 2011 at 22:31

    Desiree,

    Yes judicial discretion is much more transparent but if you remove prosecutorial discretion and leave only discretion, then really the incentive is for the prosecution to go for the maximum in every single case without consideration for reduced culpability or diminished responsibility even when that is obvious to the blind.

    EK

    • 26 Poker Player 19 November 2011 at 16:38

      No, he has to go with the charge that he is likely to win, and that is not always the maximum. And he bases it on the judge’s discretion, not his own.

  17. 27 Yap Eng Kian 19 November 2011 at 13:44

    Dear Alex

    And how does one limit prosecutorial discretion with or without judicial discretion ? Practically speaking prosecutorial discretion happens every single day. As it stands I feel that those arguing or comment on specific legal issues involving specific cases on the death penalty often forget that in trying to set a precedent on one issue, they are well setting precedent’s on other cases dear to their hearts.

    For example Vong or say Cheong who was caught with 2.7kg of pure heroin in a bag and who claims he thought it was gold and now on death row. Yes they both did not have enough evidence for a prosecution on Mr Big , but then what if they had ? What if Cheong or Vong had hard evidence , and the Prosecution chose to reduce charges to under 14.99 , would you or anyone be complaining about the prosecutorial discretion ?

    Prosecutorial discretion can be subject to abuse but as a system overall it works well and we try to tamper with it at our peril for the criminal justice system as a whole. Should we remove discretion because of one hypothetical bad case ? Was disgression exercised correctly and legally in the case at hand ?

    As it is diminished responsibility and culpability and disgression being exercised by the Prosecution before it goes to court is something all on both sides of the death penalty debate can support unless of course one is arguing that the Prosecution should not exercise any judgement on diminished responsibility and culpability AT ALL.

    Murder committed on the same person by two individuals can legally end up with two differing sentences or charges because of judgements of relative responsibility and culpability. The same goes for that 14.99 charge and the apportionment of relative responsibility and culpability.

    Again if as you argue that the institution of the law is better of to decide on charges and weigh on culpability, then it means silly cases of having to throw the book at demonstrably obvious to the blind of diminished responsibility and as I have stated the ball is round in court and the diminished responsibility might not pan out for various reasons.

    Alex I am of the view that in arguing specific cases in order to save one individual, and if that argument goes through and wins the day, you are not seeing the consequences of that action on other cases and its legal ramifications even on cases which the anti death penalty camp champions. As it is I see legal twist and turns and hypocrisy in arguments of the worst sort in order to justify one case.

  18. 28 Tan Tai Wei 19 November 2011 at 22:42

    The AG’s role, with the police, is to initially identify those who deserve prosecution under the law. Discretion is needed for them to decide which law has been infringed, and where the law defines degrees of infringement meriting corresponding different severity of punishment, discretion is also called for to decide how severe the charge should be. Such discretions are of course to be determined by whether they think the evidence available to them would stand in court. So, although they exercise discretion, the limits of that is set by the role they play in law. It is not for them to, say let a murderer go free (That would be abetting the murder, itself a capital offence).

    The seeming wide scope of discretion our AG has exercised in some cases may be ascribed to bad laws so vaguely framed that almost unlimited scope of interpreting is allowed. For instance, what in Singapore constitute public gatherings? Three is already a crowd, and now even one. And so the police has seemingly limitless discretion whom to prosecute for gathering without a permit! For most people outside their homes are by that fact already gathering.

    I know that we have all been sometimes pleasantly surprised to have been let off with only a warning, but these are minor traffic offences, and the likes. So, we don’t accuse the police of not doing their job, even welcome it. They have more important cases to handle, where such discretion cannot be
    tolerated.

    So, “prosecutorial discretion” is really quite limited, indeed stipulated by the nature of our laws.

  19. 29 Tan Tai Wei 19 November 2011 at 23:16

    It follows from my above posting that our AG is wrong in law to exercise his discretion not to charge drug traffickers who “deserve” it the capital charge. Why then are we not inclined to so accuse him? It is due, I think, to our intuitive feeling that our law is wrong to make “trafficking” in that weightage, indeed any weightage of drug a capital offence. We wouldn’t feel the same way if he let, say a rapist off with a mere molestation charge.

  20. 30 Yap Eng Kian 21 November 2011 at 16:42

    Dear Tan,

    Suffice it to say that even for murder, there varying degree’s according to the law, whether premeditated , self defense, etc etc. Of that we can agree. The point is that factually dead is dead, murder is murder, and whether a person is guilty or should be charged under self defense or premeditation is something for the police and prosecution working together and gathering the evidence to decide.

    In that the law is easy, death and grievously bodily harm are quite easily distinguishable and the amount of harm inflicted between the two relatively clearcut.

    As a principle then if crime is weighted and graduated on a scale, so as to ensure that punishment if proportionate to the crime ( clear legal doctrine at hand ). Then there must be some dividing point between each point on the scale. For example its clear cut the distinction between armed robbery with a knife and armed robbery with a firearm in Singapore. Unfortunately most crimes do not fit the clear cut division between life and death.

    If we are to weight and graduate the line between serious drug trafficking and non serious drug trafficking, any point chosen is arbitrary whether 15g 16g 17g etc etc. If you can suggest an easier means to judge the crime or the seriousness of the crime then do suggest it,

    EK

  21. 31 payalebar 4 December 2011 at 23:36

    Reading Choo Han Teck the judge’s written decision in ‘Public Prosecutor V Pausi bin Jefridin and another [2101] SGHC 121′ fills me with anger. Every analytical sentence he made in his judgment paper is loaded with predetermination to get Roslan to be the accomplice of Pausi. I see the framework of this concocted story to be as follows. Since there is no possibility to explain the movements of the Levi bag containing the drugs and the movements of the three others without Pausi so Pausi had to be in the story. He was the post on which they hung the nick name “Boy Gemok” on Roslan. Judge Choo swallowed every improbable twist and turn of this story to transform Boy Gemok into Roslan with the determination of a man in trance. The judge, convinced himself by manipulating verbal evidence beyond human rationality. Significantly the judge even took denial by Norzainy’s of Roslan’s presence as a confirmation of Roslan’s presence in the changing locations on that day when the transaction of drugs and money took place. The Judge wrote “It became apparent to me that Norzainy wanted to give an accurate account of the events on 14 June 2008 without naming Roslan. Hence, he denied Roslan’s participation and cited instead, a mysterious person he called “Boy Gemok” where it would have been Roslan in the version of the others( Nuradaha, Zamri and Pausi).” It looks like Norzainy named an X and the judge substituted Roslan for X. This case proves to me ( I do not know whether it proves to others) the utter incapability of this judge either in ordinary reasoning or most ominously, he has been bought. In our society corruption need not require money to cross palms. Mutualism of the type “you scratch my back and I will scractch yours at some later time,” may be at play here with Judge Choo.


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