Appeal against mandatory S'pore death penalty fails

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Saturday, 15 May 2010

Kai Portmann
DPA

Singapore's highest court on Friday rejected the appeal of a convicted Malaysian drug trafficker against his mandatory death sentence and said the punishment was constitutional.

The convict's remaining hopes now lie in a clemency plea before the city-state's president.

Yong Vui Kong, 22, was convicted of smuggling about 47 grams of heroin in 2007 and was given the death penalty, which in Singapore is mandatory for all crimes involving more than 15 grams of the drug.

Yong's lawyer, M Ravi, challenged the constitutionality of the ruling, saying it was "cruel and inhuman" and not in line with customary international law, but the Court of Appeal dismissed his arguments.

The Singapore constitution did not imply any "prohibition of inhuman punishment," said Chief Justice Chan Sek Keong, adding that there was also no "customary international law prohibiting the mandatory death penalty as inhuman."

"We dismiss the appeal," the justice said.

The case had attracted attention from groups opposed to the death penalty like Amnesty International, which started campaigns to save Yong's life.

Yong, who did not challenge his conviction, was sentenced to death in November and was set to be executed in December.

His lawyer, however, obtained a rare stay of execution days before the punishment was to be carried out.

Given the chance to dispute the legitimacy of the sentence, Ravi argued in a court hearing in March that the mandatory death sentence for drug crimes was unconstitutional because it gave the judges no chance for taking into account mitigating factors like youth.

In addition, the sentence infringed the right of equal protection guaranteed by Singapore's constitution, the lawyer said.

"When you sentence someone for 15 grams of drugs and someone for 100 kilograms, that's a difference, and discretion should come in," Ravi argued.

The prosecution, on the other hand, said the mandatory death penalty was constitutional because it was in line with laws passed by the legislature.

"The Parliament sets the parameters within which the court gives sentences," Attorney General Walter Woon said, arguing that the harsh punishment was needed to protect Singapore from the harm of drugs.

It was "state practices that determine international law, not the other way round," he added.

The Court of Appeal on Friday accepted the prosecution's arguments, saying the court was not permitted to interfere in legislation.

"The Court of Appeal considered that, under Singapore law as it stood, further challenges in court to the constitutionality of the mandatory death penalty had been foreclosed by its decision in this appeal," the court said in his ruling.

After the verdict by the city-state's highest court, Yong now has the option to file a plea for clemency with President SR Nathan. It would represent a second such attempt after Nathan rejected Yong's first petition for clemency in December.

But this time, the call for mercy would be even more desperate, Ravi said, because comments on Yong's case made by Singapore's law minister this week affected any coming decision.

Referring to Yong's case, Minister K Shanmugam last Sunday justified Singapore's mandatory death penalty for drug traffickers, saying it would send a wrong signal if the Malaysian were spared the sentence because of his youth.

"We [would be] sending a signal to all drug barons out there: Just make sure to choose a victim who is young or a mother of a young child and use them as the people to carry the drugs into Singapore," local media quoted the minister as saying.

The mandatory death sentence has been critical in Singapore's effective fight against drugs, Shanmugam said, while charging that most other countries already had lost the fight.

Yong's lawyer on Friday denounced Shanmugam's remarks, adding, "The whole clemency process is poisoned."

http://www.earthtimes.org/articles/show/323618,appeal-against-mandatory-singapore-death-penalty-fails--feature.html

Read also the statement by International Harm Reduction Association: Death penalty serves no demonstrable criminal justice purpose

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Comments (8)

Sat 15 May 2010 11:12 AM | Robox

From this article:

1. "The Court of Appeal on Friday accepted the prosecution's arguments, saying the court was not permitted to interfere in legislation."

From another article:

2. "CJ Chan found that to accept the Indian standard of a ‘fair, just and reasonable procedure’ would require judicial interpretation of the scope of ‘reasonable’ – thus potentially leading to a conflict with Parliament."

Walter Woon had entered a truly fraudulent argument when he argued that the courts had no right to change laws. And the Court of Appeal has accepted it, thereby further defrauding the justice system.

What then are the "judge-made laws" in the common law system that we have inherited if not judicial rulings that become the new legal standard to replace one that has been found by a judge to be inadequate?

In fact K Shanmugam and the rest of the government have implicit knowledge of this feature of the justice system. When the Delhi High Court decriminalized gay sex last July, this was K Shanmugam's response:

http://www.yoursdp.org/index.php/news/singapore/2533-singapore-not-swayed-by-india-gay-sex-ruling-minister

[Start]

He said however that Singapore's courts were free to interpret the law as the Indian court had done..."We won't change the law, but how that is interpreted is up to the courts," the Straits Times quoted the minister as saying."

[End]

Indeed, in 1991 right here in Singapore, a judge had ruled that, despite pre-repeal S 377 of the Penal Code also criminalizing 'carnal acts agaisnt the course of nature' for heterosexuals as well, oral sex was legal so long as it preceded vaginal intercourse.

That is an example of judge-made law and became the new standard in proesecuting heterosexuals charged under S 377; judge-made law is the new law.

Going forward from 1991, when the tudungs-in-schools issue erupted and a group of individuals were determined to challenge the government on the constitutionality of its decision not to allow tudungs in schools, Goh Chok Tong's response was that he would accept - as if it were a choice - whatever the courts decided in that case.

These are just three examples that I happen to know of; I'm sure that those in the legal profession have many more.

This is the check and balance system that is meant to be in place but is being applied only selectively, and only for the purpose of promoting the PAP government's pet causes.

There is a human life at stake here. A young life. Why are those fascist pigs playing politics with a human life?

Sat 15 May 2010 1:42 PM | AnnA

All I can say in disappointment is that :

I WISH THAT GOD WILL BRING DOWN WHATEVER PAP IS PROUD OF NOW, SHOWING GOD'S WRATH BY ENFORCING A NATURAL DISASTER, ESPECIALLY THE MARINA BAY SANDS. I WISH IR WILL COLLAPSE SO THAT IT WILL BE THE BIGGEST BLOW FOR PAP. AND BECAUSE OF THAT, ALL CORRUPTED FIGURES WILL BE REVEALED. AND THEN COMES JUDGMENT DAY FOR THEM(PAP) WITH NO FORGIVENESS WITNESS BY THE NATION. THE WAY THEY SHOW NO MERCY TO VUI KONG!!!

By

Helpless Singapore Citizen.

Sat 15 May 2010 11:11 PM | quantum

Why didn't they work in teams so that each person carry less than 15 grams ?

Sun 16 May 2010 8:59 AM | Robox

This is an addendum to my first post.

At his address to the legal fraternity at the Legal New Year 2009, Kangaroo Shanmugan, in an obvious reference to the SDP and civil disobedience, added yet another item in the PAP's ever-growing list of fraudulent claims. He said that Parliament was the ONLY way to have laws changed; the extra-parliamentary route to law change - the courts - that the SDP was attempting with civil disobedience was in his unschooled use of the word "extra-legal", a term usually taken to refer to academic disciplines like legal or political philosophy that inform legislation and the legislative process, but which he defrauded to imply "illegality".

Look how he switched sides on the same question of which else of our public institutions are empowered to make law besides Parliament just a short half a year later after the decriminalization of gay sex by the Delhi High Court.

It only reinforces what I said in my post the PAP makes use of the courts to promote its pet causes, the SDP's harassment being a cornerstone of that policy; conversely the kangaroo courts are delighted to compromise its proper functioning and allow itself to be that instrument for promoting the PAP's pet causes.

Sun 16 May 2010 9:51 AM | Robox

http://www.paraphernalia.com/pnews_view.php?id=00000583&o=100

Dinesh Bhatia, son of High Court Judge Amarjeet Singh, received 12 months in 2005 after a drug bust on a group described as 'high society'; the original sentence was later reduced to four months upon appeal.

Dinesh’s lawyer?

Why, none other than Kangaroo Shanmugam!

The High Court judge at that time, VK Rajah who was also one of the three judges presiding over Vui Kong's appeal; I understand he is related to Indranee Rajah, possibly even her father or an uncle. In that case, he ruled, “the district judge erred by not tailoring the sentence to fit the offender and failed to attach adequate weight and merit to all the relevant mitigating factors”.

While I don't know the legal terminology for it - probably something in Latin - the courts practise something which in political science is called "formal equality" or "the equality of treatment"; it's a committment to treating *like cases as like*.

Elite Dinesh Bhatia was convicted for drug consumption. Thus, to uphold the committment to formal equality, a ruling in his case cannot be used to compare to a case of drug trafficking. But only provided the statement in the ruling that is being referenced is applicable only to the *points of law* that are pertinent to the *facts of the case* of drug consumption.

However, a ruling in what may seem initially like an "unlike case" can in fact be used as precedent if it is actually a reference to the *conduct of the court*. That's because the conduct of the court/s are meant to be the same in EVERY case; the conduct of the court in ALL cases are like cases.

V Kangaroo Rajah's ruling in elite Dinesh Bhatia's case that I quoted quoted above is an example of a ruling on the *conduct of the court*, thus making it applicable in Vui Kong's case.

Thus if this in V Kangaroo Rajah's ruling ought to have been the conduct of the court in Dinesh Bhatia's case:

[Quote]

“the district judge erred by not tailoring the sentence to fit the offender and failed to attach adequate weight and merit to all the relevant mitigating factors”

[Endquote]

why isn't it equally the conduct of the court/s that presided in Vui Kong's case?

This is the discrimination under the law - because the judge's ruling (or judge-made laws) IS the law - that Vui Kong has experienced because the law imposing the death penalty is constructed to ensure that outcome of not 'tailoring the punishment to fit the offender'.

It's UNCONSTITUTIONAL no matter what Kangaroo Keong says just so that he can avoid a conflict with his political masters in the PAP government!

(I hope to add more to this point of the unconstitutionality of the MDP later.)

(Note: While he might already be doing it, I hope that someone will alert Ravi to these and other arguments/information that are being made online just for his consideration.)

This leads me to another point worth pondering.

I don't know what Ravi actually submitted in court regarding the Caribbean cases. But when Kangaroo Keong ruled that "the rulings of certain Caribbean jurisdictions against the mandatory death penalty were concerned with murder cases, and as such had no direct application to the case at hand", I would like to question if those rulings that Ravi referenced in his appeal were about *the points of law pertinent to the facts of the case*.

Or did the Caribbean rulings refer to the conduct of the court in the administration of any law that imposes the Mandatory Death Penalty?

Sun 16 May 2010 1:21 PM | Tan Tai Wei

How little regard for human life the young Minister seems to have, "poiaoning" the case for mercy and clemency just on at best a plausible suspicion as to how "drug barons" would react should mercy be shown.

While he so surmises, a human life he would leave to die in fact. (When people hang, they really die, even as he conjectures!)

Is he, like others in the Cabinet, so drunk on PAP-pragmatism?

Tue 18 May 2010 11:47 AM | maxchew - Blood will be on their hands!

The day 20 yr-old Yong Vui Kong is hanged as he invariably and eventually, will be......his blood will appear on the hands of CJ Chan and his 2 'accomplices'.
YVK's blood will also appear on Prez Nathan's hands for sheepishly complying with the pragmatic (idiotic?) final decision of the PAP cabinet to hang him.
Rest in peace Yong Vui Kong, as all the men who ordered your execution will not....