Two drug offenders could now face the gallows after the apex court quashed unrelated High Court rulings that found they were drug couriers rather than traffickers.
Under a change in the Singapore law last year, judges were given the discretion to sentence a courier to life imprisonment rather than the gallows, while a trafficker faces the mandatory death penalty.
However, in a key ruling, the Court of Appeal said the cases of Chum Tat Suan, 65, and Abdul Kahar Othman, 57, must be sent back to the High Court to decide if they were couriers or not, after making clear that the meaning of courier is limited only to transporting, sending or delivering the drug.
It does not extend to those whose involvement goes beyond these boundaries.
The court, comprising Judge of Appeal Chao Hick Tin and Justices Woo Bih Li and Tay Yong Kwang, said that if the convicted offender was found to have intended to sell the contraband drugs, then "he is evidently not merely a courier".
The cases of Chum and Abdul Kahar flagged potential problems arising from the changes to the law. Both were given the benefit of the doubt by the same High Court judge, meaning they could be spared the gallows under the updated laws.
However, the public prosecutors applied to the apex court for clarification on three points of law.
The court was unanimous on two issues, firstly in holding that a convicted offender has to show he was only a courier and that a person who intended to sell the drug cannot be considered a courier.
On a third issue about admitting new evidence at the sentencing stage to help decide the courier status, Justice Chao held that, broadly speaking, "new evidence may, under the right conditions, be adduced and heard at any stage of proceedings, including at the sentencing stage".
But Justices Woo and Tay expressed reservation, saying: "Any suggestion that an accused person will be allowed to adduce new evidence at the sentencing stage, because he believed he had a valid reason to deliberately withhold such evidence and even though this is subject to conditions, should be avoided."
The High Court had underlined the difficulty in the three-phase procedure in such cases. The first phase establishes whether a defendant is a trafficker.
If the answer is no, a second determines whether he is a courier. If he is, the court must decide whether prosecutors have certified that the defendant has cooperated with the Central Narcotics Board or that he has suffered any mental illness which makes him less responsible for his actions.
The apex court held that the High Court judge was wrong to treat Abdul Kahar as a courier, disagreeing with the finding that repacking and collecting payments were "ancillary acts" not excluded from the definition of courier.
The Court of Appeal ruled in Chum's case that the High Court judge was incorrect to hold that it was "unsafe" to study evidence from the first phase of the trial to decide if he was a courier.
It also said that evidence about Chum's mental state, raised by his lawyer, Mr Manoj Nandwani Prakash, at the appeals court, should have been given in the original hearing.
However, as this was the first time the relevant section of the law was being clarified, it made an exception and it will be heard when Chum's case is dealt with again by the High Court.
This article was first published on Nov 29, 2014.
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