A high Court judge on Thursday raised potential problems in the new procedure for drug trafficking trials as a result of changes to the law that make the death penalty discretionary in certain circumstances.
Justice Choo Han Teck flagged the issues while delivering his decision on whether two men, involved in unrelated drug trafficking cases, were drug couriers.
Under laws that came into effect on Jan 1, the death penalty is no longer mandatory for those convicted of drug trafficking cases in two circumstances.
Life sentences can be imposed on those certified by the prosecution to have helped the Central Narcotics Bureau substantially and those whose mental illness makes them less responsible for their actions. To qualify for a reprieve, the traffickers must prove that they were only couriers - that is, their roles were restricted to transporting, sending or delivering drugs.
In the current two cases, Justice Choo decided that Chum Tat Suan, 65, and Abdul Kahar Othman, 57, separately convicted of trafficking in heroin in August, were couriers and therefore, have a fighting chance of escaping the gallows.
However, he highlighted the "significant difficulty" arising from the new three-phase procedure. After an accused is convicted, another hearing would be conducted to determine whether he was a courier. At this second phase, if the court decides he is not a courier, the mandatory death penalty will be imposed.
If the court decides he is a courier, the prosecution will record his statement for him to give as much information as he can.
If the prosecution decides to certify that the accused has given "substantive assistance", the court can either sentence him to life imprisonment and caning or death.
Justice Choo noted that if evidence relating to whether the accused was a courier is introduced after conviction, it was possible the new evidence could differ from the judge's original findings or even cast doubts on the accused's guilt.
However, if he did not allow new evidence, this might prejudice the accused, making it impossible for him to prove he was just a courier.
The alternative, said the judge, was to make it a rule that evidence be produced at a trial, so that the court can decide on conviction and sentence together.
But this puts the accused in a difficult spot, because in order to make the claim that he was just a courier, he must first admit he was trafficking drugs.
For instance, if an accused's defence was that he did not know he had drugs on him, once convicted, it would be difficult for him to argue that he was a courier.
In the current cases, parties did not introduce new evidence. Justice Choo said that he gave the two accused the benefit of the doubt in deciding that they were couriers. This is so until the courts or Parliament have expressed the boundaries of "transporting, sending or delivering drugs" clearly so that an accused knows what he is accused of committing.
This, even though the judge found that Abdul Kahar had items used to repack drugs and $69,000 were found in his flat. His jobless elderly mother had $100,000 in the bank.
An Attorney-General Chambers' spokesman said: "As parties were not given an opportunity to submit on many of the matters raised in the court's decisions in the two cases, we will study the grounds of decisions carefully before deciding on the appropriate course of action."
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