The Public Prosecutor wants Singapore's highest court to rule whether a convicted drug trafficker has to prove he was only a courier in order to be spared the gallows.
It has sought the Court of Appeal's help in the wake of an October judgment by Justice Choo Han Teck which flagged potential problems in drug trafficking trials arising from changes to the law which place the death penalty for traffickers at a judge's discretion.
Justice Choo gave two convicted traffickers the benefit of the doubt and ruled they were couriers, meaning they could be spared the gallows under the updated laws.
A spokesman for the Attorney-General's Chambers had said at the time it would study the judgment before deciding on the course of action.
When delivering his decision, Justice Choo raised the issues of whether the accused in the unrelated drug trafficking cases were couriers.
Under laws that came into effect on Jan 1 this year, convicted traffickers who are judged to be primarily couriers can be sentenced to life imprisonment instead of death, if they are certified by the prosecution to have helped the Central Narcotics Bureau substantially or have a mental illness that makes them less responsible for their actions.
Justice Choo decided that Chum Tat Suan, 65, and Abdul Kahar Othman, 57, both convicted of trafficking in heroin in August, were couriers and could be spared the gallows.
However, their story is not over yet, as they will now have to give statements to the prosecution with as much information as they have.
Only then, if the prosecution decides to certify that the accused has cooperated in a substantial way, will the court sentence him either to life imprisonment and caning or death.
Justice Choo had underlined difficulties in the three-phase procedure to establish all this. After an accused person is convicted of drug trafficking, 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, then the question of mental illness or how much he cooperates with the prosecution kicks in.
Justice Choo had noted, among other things, that if evidence relating to whether the accused was a courier is allowed to be produced at the main trial, the court can decide on conviction and sentence together. But this alternative was not without problems, he explained.
Neither the courts nor Parliament has expressly stated the boundaries of "transporting, sending or delivering drugs" clearly so that the accused knows what exactly he has committed.
The Public Prosecutor, who is also the Attorney-General, has now also tabled two other issues.
First, whether a drug trafficker facing a capital charge who intended to sell the drugs can also qualify as a courier.
Second, whether the High Court has to take into account evidence used to convict a trafficker in a trial at the second phase hearing to decide if he is a courier or not.
A Court of Appeal hearing is due next month and the move will impact how the High Court will deal with convicted capital drug offenders who seek to be spared execution by pleading they are couriers.
The Public Prosecutor is also seeking to quash the findings that Chum and Abdul Kahar were couriers so as to have a fresh High Court decision based on the Court of Appeal's rulings.
Lawyer Manoj Nandwani, who is defending Chum, said the Court of Appeal outcome "will set down guidelines in terms of procedure and bring clarity for practitioners".
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