Lying in court about his role in a capital drug case could possibly cost the accused the chance to escape the noose under a recent discretionary sentencing regime.
And this, according to Senior Judge Kan Ting Chiu, is an "inordinately severe penalty for lying".
The High Court judge raised this concern after convicting Ghanaian Obeng Comfort - who was defended by assigned lawyers Ram Goswami and Cheng Kim Kuan - of importing 2.8kg of methamphetamine as a courier. He jailed her for life after the prosecution certified she had substantively helped the Central Narcotics Bureau.
The judge said there were aspects of the law which give the court the discretion to impose a life sentence in certain capital drug cases "that should be looked at".
He was referring to S$33(b) of the Misuse of Drugs Act which was introduced in 2013. Instead of the mandatory death sentence, it allows the court to impose a life sentence if the accused is found to be merely a courier and satisfies one of two other conditions.
These conditions are either that the prosecution certifies that the accused has substantively helped the authorities in disrupting drug trafficking activities, or if the accused has a mental abnormality.
Justice Kan, however, said that an accused facing a capital drug charge is entitled to argue during trial that he knew nothing about the drugs found with him.
But if the accused, after being found guilty, then decides to "come clean" during sentencing, his credibility would have been undermined by his earlier denial.
The price for withholding the truth until after conviction is that "first, he may not be able to persuade the court of its discretion not to impose the death penalty and second, his appeal against conviction may be jeopardised", wrote Justice Kan in his judgment grounds released this month.
But if the offender is not allowed to admit his involvement post-conviction, he will "not even have the opportunity to persuade the court not to impose the death penalty on him", the judge went on.
"Effectively, for having lied or withheld the truth before his conviction, the penalty is forfeiture of the possibility of avoiding the capital sentence. That is an inordinately severe penalty for lying."
Justice Kan also pointed out that in practice, the prosecution may prove the accused's restricted involvement with the drugs despite his claim of having no knowledge.
"In such a situation, should the court disregard the evidence that is already before it and which has been accepted, and not exercise its discretion with regard to the sentence?" He raised similar concerns with having the accused prove that he had a mental abnormality, since he could well have already been sent for psychiatric examination prior to trial.
Since any finding on his mental capacity would be disclosed at trial by the prosecution, "is there any reason to require the person to prove it again" to ensure the court can have the discretion to impose life imprisonment, the judge asked.
He explained that the fact of restricted involvement or impaired mental condition is the critical consideration, not the source of the evidence. "A practical and fair interpretation should be adopted because lives may hang on it," the judge said. "The provisions should be interpreted purposively, with the words in question construed as 'when the court is satisfied'."
This article was first published on Dec 23, 2015.
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