The Court of Appeal has thrown out two final appeals by a Malaysian drug trafficker against his death sentence for drug trafficking on Monday (27 May), ending a series of court battles spanning a period of nearly 10 years.
The final recourse for 30-year-old Nagaenthran a/l K Dharmalingam would have been to petition to the President for clemency, according to his lawyer Mr Eugene Thuraisingam.
The two appeals were against the decisions of the trial judge, Justice Chan Seng Onn, to dismiss Nagaenthran’s applications for re-sentencing due to a mental impairment arising from abnormality of mind, and for judicial review of the Public Prosecutor’s decision not to grant Nagaenthran a certificate of substantive assistance (referred to as the “PP’s non-certification decision” in general).
Both appeals were heard together before a five-judge Court of Appeal in January this year, and judgment for both appeals were reserved.
Delivering the judgment of the court, Chief Justice Sundaresh Menon held that Nagaenthran’s inconsistencies in his evidence and account of events, given to the psychiatrists and psychologists examining him, had undermined his mental impairment defence.
Also hearing the appeals were Judges of Appeal Andrew Phang and Judith Prakash, Senior Judge Chao Hick Tin, and Justice Belinda Ang, who ruled that Nagaenthran was not suffering from any substantial mental impairment which would have enabled him to be sentenced to life imprisonment.
With regards to the judicial review appeal, CJ Menon explained that a clause in the Misuse of Drugs Act, which supposedly oust the courts of its jurisdiction to judicially review the PP’s non-certification decision save for grounds of bad faith and malice, is actually a statutory immunity clause that only prevents the PP from being sued for civil liability unless there was bad faith or malice on the PP’s part.
In so doing, the Court of Appeal disagreed with Justice Chan below and another conflicting High Court decision, and as such, the available grounds of judicial review against PP’s non-certification decision are not limited, ruled the apex court once and for all.
Nevertheless, the court found that the only two grounds pursued on appeal – that the PP failed to take into account relevant considerations, and that the non-certification decision was made in the absence of a precedent fact, were not made out on the facts of Nagaenthran’s case.
Source: theonlinecitizen.com, Staff, May 27, 2019
The absurdity of another Malaysian in Singapore being sentenced to death
The Singapore Court of Appeal has just dismissed the appeal against the death sentence of Malaysian D Nagaenthran.
Nagaenthran suffers from mental illness or intellectual disability, according to his own medical expert, Dr Ken Ung.
This could have saved him from the gallows if he had been able to convince the court that he suffers from such mental impairment.
Unfortunately, the court chose instead to rely on reports from the Institute of Mental Health psychiatrists, which indicated that Nagaenthran's mental condition does not sufficiently qualify as mental impairment.
Nevertheless, the prosecution and the High Court accepted that he suffers from a mild intellectual disabilty.
A very significant point which was not raised in Nagaenthran's appeal was that the expert evidence of the state’s third medical expert, Dr Koh Wun Wu, was made without further independent medical examination of Nagaenthran.
It was made instead with the objective of "making observations" on Ung's conclusions.
This practice, known as 'poking holes' in the defence's report, is an unacceptable practice in criminal trials. To me, this renders the Court of Appeal's decision as being one in breach of the right to a fair trial under international law.
Furthermore, it is widely accepted that the execution of mentally ill or persons with intellectual disabilities is a clear violation of international standards.
Both international and domestic laws in many countries around the world prohibit the execution of people with mental illness or intellectual disabilities.
Several international organisations have spoken and campaigned actively in this regard.
As I am in the process of drafting a memorandum to the Malaysian government, where I will set out in detail as to why it should file a complaint to the International Court of Justice in view of the aforesaid breaches of international law, I sadly recall his distraught mother and brother's pleas and how I was consoling them not to lose hope.
I will include several other breaches of the right to a fair trial that Nagaenthran has suffered. This may be one way to save Nagaenthran.
The Singapore Anti-Death Penalty Campaign (SADPC) will also kick off its international campaign to save Nagaenthran with immediate effect.
Source:
malaysiakini.com, M Ravi, May 27, 2019. M Ravi is an international human rights lawyer.
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but by the punishments that the good have inflicted." -- Oscar Wilde
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