Nagaenthran a/l K Dharmalingam v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 14 September 2017
• Neutral Citation: [2017] SGHC 222
• Court: High Court (Singapore)
• Docket Number: Criminal Motion No 16 of 2015
• Published date: 04 June 2019
• Year: 2017
• Hearing Date: 11 April 2017,02 June 2017
• Plaintiff Counsel: Eugene Singarajah Thuraisingam (Eugene Thuraisingam LLP)
• Defendant Counsel: Lau Wing Yum and Tan Wee Hao (Attorney-General's Chambers)
• Citation: [2017] SGHC 222

Chan Seng Onn J:Introduction

This judgment deals with Criminal Motion No 16 of 2015, which is an application by Nagaenthran a/l K Dharmalingam (“the applicant”) to be re-sentenced to life imprisonment under s 33B(1)(b) read with s 33B(3) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”), having previously been convicted and sentenced to death (“re-sentencing application”).

This re-sentencing application was heard over a single day on 11 April 2017. The parties each led evidence from their respective psychiatric experts: the applicant led evidence from Dr Ung Eng Khean (“Dr Ung”), a psychiatrist from Adam Road Medical Centre; the respondent led evidence from Dr Koh Wun Wu Kenneth Gerald (“Dr Koh”), a senior consultant from the Department of General and Forensic Psychiatry at the Institute of Mental Health (“IMH”). As will be evident from my analysis below, the conflicting expert opinions of Dr Ung and Dr Koh on the mental condition of the applicant at the time of the offence constitute the very crux of the dispute in these proceedings.

At the close of proceedings, I reserved judgment.

Procedural history

The applicant had been charged under s 7 of the MDA for importing not less than 42.72g of diamorphine on 22 April 2009. On 22 November 2010, I found the applicant guilty following a trial, and sentenced him to death as mandated by s 33 read with the Second Schedule to the MDA: Public Prosecutor v Nagaenthran a/l K Dharmalingam[2011] 2 SLR 830 (“the Trial Judgment”). He appealed against his conviction. The appeal was dismissed by the Court of Appeal on 27 July 2011: Nagaenthran a/l K Dharmalingam v Public Prosecutor[2011] 4 SLR 1156 (“the CA Decision”).

The applicant’s execution was stayed in the midst of the government’s review of the mandatory death penalty regarding drug offences. On 14 November 2012, the Singapore Parliament passed the Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012) (“the Amendment Act”). The Amendment Act introduced s 33B of the MDA, which confers upon the court the discretion to sentence an offender convicted of a capital drug charge to life imprisonment if:his involvement in the offence was merely as a courier as described under s 33B(2)(a) and he has been issued a certificate of substantive assistance by the Public Prosecutor within the meaning of s 33B(2)(b) (s 33B(1)(a) read with s 33B(2) of the MDA) (“the substantive assistance provision”); orhis involvement in the offence was merely as a courier as described under s 33B(3)(a) and he was suffering from an abnormality of mind within the meaning of s 33B(3)(b) (s 33B(1)(b) read with s 33B(3) of the MDA) (“the abnormality of mind provision”).Section 27(6) of the Amendment Act allows persons who had been convicted and sentenced to death under the MDA prior to the amendments, and had their appeals dismissed, to be re-sentenced in accordance with s 33B.

On 10 December 2014, the Prosecution informed the court and the then-counsel for the applicant that the Public Prosecutor would not be issuing a certificate of substantive assistance to the applicant. Despite this, the applicant filed the present application on 24 February 2015 to seek to be re-sentenced to life imprisonment under the substantive assistance provision.

The applicant also commenced various other applications. On 27 March 2015, the applicant commenced Originating Summons No 272 of 2015, seeking judicial review of the Public Prosecutor’s decision not to grant the certificate (“the judicial review application”). The proceedings for the judicial review application have been adjourned pending the outcome of the present re-sentencing application. On 8 January 2016, the applicant filed Criminal Motion No 2 of 2016 seeking, inter alia, a declaration that s 33B of the MDA is unconstitutional and contrary to the rule of law (“the constitutional challenge”). The Court of Appeal dismissed the constitutional challenge on 2 December 2016: Prabagaran a/l Srivijayan v Public Prosecutor and other matters[2017] 1 SLR 173.

During the hearing for the re-sentencing application on 11 April 2017, the parties agreed to proceed on the basis that the applicant was seeking to be re-sentenced to life imprisonment under the abnormality of mind provision. The applicant has since, with my leave, amended the Notice of Motion on 7 August 2017 to update the grounds of the re-sentencing application to reflect this position.

Background facts

The facts surrounding the offence have previously been compendiously summarised by the Court of Appeal when the Trial Judgment went on appeal. I thus gratefully adopt the facts as restated in the CA Decision and set out the portions that are pertinent to the present analysis as follows (the CA Decision at [5]–[15]):5The [applicant] testified that he met a Chinese man by the name of King on 21 April 2009, and asked King for a loan of RM500 in order to pay for his father’s heart operation on 23 April 2009 in Kuala Lumpur. King agreed. The next day, 22 April 2009, the [applicant] met King at a food shop in Johor Bahru at about 6.00pm. King handed the [applicant] what the [applicant] believed to be a packet of food together with a transparent plastic packet of curry, telling the [applicant] to deliver those items to a person in Woodlands, Singapore. King gave the [applicant] a telephone SIM card, and asked the [applicant] to put the said card into his phone and activate it upon entering Singapore. King also told the [applicant] to wait in front of a designated “7-Eleven” convenience store, and to give the items to a person in a “dark blue Camry”. After the delivery, the [applicant] was to return to Malaysia. King told the [applicant] that he had to complete the delivery of the items before he would lend the RM500 to the [applicant].6Just as the [applicant] was about to leave with the said items, King invited him into his (King’s) car, where he told the [applicant] that he had changed his mind and that he needed the [applicant] to deliver something else instead. King handed the [applicant a packet wrapped in newspaper (“the Bundle”)] … King said that the Bundle contained “company product” or “company spares”. King told the [applicant] that the Bundle had to be tied to the [applicant’s] thigh for the delivery. According to the [applicant], he initially resisted King’s request, but King slapped and punched him, threatening that if he refused to deliver the Bundle, King would “finish” and “kill” Shalini (the [applicant’s] girlfriend). King made the [applicant] remove one side of his trousers and raise his leg such that it rested on the dashboard of King’s car. Thereafter, King tied the Bundle around the [applicant’s] left inner thigh with yellow tape. King again instructed the [applicant] to go to Singapore and put the SIM card into his phone, and wait in front of the designated “7-Eleven” convenience store. As before, King informed the [applicant] that a “dark blue Camry” would come, that the person in the said Camry would be wearing blue-coloured spectacles, and that the [applicant] was to hand the Bundle to that person.7King then sent the [applicant] to the [applicant’s] apartment to prepare for the delivery trip. When the [applicant] alighted from King’s car, the [applicant] telephoned Kumarsen and told Kumarsen that he had to take some money to Singapore. Kumarsen agreed to give him a ride. The [applicant] returned to his room in the apartment and put on a pair of trousers which belonged to one Tamilselvam (Kumarsen’s nephew, who was staying in the [applicant’s] room). Because Tamilselvam was much bigger sized than the [applicant], the [applicant] had to use a belt to secure the fit. According to the [applicant], he wore Tamilselvam’s trousers because King had told him to wear bigger trousers as it was important that what was in the Bundle was not damaged. Although Shalini, Tamilselvam and one Ramesh were in the apartment at that time, the [applicant] testified that he did not tell any of them what King had done or said to him.8Kumarsen rode his motorcycle, with the [applicant] riding pillion, to the Woodlands Immigration Checkpoint. At about 7.45pm, the [applicant] and Kumarsen were stopped at the Woodlands Immigration Checkpoint by the passport screening officer and taken to an office. In the office, the [applicant] called Shalini. The [applicant] and Kumarsen were thereafter brought to different rooms by various officers of the Central Narcotics Bureau (“CNB”).9Staff Sergeant Syed Anis Bin Syed Omar Alsree (“SSgt Anis”), a CNB officer, commenced the strip search of the [applicant] … During the strip search, the [applicant] was asked by SSgt Anis to remove his trousers, which he did. At this point, SSgt Anis saw the Bundle secured to the [applicant’s] left inner thigh with yellow tape over the red pair of boxer briefs that he was wearing. Later, Sergeant Muhd Zaid Bin Adam and Sergeant Shahrulnizam s/o Abdullah (“Sgt Shahrulnizam”) entered the room and SSgt Anis left the room. Sgt Shahrulnizam spoke to the [applicant] in Tamil, handcuffed him, and then proceeded to remove the Bundle from the [applicant’s] thigh. While doing so, part of the Bundle’s newspaper wrapping tore, enabling Sgt Shahrulnizam to see that the Bundle contained a transparent plastic bag with white granular substance in it. The white granular substance was subsequently analysed and found to contain not less than 42.72g of heroin.

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12At about 12.10am on 23 April 2009, Sgt Shahrulnizam handed the seized exhibits to Sergeant Vasanthakumar Pillai s/o M M Iruthaya Nathen Pillai (“Sgt Vasanthakumar”) for the purpose of recording statements from the [applicant] and Kumarsen … Sgt Vasanthakumar recorded Kumarsen’s statement first, and later recorded the [applicant’s] statement between 1.20am and 1.35am. The material portions of the [applicant’s] statement recorded by Sgt Vasanthakumar read:Q1)What is...