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Court of Appeal reserves judgement over drug trafficker on death row, rebukes defence for last-minute applications

SINGAPORE — The execution of a convicted Malaysian drug trafficker continues to hang in the balance, after the Court of Appeal here on Tuesday (March 1) reserved its judgement on an appeal lodged by his lawyers.

Court of Appeal reserves judgement over drug trafficker on death row, rebukes defence for last-minute applications

Undated handout photo shows Nagaenthran Dharmalingam (second from left) with his sister and cousins in Malaysia.

  • Nagaenthran K Dharmalingam, 33, has been on death row since 2010
  • He has filed multiple appeals over the years and asked for clemency from the President, and all have been rejected
  • He was given a last-minute stay of execution in November last year
  • His new lawyer argued on Tuesday for him to be assessed by an independent panel of psychiatrists, as they contend he should not be executed given his alleged intellectual disability
  • The Court of Appeal reserved judgement for an undetermined date

SINGAPORE — The execution of a convicted Malaysian drug trafficker continues to hang in the balance, after the Court of Appeal here on Tuesday (March 1) reserved its judgement on an appeal lodged by his lawyers.

Nagaenthran K Dharmalingam, 33, has been on death row for more than a decade for importing 42.72g of pure heroin into Singapore. The apex court previously issued an eleventh-hour stay of execution in November last year after he tested positive for Covid-19.

On Tuesday, five appellate judges — including Chief Justice Sundaresh Menon — said they would give their decision “soon” on his appeal but did not elaborate on when.

Nagaenthran appeared in court with his new defence counsel, Ms Violet Netto, and previous lawyer M Ravi who is currently on medical leave and cannot practise law.

The hearing lasted about an hour and revolved around a criminal motion for Nagaenthran to be examined by an independent panel of psychiatrists, as well as an appeal against the High Court’s decision to deny him leave for a judicial review.

At the outset, Chief Justice Menon rebuked Ms Netto for being 15 minutes late and called her delay in filing the defence’s latest medical report a “mockery”.

Ms Netto said they had received the report, prepared by psychiatrist Danny Sullivan from Australia, on Sunday. However, the judges only received a physical copy of it at 10.08am on Tuesday when the hearing was about to begin.

She apologised to the court, saying she had had “medical problems” and “certain issues I personally had to be responsible for”.

Chief Justice Menon responded: “This appears to be an abuse of process. It appears to be calculated to delay the resolution of the matter… As an officer of the court, it’s your duty to assist of the prompt discharge of matters. Is there an explanation?”

Ms Netto said she could not specify why she submitted the medical report late but apologised again.

Ms Violet Netto arrives at the Supreme Court on Mar 1, 2022.

ARGUMENTS

The court then heard arguments from Ms Netto, who is asking for Nagaenthran to be granted an “urgent independent psychiatric assessment and up-to-date full neurocognitive test to evaluate his competency to be executed”.

She also asked for enough time to find independent psychiatrists willing and able to undertake this assessment.

She then sought Nagaenthran’s medical and psychiatric assessments, which were performed by the Singapore Prison Service, to be provided on a confidential basis to Nagaenthran and his family.

Ms Netto and Mr Ravi contend that Nagaenthran is intellectually disabled and thus should not be executed in accordance with international human rights law. 

However, Chief Justice Menon reiterated that Singapore is a dualist jurisdiction — that is, international treaties have no effect on domestic law unless legalisation is in force to give effect to them — and that Singapore’s laws provide for the mandatory death penalty in this situation.

The chief justice further noted that three medical reports from psychiatric experts, which the defence is relying on, are based on the “unqualified opinion” of Mr Ravi and Nagaenthran’s brother.

Chief Justice Menon told Ms Netto: "All that this is emanating from, the source of this application, is really the supposition of (Nagaenthran's) brother and Mr Ravi that (Nagaenthran) lacks the intellectual competence to be executed.

“In order to be satisfied that there is a real issue to look at, we need some evidence. And the best evidence, in this case, is the medical records kept by prison authorities. But you have stopped us from looking at these records.”

It was previously reported that Mr Ravi had objected to the disclosure of Nagaenthran’s records of his regular medical and psychiatric assessments in prison.

When the chief justice asked Ms Netto if she had a response, she repeated her submissions on Nagaenthran to be examined by an independent panel of psychiatrists to provide a “conjoined opinion”, as recommended by Dr Sullivan.

“In order to be satisfied that there is a real issue to look at, we need some evidence. And the best evidence, in this case, is the medical records kept by prison authorities. But you have stopped us from looking at these records.”
Chief Justice Sundaresh Menon

Deputy Public Prosecutor (DPP) Wong Woon Kwong then argued that Tuesday's hearing was a “continuation of a very cynical attempt to abuse the process of court”, with “various last-minute applications made” and “no reliable evidence” from the defence to substantiate their claims that Nagaenthran’s mental state has deteriorated to the point that he is not competent for execution.

“It’s highly material that even till today, my learned friend seeks to suppress objective medical records of the appellant from this court, for this court to ascertain the true nature of the appellant’s medical status,” the prosecutor said.

DPP Wong also argued that the defence should not be allowed to file a criminal review as it was a further abuse of process. The court had granted the defence leave to file it in November, but Mr Ravi did not follow up on it then.

Justice Andrew Phang told Ms Netto that there should be no “drip-feeding” of such last-minute applications. "It's an abuse of court, I’ll be very direct with you," he said.

While Justice Phang noted that she was not involved in the case then, he added that she could not use her medical issues as an "excuse for not being diligent and not even knowing about the application not begin with".

Towards the end of the hearing, Chief Justice Menon asked DPP Wong what the prosecution’s position was on an inmate whose mental capacity had deteriorated prior to execution but who had culpability at the time of the offence.

The prosecutor responded that such inmates should seek clemency from the President instead of going down the legal route. He noted that the law provides for jail time to be imposed in lieu of caning for those found unfit for caning, but there is no such statute for death penalty cases.

Nagaenthran’s clemency petition to President Halimah Yacob has already been rejected.

BACKGROUND

Nagaenthran was sentenced to the death penalty in November 2010. He had been caught in April 2009 while entering Singapore from Malaysia at Woodlands Checkpoint with a bundle of drugs strapped to his thigh.

His appeal against his conviction and sentence was dismissed by the apex court in July 2011.

In February 2015, he filed a re-sentencing application to set aside the death sentence imposed on him and substitute it with life imprisonment, following amendments to the Misuse of Drugs Act.

Nagaenthran also lodged a second appeal for a judicial review into the public prosecutor's decision not to issue him a certificate of substantive assistance for helping the Central Narcotics Bureau disrupt drug trafficking activities.

However, the High Court dismissed both applications in 2017 after finding that he was not “suffering from an abnormality of mind at the time of the offence”. The decision was upheld by the Court of Appeal in 2019.

The Ministry of Home Affairs previously clarified that both courts had also held that his mental responsibility for his offence was not substantially impaired.

He had known that it was unlawful for him to be transporting the drugs, and he had concealed the drugs to avoid them being found. He was found to have done this with the intention of paying off some of his debts.

The Court of Appeal earlier found that this was “the working of a criminal mind” who had weighed the risks and benefits associated with the crime.

Anyone convicted of trafficking more than 15g of pure heroin in Singapore faces the death penalty.

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court court of appeal Nagaenthran K Dharmalingam drug trafficking appeal

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