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Sunday February 12, 2006

Three-to-one he dies ... or not

Took Leng How
Last month, the Singapore Court of Appeal upheld the murder conviction of Malaysian Took Leng How. All that stands between him and the gallows is a president’s pardon or the hope that his father’s petition in Penang will succeed in persuading the authorities to commute the death sentence to life imprisonment. Since the Court of Appeal’s decision was not unanimous, BEN NADARAJAN examines the issues of reasonable doubt and majority decisions. 

JUST when it looked like vegetable packer Took Leng How will take a straight walk to the noose, a three-judge Court of Appeal threw up a surprise. 

In 30 previous appeals which Singapore’s highest court heard from 1990 till now, all the guilty verdicts passed by the trial judge were upheld, and all by unanimous decisions. 

But in Took’s case, Justice Kan Ting Chiu said the prosecution had failed to prove conclusively that Took, 24, had smothered eight-year-old Huang Na to death on Oct 10, 2004. 

In fact, Justice Kan, who has sat on the High Court Bench for the past 15 years, felt that the worst Took was guilty of was that of voluntarily causing hurt. 

That only carries a maximum punishment of a one-year jail term and a S$1,000 (about RM2,300) fine, a far cry from the mandatory death penalty which the other two judges, Chief Justice Yong Pung How and Judge of Appeal Chao Hick Tin, thought he deserved. 

Since Singapore’s judicial system works on a majority decision, Justice Kan’s views had no bearing on the eventual verdict and Took, kept his place on death row. 

There is still one last recourse for Took: the President’s pardon. 

His lawyer, Subhas Anandan, felt Justice Kan’s judgment will go some way in persuading the President to grant clemency, which has been given only six times since independence. 

The two-to-one decision has raised questions about whether the executioner’s hand should be stayed.  

Reasonable doubt 

Senior Counsel K.S. Rajah certainly thinks so, arguing that even one dissenting judge is enough cause to raise a “reasonable doubt” whether the accused was really guilty. 

“We’re talking about a person’s life here. Surely we should be 100% absolutely certain he was the one before we take his life,” said the former judicial commissioner. 

The last time the Court of Appeal was split in a capital case was 10 years ago. 

Then, a Myanmarese was acquitted by the trial judge of drug trafficking. The prosecution appealed and the Appeal Court set him free with a two-to-one majority. 

Dr Myint Soe, who represented the Myanmar national then, said the issue was more clear-cut as the trial judge had already acquitted his client and two other appellate judges also reached the same verdict. “The trial judge’s verdict should hold more weight as he looks at all the facts and has a chance to judge for himself the demeanour and credibility of the witnesses.” 

In criminal cases, the guilt of an accused person hinges on this simply-worded, yet extremely complex, term known as “reasonable doubt”. 

It means that the State has to prove that there is no doubt that the person they charged did the deed.  

The Singapore system 

In a 1996 appeal case of a tutor who molested his student, CJ Yong made the point that while the prosecution had to prove its case beyond reasonable doubt, it cannot prove its case “beyond all doubts”. 

Otherwise, any fanciful suggestion can be cooked up by defence lawyers to get their clients off the hook. 

“In all cases, there will always remain a minutiae of doubt,” the CJ said. ‘The question in all cases is whether such doubts are real or reasonable, or whether they are merely fanciful.” 

In Took’s case, Justice Kan noted that there were no marks or bruises on Huang Na’s nose, which raised doubts as to whether Took smothered her. The defence had raised the possibility that the girl had died from fits, which the prosecution was not able to counter convincingly enough for the judge. 

So should his reservations be enough to save Took? 

Several states in the United States which still have capital punishment require its 12-man jury to reach a unanimous verdict before an accused can be put to death. One dissenting juror would lead to a re-trial, with a new set of jurors. 

Singapore did away with the jury system for capital cases in 1969, replacing them with two-judge hearings. Both judges must see eye to eye to convict someone of a capital offence, to reduce the risk of hanging the wrong guy. 

It also reflects the gravity of capital cases, which carries the ultimate punishment the legal system can mete out. 

But when the late CJ, Wee Chong Jin, stepped down and CJ Yong took over in 1990, the two-judge system was replaced with just one presiding trial judge. 

This was to free up more judges to hear other cases, reducing the waiting time for a case to be heard by half. 

The safety catch: the CJ proposed that the State provide them with two defence lawyers instead of one. 

When the change to the Criminal Procedure Code was put to Parliament in 1992, Law Minister S. Jayakumar acknowledged that having two judges try a capital case was “more comforting” than just a single judge as they shared the responsibility and also combined their knowledge of the law. 

But he said that CJ Yong’s suggestion was sound as there was an “ugly and unacceptable risk” that an innocent person may spend years in prison before his trial even begins as there was a serious backlog of unheard cases. 

That was over a decade ago when it took four years for a trial to begin. Now, capital cases are usually ready to go within a year. 

Another safety catch: Unlike those convicted of non-capital offences, a person sentenced to death has an automatic right to appeal to a higher court. He has to inform the court if he is waiving his right.  

Mathematical solution 

Briton John Martin, who killed a tourist and dismembered the corpse, and Adrian Lim, who murdered two children in a religious sacrifice, both chose not to appeal and were hanged. Since there was no Round Two, there is no question of their guilt. 

National University of Singapore law lecturer Michael Hor offers a mathematical solution to the conundrum. 

He gave this scenario: If the trial judge acquits and the Court of Appeal is split with two judges against acquittal and one for acquittal, that means that the verdict, if one goes by simple mathematics, is tied 2-2. 

Assoc Prof Hor said: ‘In such a case, then the capital conviction should not stand as there are equal number of judges for and against the conviction.’ 

Which means really that Took should hang since the score is really three-to-one, if you include the trial judge. 

Former lawyer Prem Singh, who wrote in to The Straits Times Forum page on this issue, felt that allowing a solo dissenting voice to prevail over the majority decision “makes a mockery of our majority rule”. 

Prem, who was a lawyer for 12 years before retiring in 2001, said: “The majority rule is fair. The fact that there is a dissenting decision on a murder sentence should not cloud the real issue that guilt, or whatever the judgment may be, was determined by a majority decision.” 

One suggestion is to go with the majority view but give the judges the discretion to impose life imprisonment instead of the death penalty in cases which are deemed appropriate. 

Singapore’s laws do not allow that and one drawback is: Do we really want to put the burden of judging whether a man should live or die on the shoulders of a few individuals, however experienced and respected? 

Singapore has never shied away from defending the death penalty, seeing it as a necessary aspect of upholding law and order. 

But Took’s case has raised the question: How sure should the State be about a man’s guilt before taking his life? 

If the answer is 100%, then Took deserves a re-trial, hang the time and the cost. 

It is, after all, a matter of life and death. – ANN/The Sunday Times 


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