An innocent man may soon be hanged under mere circumstantial evidence
By Jolovan Wham
29 year old Prabagaran A/L Srivijayan has been condemned to death. The only thing that will prevent the execution is if the President pardons him, or if an appeal, which has been made to the court and is under consideration, actually succeeds.
Caught at the Checkpoint
Prabagaran was arrested by Immigration and Checkpoints Officers in Woodlands on April 2012 for attempting to bring in 22.24 grams of heroin. The drugs were found in a black bundle inside the centre arm-rest console next to the driver’s seat.
Under Singapore’s laws against drug trafficking, if any unlicensed controlled drug is found in a vehicle, it is presumed to be in possession of the owner of the car, or of the person who was driving the vehicle. If the person is unable to give a satisfactory and convincing account that he was not aware that the drugs were in his car, he is guilty of drug trafficking.
Prabagaran has consistently denied that he was aware of the drugs in the vehicle. He borrowed the car he was driving through a friend’s contact because he was afraid that the motorcycle he usually rode on to commute to work would be re-possessed by the shop in Singapore that he bought from. Prabagaran was told through his younger brother that the reason the motorcycle shop wanted to do this was because he did not make good on his payment installments.
To avoid trouble with the motorbike shop, Prabagaran picked up a car belonging to his friend’s (Balu) contact (Nathan) at about 4:30 in the morning of 12th April 2012. At first Prabagaran had asked Balu if he could borrow his motorcycle but because the road tax for Balu’s motorcycle had expired, Balu contacted his friend Nathan to lend him a car instead.
After buying breakfast at MacDonald’s in which he left the car unlocked and unattended for a short period of time, he made his way to the Woodlands checkpoint where he was arrested.
The Court’s Decision
The case was heard in the High court and Prabagaran was sentenced to death. An appeal was filed at the Court of Appeal and the same conviction was upheld. In his grounds of decision, Justice Choo Han Teck said
I find the story of the accused implausible to have even created any doubt in my mind as to his
knowledge of the drugs in his possession. The reason for borrowing ‘Nathan’s’ car (through ‘Balu’) was strange and illogical. The fear that his motorcycle would be repossessed does not justify leaving it in ‘Nathan’s’ house and taking ‘Nathan’s’ car to work instead. No explanation was given as to how that helps against the repossession of the motorcycle by the shop. There was no elaboration as to how long he intended to keep ‘Nathan’s’ car or how long he intended to leave his motorcycle at ‘Nathan’s’ house.
Justice Choo was also not convinced that Prabagaran needed to contact two people just to borrow a vehicle to enter Singapore from Malaysia. He said there was no evidence that both Balu and Nathan believed that the motorcycle would be re-possessed by the shop should Prabagaran ride it into Singapore.
Although Prabagaran testified that he had left the car unlocked and unattended when he went into McDonalds to get his breakfast, Justice Choo did not find any evidence that someone else had planted the drugs in the car during that time. He suggested that it would have been “utterly senseless” for someone else to plant the drugs inside the car.
The problem with the High court and the Court of Appeal’s judgment is that Prabagaran’s conviction is based entirely on his testimony and the accounts of government officials involved in the case. All the other parties and witnesses mentioned by Prabagaran were not produced in court, nor were their statements taken by the authorities.
According to Prabagaran’s lawyers, Balu’s and Nathan’s testimonies would have a material bearing on Prabagaran’s defence. Their testimonies would have been necessary to corroborate Prabagaran’s account.
Even though Prabagaran gave information about both Balu and Nathan, including their contact details, the authorities did not follow up on these leads. Prabagaran even identified both Balu and Nathan from photographs provided by the authorities.
This is not the first time that the judiciary has sentenced individuals to death based on circumstantial evidence that is not corroborated by important witnesses.
Malaysian Cheong Chun Yin was initially sentenced to death by the courts even though he cooperated with the Central Narcotics Bureau (CNB) officers and gave them the name, physical description and phone numbers of the man who could have been responsible for handing the drugs to him without his knowledge, a man who had gone by the name of Lau De. However, the CNB did not make any effort to investigate.
According to the presiding Judge Choo Han Teck, “It was immaterial that the CNB did not make adequate efforts to trace Lau De or check on his cell-phones. The absence of any trace of Lau De was not taken as evidence in favour of or against either accused.”
Accused drug trafficker Vignes Mourthi was executed based on an unreliable witness statement
Another convicted drug trafficker, Vignes Mourthi was hanged based on highly questionable evidence. The court obtained a note produced by the prosecution’s key witness Sgt Rajkumar. The note was apparently a record of a conversation that had taken place between Mourthi and Sgt Rajkumar, which stated that Mourthi knew that the packages contained heroin. It was hand written, undated and unsigned.
However, while giving testimony during the trial as the prosecution’s key witness, Sgt Rajkumar was facing investigations for rape, sodomy and bribery by the authorities. In view of this fact, the credibility and integrity of Sgt Rajkumar was (and still is) highly questionable.
Judiciary’s rationale is deeply troubling
Coming back to Prabagaran’s case, the Court of Appeal presided over by 3 judges decided that it was unnecessary for the Central Narcotics Bureau (CNB) to conduct more investigations on the leads which Prabagaran had provided. The two individuals Nathan and Balu could have made use of Prabagaran by hiding the drugs in the car. But the court did not think it was necessary to pursue this line of inquiry. It said
The CNB has to assess the value and the viability of making any particular investigation in each case. It has to make judgment calls on the usefulness of any information given to it.
It has to consider its resources and its statutory powers of investigation. For instance, it cannot be expected to traverse the globe to investigate merely because an accused person mentions the names of ten persons in ten different countries together with their contact numbers.
It is evident that the court of three judges has not shown sufficient regard for Prabagaran’s life in arriving at this position; CNB has also not given its rationale for not choosing to pursue such an important lead. The court’s justification of their inaction is deeply troubling.
Prabagaran is a Malaysian and the offence took place during a journey from Johor to Singapore. In fact, a large number of Singapore’s drug trafficking cases involve both these countries. There was no need for CNB officers to “traverse the globe”, as the court had remarked disparagingly, to uncover the facts of this case. It was certainly not difficult or resource intensive for CNB officers to pursue leads which Prabagaran had provided information. Even if it was, someone’s life is at stake. Are the lives of impoverished migrants worth so little to the court?
Even if a court finds an accused’s statement to be unbelievable, it still has a responsibility to ensure all possible leads are pursued to get to the bottom of the matter. Its judgments should not leave a shred of doubt in anyone’s minds about the guilt of the accused.
The death penalty is an irreversible punishment. A life taken cannot be given back. Singapore’s courts cannot be injudicious and heedless towards accused persons on death row, as it has been in Prabagaran’s case and other cases before it.
Unfortunately, Prabagaran will become another tragic statistic among the dozens of working class migrants who are sentenced to death for drug trafficking, an offence which disproportionately affects those afflicted by economic hardship, social marginalisation and difficult family circumstances.