Monday, June 26, 2006

Have we lost our values?

The recent case of "Trainee doctor entrapped for drug possession" (Straits Times, 9 Jun 2006) and a letter by Thomas Koshy, "free, yet faced with a mountain of debt" tend to show that in our frenzy pursuit for 1st World efficiency, we have lost our values and our appetite to right any wrong or injustice.

In the entrapment case where narcotic officer persistently tempted a trainee doctor to commit the crime of drug possession it seemed that narcotic officers were so anxious to meet their quota that they didn't bother if their means were ethical. They didn't seem bothered if their actions could ruin their targets' lives. They seemed to have forgotten that their first and foremost duty was to prevent loss of lives caused by drug abuse. And they could achieve this by arresting drug suppliers and traffickers and not by putting all drug users, even occasional ones, behind bars.

The letter, "free, yet faced with a mountain of debt" revealed that in Singapore it is possible for an entirely innocent person to be thrown into jail or be saddled with debt if he is unlucky enough. Such perverse justice happens because those people in the know don't have the appetite to upset the world class efficiency by advocating for a change of the status quos. During the 40 years of Singapore history, we do have many knowledgeable persons who could and should amend the criminal process to make it fairer to all but unfortunately nothing has been done.

Trainee doctor entrapped for drug possession
Straits Times, 9 June 2006, by Stephanie Yap

Passing time in an Internet chatroom one night, Adrian Yeo met a man called Joe. Over the following few days, Joe was quite persistent, sending him SMS messages asking if he had drugs, and if he wanted to meet up 'to have fun'.

According to Yeo's mitigation plea submitted in court, he refused the first few times. Eventually, the 26-year-old trainee doctor gave in and met Joe, and another man, Jacob, at a Hotel 81, on April Fools Day this year.

When he arrived at the hotel, he got a nasty surprise. Both men turned out to be undercover Central Narcotics Bureau (CNB) officers, who found 0.16g of methamphetamine on him.

Arrested for drug possession, Yeo was sentenced to eight months in jail on Wednesday. The time in prison requires him to break a $400,000 five-year bond with the Government, and casts a shadow on his medical career.

CNB has often been known to employ the same methods it used to catch Yeo.

Said CNB spokesman Amelia Oh 'CNB is aware that drug offenders use various means to conduct their illegal activities and have come across instances of some of them using the Internet to do so.

'Based on intelligence gathered and feedback received, CNB will monitor channels of information, including chatrooms, to detect and apprehend drug offenders.'

Unlike countries such as the United States and Canada, where evidence gathered through 'excessive' entrapment can be thrown out of court, evidence obtained through any method of entrapment is lawful in Singapore.

Entrapment is often used when the authorities know an individual is committing an offence, but cannot catch him in the act, said retired police detective Lionel de Souza.

'It can be difficult to catch a person red-handed even if you already have information that he is breaking the law.

'In the case of drug possession, you can invite him to meet you and hope he arrives with drugs,' he said.

However, Yeo's lawyer, Mr Kertar Singh, argued that CNB officers overstepped a boundary.

'Yes, the whole exercise is not illegal, but in all fairness what was done by CNB was not appropriate.

'They went into the chatline and lured people in by saying certain things. An innocent, naive person might find himself in this kind of situation, then get caught,' he said.

According to Yeo's mitigation presented in court, he initially refused the undercover officer's requests to meet him. While he admitted to the officer he had drugs, he said they were for his own consumption only.

Yeo finally accepted an invitation to meet Joe and Joe's boyfriend for sex at the Bencoolen Street Hotel 81 on April 1. Joe told Yeo he had some Ecstasy, and asked if Yeo had drugs. Yeo said he would bring some.

While lawyers agree some entrapment is necessary for law enforcement, they say officers should not tempt an otherwise unwilling person to commit a crime.

'I don't think officers should be encouraging people to commit offences. I'm very uncomfortable with that,' said Mr Peter Low, chairman of the Law Society's criminal practice committee.

Mr Subhas Anandan, president of the Association of Criminal Lawyers of Singapore, agreed.

'Of course, a certain degree of entrapment should be allowed, otherwise you can't catch crooks. But they mustn't cross the line.'

CNB did cross the line, in Mr Anandan's opinion, in a 2003 case in which insurance agent Teo Ya Lin was pressed by an undercover CNB officer to obtain an Ecstasy pill for him, promising to buy a big policy from her in return. Teo got him a pill, for which she was sentenced to six years and three months in jail.

'This girl had no intention of selling drugs until she was repeatedly persuaded by the officer. She would not under normal circumstances be a trafficker. The temptation is put forward,' said Mr Anandan.

The veteran defence lawyer, who has personally seen three cases of excessive entrapment in the past year, believes it is a growing problem.

'It has come to a stage where people are talking about it. I can't give figures offhand, but the number is enough to be a little bit scary,' he said.

The Association of Criminal Lawyers plans to put the entrapment issue to the Government in a paper it is preparing, which Mr Anandan estimates will be ready in a month or two.

Mr Low said the Law Society is not currently looking into the issue as it is working on capital punishment reform.

'However, entrapment law reform would be timely,' he said.

Both lawyers point out that entrapment laws were revised in 2001 in Britain, on which Singapore models its legal system.

In an October 2001 landmark case, the House of Lords ruled that it was 'simply not acceptable that the state, through its agents, should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so'.

The case involved Spencer Grant Looseley, who was approached several times by an undercover police officer who tried to get him to sell drugs.

Reform in Singapore may take a while yet, but Mr Anandan suggested in the meantime, judges can indicate in their verdict their dissatisfaction with the current entrapment laws, in the hope of inspiring legislative change.

'Parliament must do something. For the judiciary, their hands are tied as the law is very clear.'

5 Jun 2006
free, yet faced with a mountain of debt
It is high time that the law in Singapore on costs in criminal cases is reviewed

Thomas Koshy

On August 4 last year , when Jagatheesan Krishnasamy met Gunaprakash N Thuraisamy to collect on a loan, little did he know that Central Narcotics Bureau (CNB) officers were watching and waiting to bust Gunaprakash the moment he delivered ecstasy pills to an undercover CNB officer, who had arranged a trap purchase.

Following his arrest, Gunaprakash claimed that Jagatheesan had supplied the drugs. Seemingly on the strength of Gunaprakash's word alone, Jagatheesan was arrested — even though he was not the target of the CNB operation and was never seen with any drugs.

So began Jagatheesan's nightmare, which culminated in his being convicted and sentenced to five years' jail and 10 strokes of the cane for drug trafficking.

On May 26 this year, Jagatheesan's ordeal finally ended when the appeal court quashed his conviction.

He was a free man — but not before having served months of imprisonment and being saddled with debts of tens of thousands of dollars for legal costs.

Should Jagatheesan be left to bear the crushing burden of debt from legal costs?

Although the High Court, after hearing appeals from the Subordinate Courts, has the power to order the prosecution to pay costs to a person who is acquitted, that power is practically never exercised.

The situation is worse in the trial court. The law only allows recovery of costs by a person acquitted after a High Court or District Court trial if the prosecution was "frivolous and vexatious", making the right to costs practically illusory.

The provisions relating to Magistrate's Court cases are even more archaic. The maximum amount that can be recovered upon acquittal is $50.

It is anomalous that the Singapore courts routinely award costs to successful defendants in civil cases, but never to successful defendants in criminal cases.

On the other hand, the law does not place any constraints on the power of the courts to award costs to the prosecution on conviction — no $50 limit or requirement that the defence was "frivolous and vexatious", for example.

In some cases, the courts have awarded costs of tens of thousands of dollars to the prosecution upon conviction of the accused person.

"If the prosecution can get costs on conviction then even more so it is only right that an acquitted person should be entitled to costs. After all, what is sauce for the goose is sauce for the gander," said leading criminal lawyer Subhas Anandan, who acted for Jagatheesan.

The position in Singapore contrasts sharply with that in England. The law in England states that if a person is acquitted, the court should normally make an order of costs in his/her favour unless there are positive reasons for not doing so.

It would further the cause of criminal justice in Singapore if this approach were adopted here.

Currently, many who are charged are reluctant to spend on legal costs to defend themselves when even a win means losing their savings.

The outcome of a trial may be uncertain, but that they have to pay their lawyers is for sure. So, knowing that they have no prospect of recovering their legal costs may very well cause innocent persons to plead guilty.

A person should not have to choose between a wrongful conviction and personal bankruptcy. There is no cogent reason why a person found innocent should have to bear the costs of his defence.

The risk that a person can be wrongly charged cannot be altogether eliminated. The question is who should bear that risk.

Surely, it is more apt for the state to do so. Since more than 95 per cent of cases end up in convictions, it is only in a handful of case that the state would have to bear such costs.

Allowing an acquitted person costs would also signal to the prosecution that putting an innocent person through a trial has cost consequences. This is bound to serve as a healthy check on the prosecution. It is high time that the law in Singapore on costs in criminal cases was reviewed.

Defence lawyers can take the lead by making more eloquent and forceful applications to the court when appropriate. But, ultimately, legislative changes are called for to make the criminal process more fair to serve us all.

After all, the presumption of innocence probably sounds like a hollow promise to a person who walks out of a courtroom with the pyrrhic victory of an acquittal earned at the cost of a mountain of debt and without any compensation for the ordeal he/she has been through.

The writer is a lawyer. This is his personal comment.