Singapore escapes a wrongful execution

I think this should be fairly clear to anyone who’s been following me and my work by now, but I’m including this disclosure right at the top of this issue: I’ve been an anti-death penalty activist for the past 10 years, and it’s from this position that I’m writing about Gobi Avedian’s case and the death penalty today.

Also, please bear with me on this one — I’m going into some detail because I want to be as clear as I can after diving into the Court of Appeal’s written judgment today. (Sorry, I don’t have a link to the judgment ‘cos I haven’t seen it online!)

On Monday morning, 32-year-old Gobi Avedian broke down in tears after Singapore’s Court of Appeal set aside his death sentence — the very sentence that three of the five judges who spared him today had handed down to him two years ago.

The five judges — Chief Justice Sundaresh Menon, Justice Judith Prakash, Justice Tay Yong Kwang, Justice Andrew Phang, and Justice Steven Chong — also reinstated the original sentence of 15 years’ imprisonment and 10 strokes of the cane handed to him by the High Court in 2017, backdated to the date of his remand. Taking into consideration the amount of time already served as well as remission (the reduction of a sentence, usually for good behaviour), Gobi’s lawyer M Ravi says that he’ll be able to return to his family in Malaysia in about four years’ time.

It’s a great result, and relief, for Gobi, Ravi, and Gobi’s family. But it’s still frightening to think about what could have been: before M Ravi stepped in and filed the criminal motion that eventually led the Court of Appeal to review its earlier decision, Gobi had already exhausted his legal avenues. Even his clemency appeal to the president had been rejected. If not for today’s decision, he would be on death row, at imminent risk of execution.

News articles have framed the issue as a drug mule “escaping” the gallows (see here, here, here, and here). Gobi might have had a lucky “escape” from the noose, but we can’t ignore the fact that the Singapore state came close to wrongfully taking someone’s life.

Delivering “chocolate drugs”

Gobi, a Malaysian citizen, was working in Singapore as a security guard in 2014 when he approached a friend in search of ways to earn more money to pay for his daughter’s operation, scheduled for January 2015. This friend introduced him to a man named Vinod, who told him that he could earn money delivering drugs from Malaysia to Singapore. These weren’t dangerous drugs, Vinod had claimed, assuring Gobi that they were drugs mixed with chocolate to be consumed at discos, and were “not serious”.

Gobi refused at first; even though he’d been told that the penalty would only be “just a fine or a small punishment” if he got caught, he didn’t want any trouble. But as the date of the operation drew nearer, Gobi got more and more desperate. He then asked another friend, Jega, if he thought it “would be a problem” if he took up Vinod’s offer. Jega, who frequented discos but didn’t know Vinod, didn’t seem to think it would be a big deal, so Gobi went back to Vinod.

He was paid RM500 (approx. S$163.70) per delivery, which he did eight or nine times until he got caught. He was initially charged with importing 40.22g of heroin.

The presumption clauses and how Gobi ended up on death row

Singapore’s Misuse of Drugs Act contains presumption clauses. In Gobi’s case, the presumption clauses in Section 18 came into play:

The presumption in S18(1) wasn’t an issue, since it was accepted by both the prosecution and the defence that Gobi had drugs in his possession.

What was most relevant to his case was the presumption in S18(2), which says that “[any] person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug.”

During his trial at the High Court in 2017, Justice Lee Seiu Kin found that Gobi had successfully rebutted that presumption. The judge observed that his evidence had been consistent and that he’d been a “truthful witness”. He was thus acquitted of the capital charge, but convicted on an amended charge of attempting to import a Class C controlled drug. That was when he was sentenced to 15 years’ imprisonment and 10 strokes of the cane.

The prosecution appealed the High Court’s decision to acquit Gobi of the capital charge. The Court of Appeal agreed with the prosecution that Gobi had in fact failed to rebut the S18(2) presumption clause. Gobi was thus convicted of the capital charge, landing him on death row.

New developments

In 2019, the Court of Appeal acquitted Adili Chibuike Ejike, a Nigerian national who’d travelled to Singapore with a suitcase that turned out to have 1,961g of methamphetamine in it. In his defence, Adili claimed that he hadn’t known there was methamphetamine hidden in the case.

In Adili’s appeal, the court questioned the prosecution’s invoking of the S18(1) presumption, since their case had been built on the basis that while Adili didn’t know that the drugs were in his possession, he’d actually been wilfully blind (i.e. that he suspected the truth but did not investigate further on purpose). The presumption clause, the court said, could only apply to “actual knowledge”, and not to an argument about wilful blindness. If the prosecution wanted to argue that Adili had been wilfully blind, they would have to prove their case, not rely on the presumption clause.

But what does all this mean for Gobi, who was, by that time, already on death row with his legal avenues exhausted?

If no lawyer had taken up Gobi’s case at this point, Adili’s fortunate acquittal would have had no effect on him, and he would have continued sitting on death row awaiting execution. But in came human rights lawyer M Ravi, who picked up Gobi’s case and filed a criminal motion in February 2020 seeking a review of the Court of Appeal’s earlier decision. He pointed to the development in case law stemming from Adili’s case, where the court had made clear that the concepts of actual knowledge and wilful blindness were “separate and distinct”.

A good result

In their submissions, both Ravi (representing Gobi) and the prosecution agreed that, given the Court of Appeal’s position on distinguishing between actual knowledge and wilful blindness concerning S18(1), this line of reasoning should also be extended to S18(2).

The Court of Appeal agreed with this. They also found that the prosecution’s case against Gobi during the trial had been built upon an argument of wilful blindness: that Gobi should not have believed Vinod and Jega — not that he did not believe them, which makes a difference! — when they said that the drugs were no big deal and wouldn’t be a problem. The judges pointed out that the prosecution had, during cross-examination, failed to put to Gobi that he did not believe what he’d been told about the drugs — a problematic omission, because “it should have been put to the Applicant so as to give him the opportunity to address it before it was advanced as a submission by the Prosecution.”

Given this, and considering what was stated in Adili’s case, the prosecution shouldn’t have been allowed to invoke the presumption clause in S18(2) in the first place.

The court also found that the prosecution’s case changed between the trial and the appeal, in a way that was “ultimately prejudicial” to Gobi. During the trial, the prosecution had relied on an argument of wilful blindness. But during the appeal, they’d argued that Gobi had actual knowledge of the nature of the drugs in his possession.

In reviewing this, the Court of Appeal found that their previous decision “can no longer stand because it is now clear that the Applicant was faced at the trial not with a case of actual knowledge, but with one of wilful blindness. As a result, he was never squarely confronted with the case that he did not in fact believe what he had been told by Vinod and Jega, and so could not have responded to such a case.”

[The judges noted that Gobi’s defence counsel did not raise this issue during his 2018 appeal, but said that since “the line between actual knowledge and wilful blindness was not clearly drawn” before Adili’s case in 2019, it was “therefore understandable that the parties (and the court) would not have been sufficient alert” to this matter.]

And anyway, the judges also found that the prosecution had not managed to prove a case of wilful blindness against Gobi. Which brings us to Monday’s happy result.

(A celebratory photo taken with Ravi and friends outside the court. Photo taken by Terry Xu.)

The “robustness of our legal framework”?

In their written judgment, the Court of Appeal referred to this as an “exceptional case”.

They wrote: “It is a reflection of the robustness of our legal framework that the court may in limited circumstances take into account subsequent changes in the legal position to reassess previously made decisions, even if they were correct at the time they were made.”

It’s certainly a relief that things went well this time, but I have a hard time accepting this as an example of the rightness of the system. Just like how Parti Liyani’s case was won on the back of a dedicated pro bono lawyer and a team of supporters and could easily have ended very differently, so too could Gobi’s case.

As previously mentioned, Gobi had actually already exhausted all his options. If M Ravi hadn’t stepped in, he wouldn’t have had a lawyer to file this criminal motion for him, the Court of Appeal would never have been prompted to review its decision, and Gobi would likely have been hanged without anyone even realising that a miscarriage of justice had taken place.

Ravi’s work can’t be understated here. It’s not easy to be a lawyer stepping in at such a late stage. The law governing review applications for appellate courts to relook earlier decisions is stringent, requiring a high threshold to be met.

In comments he made to The Online Citizen outside of the Supreme Court, Ravi described this mechanism as “oppressive” — a characterisation which has drawn the ire of the Attorney-General’s Chambers.

This is the relevant part of the Criminal Procedure Code:

As the Court of Appeal pointed out in their written judgment, for them to review the case under S394J, it isn’t even enough if there’s a “real possibility” that their earlier decision was wrong — it needs to be a “powerful probability”.

(It breaks my brain that this is the standard that gets applied to death penalty cases, which are literally life or death.)

Since Kho Jabing’s case in 2016, when the pro bono lawyers who came forward to make applications on his behalf were accused of abusing court process, it has become even more difficult for lawyers. Now, it’s not just a matter of having the application dismissed; as the Court of Appeal said in the dismissal of Syed Suhail bin Syed Zin’s criminal motion last week, defence counsels deemed to have invoked the review process “lightly” could be sanctioned.

Most death row inmates don’t have the money to pay a lawyer their full fee, and often need to be taken up as pro bono cases, which means that lawyers won’t make any money out of this. Yet these cases are time-consuming and stressful. And one could run the risk of being punished for abusing court process if found to be using the review process too lightly. How many lawyers would touch something like this, all for a shot at maybe getting a stranger off death row?

So how?

There was good news for Gobi today. It’s a relief for his wife, too, even though she’s in Malaysia and unable to cross the border to see him because of the pandemic.

As anti-death penalty activists, we’ve learned to take each victory as it comes — there are far too few of them as it is. But it’s hard to really feel joy over this, knowing how close Singapore came to making a huge mistake and taking a life.

Which is why I’ve spent today going through the written judgment and going into such detail with this special issue. I hope that Gobi’s story sheds more light on how the death penalty and criminal justice system works (or doesn’t work) in Singapore, and prompts more people to think about the dangers of a capital punishment regime and whether this is really the sort of “justice” that we want in Singapore.

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