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Abstracts of essays; news; announcements; short takes.
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- Yawning Bread Sampler
- This blog carries summary abstracts of Yawning Bread essays, with space for comments.
Here too are other tidbits that are too short for the main Yawning Bread site.
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30 comments:
Choo Han Teck J said in the CA's judgment:
"The presumption of knowledge was therefore not rebutted, and all that remained was to determine whether the act of importing the drugs was proved. However, a statement in the trial judge’s grounds requires clarification. At para 48, the trial judge stated, in what appeared to us as an emphasis to his rejection of the first appellant’s evidence:
"I found he had wilfully turned a blind eye on the contents of the capsules because he was tempted by the US$2000, which was a large sum to him. … Consequently, even if he may not have actual knowledge that he was carrying diamorphine, his ignorance did not exculpate him … "
That passage creates an impression that there is a legal duty not to “turn a blind eye”. It would thus create a wrong assumption that there was some sort of positive legal duty, meaning that the first appellant was bound in law to inspect and determine what he was carrying, and that consequentially, if he did not do so, he would be found liable on account of that failure or omission. The Act does not prescribe any such duty. All that the Act does (under s 18), is to provide the presumptions of possession and knowledge, and thus the duty of rebutting the presumptions lay with the accused. There could be various reasons why a court might not believe the accused person, or find that he had not rebutted the presumptions. The fact that he made no attempt to check what he was carrying could be one such reason. Whether the court would believe a denial of knowledge of the articles in the accused person’s possession (made with or without explanation or reasons) would depend on the circumstances of the individual case. The trial judge then referred to Yeo Choon Huat v PP [1998] 1 SLR 217 at [22]:
[I]gnorance is a defence only when there is no reason for suspicion and no right and opportunity of examination …
....
It will be gleaned from these cases that the true principle is that, ultimately, a failure to inspect may strongly disincline a court from believing an “absence of knowledge” defence. Therefore, to say, as in this case, that the first appellant thought it was chocolates was another way of saying he did not know that he was carrying drugs. Given the evidence, including the evidence that the first appellant did not inspect the articles when he could have done so (the turning of the blind eye), the court was entitled to find that the presumption had not been rebutted.
....
Presumption of innocence as the English understand it, which we do not inherit (because we have the Evidence Act), is not well served by the shifting of the burden of proof.
To say that there is no presumption of innoncence per se is quite another thing altogether.
singaporeclassics
I would not have convicted him of trafficking simply because the evidence is too shaky.
But, no one in their right mind would try to smuggle drugs into Singapore. Getting caught means almost certain conviction and death by hanging. So perhaps he should have been judged innocent by reason of insanity.
I feel very sorry for him and all those caught by this law who have or are about to suffer the death penalty.
'Diamorphine can be taken intravenously
Dr Harold Shipman used diamorphine to murder his victims. Diamorphine, or heroin, is used in medicine as a very effective and powerful painkiller. However, it is highly addictive and is fatal in large doses.
What is diamorphine?
Diamorphine is an opiate, a type of drug extracted from the unripe seed capsules of the Asian poppy. It belongs to a group of drugs called the narcotic analgesics.
These drugs have been used medically and non-medically for centuries.
Diamorphine resembles morphine, another opiate, in its actions and uses, but produces better pain relief with less severe side effects when given intravenously.
The drug relieves the severe pain that can be caused by injury, surgery, heart attack or chronic diseases such as cancer.
It is also used to relieve distress in acute heart failure and occasionally as a cough suppressant when other remedies have been ineffective.
It can come in tablet or liquid form. For severe pain a dose of 5-10mg intravenously is recommended.'-BBC
Having described what the drug Tochi was carrying, Tochi---
'was in transit' in Singapore.
Even tho' 'in transit', Singapore will arrest drug carriers/trafficers.
Tochi was offerred by a "Smith" that Tochi would be paid US$2,000/- for these pills. I am sure that Tochi had a reasonable man's thinking that he, Tochi, knew that for US$2,000/- the pills he carried were not Afican mule's poop.
Sadly, I have to vote 'Guilty'.
Sadly, a black man hovering around the Singapore Airport's transit lounge is easy 'racial profiling'. Racial Profiling happens all the time, and mainly more so in Singapore's Airport. This is a black man, which makes him an easy target. I do not think the Singapore police would have planted the heroin capsules in Tochi's bag. Just because the drug trafficker/carrier is carrying dope'in transit', in Singapore, he may think he is legally safe.
Not so.
Tochi?- Guilty.
Tochi is guilty. Here is another question? What if it had been 2 arab men, waiting to board an SIA plane?, and they are waiting in transit in the Singapore Airport.
The Singapore police check their bags and find 'liquid substance',and not capsules of heroin? Or the Singapore Police find nothing on these 2 Arab men, but would they let them aboard an SIA flight?
Something to ponder about.
I read the Tochi article. We the jurors, are to believe that Tochi is innocent? OK. Let's roll out the facts.
1. Tochi met 'Smith' in India.
2. Smith says "here's a bag of sweets, n I want u, Tochi, to deliver to a dude in Singapore called Marshall'.
3. Tochi-(not knowing that they are herion capsules), ???,duh...I mean Tochi is from a poor village in Africa... says "OK Smith".
4. Tochi arrives at Singapore In'tl Airport, he is in the transi lounge, waiting, and somewhere, in the scene, Tochi opens his bag, and spills some of the pills. Bright, real bright.
5. Tochi calls Smith; "I don't see Marshall'.
6. Smith tells him 'relax dude, you're going to be paid US$2,000/= for delivering my sweets to Marshall'.
7. OK, the Singapore police gets into the picture, and Tochi identifies 'Marshall'.
8. Yawning bread reveals nothing about Marshall, whether 'Marshall' is arrested or not???
Since there is a photo to match Marshall's face??? No information here. I don't know what Marshall said to the police. And this is the dangerous part-any of us could be Marshall. Take a photo of shopgirl, and she could be 'marshall'.
9. All this cloak and dagger thing for a bag of sweets from Smith?
10. Tochi is a frigging idiot.
11. Guilty- I say hang the bum.
12. If Tochi is freed, send the bum to Miami, I have a bag of rice, I need him to deliver to the new Plabo Escabor. But that's another story...it's just rice Tochi???
Guilty. Tochi is a black from Nigeria. There is no political motivation for Tochi to be saved. Unlike the Micheal Fay Case, where Clinton appealed to the Singapore Govt.
Sadly, most blacks from Africa committing offences in foreign countries, stand no chance of redemption.
There is no political need for it.
Why do you think there is so much poverty in Africa and no one gives a thought. There is no OIL.
Strange, I was just rewatching Bridget Jones' Diary 2 last nite and come to think of it, Bridget Jones would be dead in Singapore? In the movie, Jones and her girlfriend went to Thailand. A guy they met on the plane and given her friend a large souvenir bowl which she had no space in her luggage so Jones helped her by packing it in hers. At the Thai customs, they broke the bowl to find it contains a huge amount of heroin. The guy had disappeared and if not for her boyfriend who tracked him down to prove her innocence, Jones would have to be jail for maybe 10 to 20 years... but in Singapore, if her bf didn't manage to prove her innocent.. she would be DEAD?
Just because the boy had played football in Senegal and travelled to Pakistan does not necessarily make him "rich in life experiences". Such a claim is already vague and unspecific. The inference then from such a claim that the Nigerian would therefore be "knowledgeable" or versed in the drug trade is even more tenuous. The judge relied on NO evidence and yet seemed able to conjure up the link by his own thoughts and observation (or is it prejudice?).
Based on the info given, I say there is a clear failure of justice here.
p.s. the burden of proof must rest with the prosecution - the party wishing to bring charges on another party. Otherwise justice will be out of reach of the disadvantaged or those poor of resources, which unfortunately is the common perception of the legal system here.
"In the first, let's assume we're operating under the existing law where the prosecution does not have to prove that Tochi had intent to traffick, nor even to prove that he knew they were drugs."-yawning bread
OK. That is the rule of law in Singapore. The drug carrier has to prove that he/she is innocent.
'Chris' says-'I would not have convicted him of trafficking simply because the evidence is too shaky.'
Chris did not elaborate "shaky".
'feeblechicken''s contribution is watching the movie, Bridget Jones.
Hey "feeblechicken'- did u see the movie with the two actresses, Kate Beckinsale and her friend, who were conned by a drug dealer to smuggle heroin out of Thailand? Checking out at Thai immigration, both girls were nabbed, and the bottom line of the movie was one girl sacrificed her life for her friend.
That is a movie, 'feeblechicken'- get into the real world of drug smuggling and 'in transit' at Singapore In'tl Airport,is one place a drug mule does not want to get caught.
"swl" said- "The judge relied on NO evidence and yet seemed able to conjure up the link by his own thoughts and observation (or is it prejudice?).
Based on the info given, I say there is a clear failure of justice here."
Please enlighten me 'swl' on your phrase- "I say there is a clear failure of justice here."
Tochi had the dope on his body- (legal term), and the dope is Diamorphine. The very FACT that Tochi had a 'cloak and dagger' plan to meet up with "Marshall" in Singapore, and the Diamorphine was wrapped in, and sealed, what did Tochi think he was carrying with a price tag of US$2,000/- payoff?
Aspirin?
Use the reasonable man's approach.
Tochi needed the money,
(but did not know the Singapore law of 'IN TRANSIT', also means that drug carriers go straight to prison, and the gallows,)
was Tochi's worse judgement.
That was Tochi's mistake.
This case is an appalling example of the justice system that is prevailing in this country.
Justice in Singapore could be better served by changing the mandatory death sentence, coupled with the presumption of guilt, and bringing back the jury system.
The onus on the defence to prove the defendant's innocence based on the presumption of guilt automatically shifts the scales of Justice.
The fairness of trials is already much compromised by the fact that there are virtually no lawyers (save maybe one or two) in Singapore who are willing to take up cases involving human rights in Singapore, the existence of which in many cases is highly debatable.
Faced with the prospects of 'sure-losses' not only in court but also in legal fees (considering the accused more often than not come from financially strapped or difficult backgrounds), it should probably come as no surprise that legal practitioners in Singapore seldom choose the rocky path, no matter how idealistic they might have been at their early moments of deciding on a legal career.
Given all these factors that stack the odds against the defendant, it is not surprising that Singapore has one of the highest legally sanctioned execution rates in the world. It is unsurprising but nevertheless disheartening to know that clemency is almost never granted.
In this case, I do not believe that Tochi has been proven guilty beyond reasonable doubt. That and only that should be the criterion - given the prevailing mandatory death sentencing that unfortunately still prevails in our system.
"I had no faith in a system that allowed the supersitition, ignorance, biases, and prejudics of seven jurymen to determine guilt or innocence"-Lee Kuan Yew, who abolished the jury system.
If we had a jury, obviously, the legal premise would be 'innocent until proven 'guilty'.
After reading the FACTS of Tochi's case, I would have to vote 'Guilty'.
I do not think the death penalty will be abolished for drug traffickers and murderers in Singapore.
Let me attempt to explain. To keep prisoners on deathrow alive and fed, is a financial burden on the state. Singapore is not a welfare state.
I am not for the death penalty, as now,with forensic science of DNA, many prisoners guilty of committing murders have been freed. Singapore has it own laws, all relating to 'control of the state', and this is an eg of it.
In fact, to travel to Singapore, for a visit, the visitor has to be extra careful, that drugs are not planted on him/her. That is the kicker.
How do we know that drugs were not planted on Tochi? What yawning bread has presented us, are the FACTS of the case, and as such, I base my judgement on it.
Singapore's legal system was based on the English one, but much tweaking has changed the rule of law in Singapore.
I do not see any legal change in the future. In any case, marital or business, lawyers can 'be bought for a price'. And that is not in the law books.
This is for Contemplateur.
Your scenerio of the mock situation of the shooter with the 'blank bullets'?
The shooter is liable for the death of the victim- under Manslaughter.But that is in other countries. My guess? the shooter if tried in a Singapore Court would get the death penalty. The system is created that the state does not have to financially support the deathrow inmates.
Singapore has no human rights, discharging a bullet in Singapore will get the person the death penalty.
With regards to Juries, if Singapore had not abolished it in 1965, jurists are human beings,both prosecution and defence will get their own jury consultants to select the jurists.
All hypothetical in Singapore of course.
So far none who said "guilty" specified under which legal standard they have come to this decision.
Are you 100% convinced by the facts? Or do you 80% believe he was knowingly trafficking, and 20% think he might not have been? Or 60:40?
All of these ratios of belief would have justified a "guilty" decision under the presumption standard, what the court of appeal termed the "balance of probabilities".
But only those who were 100% convinced should be returning a "guilty!" verdict under the "beyond reasonable doubt" standard. 80:20 and 60:40 convinced means you still have doubt.
So guys, which legal standard are you using? You mean you're all 100% convinced that Tochi knew he was carrying drugs and intended to?
Secondly, to those who are 80:20 or 60:40 convinced, is that margin of doubt something you can dismiss from your mind and thus impose the irreversible sentence of death? Or would you think a sentence that is more appropriate than mandatory capital punishment is needed as an option?
Under Singapore law-'the defendant has to prove that he is innocent'.
Tochi knowingly and intentionally committed the act of importing drugs.- Guilty.100%
With a Jury- based on the legal assumption that 'the defendant is innocent until proven guilty'.- Tochi is guilty.100%
Contemplateur asked, "Is 'beyond reasonable doubt' the same as '100% certain'? ".
I would say so. It means, based on the facts and the reasoning derived therefrom, there is absolutely no basis for any doubt. Nothing supports the alternative possibility.
In this case, even the judge said that there was no direct evidence that Tochi knew he had drugs in his possession. He said it was probable that Tochi knew (which conclusion some of us may even dispute).
But if you read from these facts that the case is beyond reasonable doubt then I don't think even the trial judge would support such a conclusion.
The question is: if one is not 100% certain, how do you justify taking a life?
I believe, guilty or not, that the death penalty should be abolished. One commenter above went to lengths to describe how lethal the heroin was that was being carried. The fact is that he had no intention of using the heroin as a murder weapon, just as I have no intention of using a bottle of floor cleaner as a murder weapon when I carry it home from the store, even though ingesting either would kill me. We seem to forget that drug users CHOOSE to use drugs, so equating a drug mule to an assassin is not a good analogy! We could also have a debate on whether the drug laws should be so harsh, or illegal at all! So I'll ask the questions,
1. Should drug use be criminalised, with harsh penalties, or should it be viewed as a public health problem?
2. Should drug users be imprisoned, or cured of addiction?
3. Should drug traders be hanged, or taxed?
Singapore is soon to allow gambling and already allows prostitution. Both of these cause social problems (and even disease!). Why do we hang drug dealers but not prostitutes? Why should the government force its moral values on me anyway? I think I should be able to do whatever I want with my own body. If I want to drink floor cleaning liquid or smoke pot, why should you care? Most other Singaporeans would probably, as usual, prefer to limit my freedom in order to "solve the drug problem" just like they want to solve the racial problems, solve the pornography problems (and protect the children!), solve the problem with street protests, and solve the gay problem. It's all the same to me. It's about limiting my freedom in order to make sure someone else stays happy. Hang the man to make sure Singaporeans stay happy and productive.
What amazes me is that US$2000 is deemed a "large" sum. It may be so to someone sitting at home in a thatched hut in Africa, but the airfares, transit lounge hotel rates, meals, etc wouldn't leave any change from the two grand. The story cooked up by Tochi was fake from the start. They should have just sent him directly from airport to the Changi gallows, instead of wasting time and public money on all those statements and judicial process.
Sorry if I'm drifting away from the issue here, but is it ever justified to sentence someone to death?
Judges (or jurys if you want) are human beings, prone to make mistakes. How can any human ever decide that another human has forfeited his right to live?
What makes some of us so bloodthirsty that we shout "Let him hang!" Why is prison not enough? Why must his neck break? Why must the circulation to his brain stop? Why must he die?
Personally I have more understanding for the person that in a fit of rage takes a life, than the lawmaker who calmly and coldly states that someone else must die.
The shockingly high number of juridical killings in Singapore (probably by far the highest in the world counted per capita) makes me ashamed.
As in the case of the Briton who killed his Singapore driver and his China GF, the Tochi case also seem to suffer from a dearth of info/details regarding certain rather pertinent details such as 'Marshal' who was at least identified but somehow made no appearance in court.
In the case of the Briton, I am still puzzled by the DPP's decision to charge him for manslaughter for the death of the woman who was quite clearly deliberately killed to silence her. Also, what about the foreign couple (British?) who helped and therefore abetted in the commission of the crime?
Another anamoly is the trial and sentencing of the Briton's local GF. Wasn't it like/strange to put the cart before the horse when the killer/murderer had yet to be tried? There are other attendant doubts relating to these issues. What struck me is the relative ease with which the DPP office, had glossed over the circumstances and details of China girl's killing.
Of course, the biggest issue is why had the govt so readily accepted the Aussie's govt extradiction terms of 'no hanging'. The eagerness to compromise our sovereignty betrayed a lack of real interest in obtaining real justice for a Mr Nobody-Citizen. Trade and economic relation with th Aussies is paramount it is obvious.
It may be a digression from the topic, but I would really appreciate it if some legally trained among us can help explain the matter. Thanks.
"Marshal", also known as Okeke Nelson Malachy, was tried at the same time as Tochi. However, Malachy strenuously denied that he even knew Tochi or Smith, or anything about the drugs. Since Malachy said he had no connection whatsoever with the case, nothing in his testimony related to Tochi. Thus I have omitted from the article unnecessary references to Malachy. The cases are separate.
All the key evidence that court had at its disposal regarding Tochi have been recounted in the essay. There is no incriminating evidence from Malachy.
My answer:
First model: Presumed guilty until shown innocent. Under this scenario, I find him Guilty.
Second model: Presumed innocent until proven guilty. Under this scenario, the trial is incomplete and I should not give a verdict. Sorry, Yawningbread, the trial proceedings had been based on the first scenario, so prosecution had never covered the grounds that would have been required under the second scenario, so giving a verdict is not an option.
I have been brief because the real issue is not on the verdict but on the sentence. My main concern is that carrying out the death penalty is irreversible. The death penalty should NEVER be imposed as long as there is doubt on the facts of the case, as others have already commented. A person's life should never be based on any judge's opinion that he thinks it's most likely that the accused is guilty. Once you take away somebody's life, you can't give it back if you discover a mistake in the future.
Robert L
I have read thru' all of the interesting inputs from our commentators.
The Singapore Govt has done a great job of 'who to hang and who not to hang'. Political motivated.
Death penalty- which I am against, is the city-state's answer to 'no welfare state' rules.
Appears that proving 'beyond a reasonable doubt' is determined by the Singapore Judicial System here.
As one commentator said, "OK for for casinos and prostitution".
Well, the casinos will bring in tons of money for the Singapore Govt.
As such- where there is money to be tapped, the Singapore govt will follow, and this includes druglords who operate under corporations, and fund their money thru' Singapore's banking system.
It is what's good for the Govt and not the people. Which brings to my mind, will we see a 'gay anchor' or will gays be just a token lot for the world to see 'how tolerant the govt is?' apparently, it is not about who is good, or what deed requires death in Singapore. It is all about convenience.
those who are so eager to hang Tochi should consider the circumstances. why would he be hanging out in the airport for more than a day if he is worldly in experience.
The judge did his job and Tochi is going to hang. But the entire sorry episode is upon our conscience because most Singaporeans are pro-hanging for drug traffickers.
Definitely guilty. Importing drugs in quantity, even if unintentional, is itself a crime. It similar to killing another person -- even if you do this unintentionally, you are subject to severe punishment.
From a legal perspective, actus rea has been established -- the crime has indeed been committed by the accused. What needs to be established is mens rea -- the "guily mind". Note that mens rea can be established through intent, recklessnesss or criminal negligence. In this case, while intent is hard to show, it is easy to see that the accused has indeed been reckless and criminally negligent. Therefore mens rea has been shown and the accused is fully culpable.
The accused did not take sufficient steps to avoid the harmful act of importing drugs into Singapore. He has been criminally negligent. It is similar to digging a pit, which you then do not put guards around so that someone falls in and dies -- you are guilty of killing him even though you had no intention of doing so because of criminal negligence.
The accused also did not consider what harm his bringing these unknown substances into Singapore might have. He has been reckless with regard to the safety of others. An example would be accepting instructions to dig a pit and not put guards around it -- even though it was not your idea, a person of ordinary sense should know that that might kill people and refuse. If the pit kills someone, then you are responsible for the death even though it was not your idea and not your intention.
I hope this clears up the legal position. This is all in accordance with the common law practiced throughout the commonwealth.
Tochi is an idiot and lost the game. He knew that he was smugling something illegal.
He is guilty as all hell.
Should he be aquited because he says he thought he was carrying a kilo of choclates half way across the world for 2000 dollars?
I think he is guilty. Come on, $2,000 to carry herbs? Heck If it were herbs why not mail it?
Why? No postal service in Singapore or Indonesia?
Sorry let him swing..
Fairplay
Tochi is dead. It is so sad as it is obvious that he had no idea of ehat he was doing - and that he was carrying drugs. Why would he hang around the airport for a day or two - without even panicking? He was a naive uneducated African who was used and now dead. Singapore has got another death on its conscience. Let us pray for Tochi's soul.
Its always sad when someone is executed but Tochi certainly knew what he was carrying. I followed the case from day one.
The decription of the packing suggests that he had smuggled these in his stomach. They were compressed and packed in alternating layers of plastic and aluminium foil into balls.
They were found in a choclate jar in his bag.
He even swallowed one of the balls to convince the police they were choclates.
Let this be a reminder to all that smugling drugs into Singapore does not pay.
I have seen the arguments that the crime in their home countries would at most attract a few years in jail. If so do the drugs in those countries that attract less punishment.
Why does carrying drugs justify the death penalty? Why not life in prison? Is that too expensive? The US uses the death penalty against convicted murderers, but it has not decreased the rate of murder. In Europe, there are much fewer murders despite the lack of the death penalty. So does it really deter people? Or does it make people use smarter ways to get in drugs, like using proxies, young couriers who are tricked into going to Singapore?
The tough Singaporeran laws probably mean that these drugs are more valuable in Singapore and therefore I believe the death penalty attracts more couriers rather than deters.
Furthermore, there should never be just one judge deciding over the death penalty. There should be a jury and an appeals court.
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