Monday, February 14, 2022

Halt the Executions of Pausi Jefridin and Roslan Bakar in Singapore(Malaysian Bar)


Press Release

Halt the Executions of Pausi Jefridin and Roslan Bakar in Singapore

The Malaysian Bar is saddened to learn about the impending executions of two men — Pausi Jefridin (“Pausi”), and Roslan Bakar (“Roslan”) — in Singapore on charges of drug trafficking.  Pausi is a Malaysian from Sabah, whilst Roslan is reported to be a Singaporean.1  Their executions are scheduled for 16 February 2022, and according to reports, the families of the two men were only informed of their scheduled executions on 9 February 2022.2

Both men are suffering from some form of intellectual disability.  It was reported that during their resentencing application, Pausi’s counsel submitted that his client has an IQ level of 67, and “had an arrested or retarded development of mind as a result of his exceptionally low and restricted education.”  Similarly, counsel for Roslan submitted that his client had “limited capacity for judgment, decision-making, consequential thinking, impulse control and executive function.”3

Due to their cognitive limitations, these individuals are often subjected to stigma and discrimination associated with their disabilities.  In this case, Pausi and Roslan’s intellectual conditions may have contributed toward their poor assessment of the very serious risks in agreeing to carry out the acts which were the basis of their criminal charges.

Furthermore, the execution of a mentally impaired person is prohibited under the United Nations’ Convention on the Rights of Persons with Disabilities (“CRPD”), which both Malaysia and Singapore have signed.  We take cognisance of Singapore’s strict policy with regard to drug trafficking; however, we sincerely hope that Singapore will uphold its commitment that it has made under the CRPD.

The Malaysian Bar therefore humbly calls upon the Government of Singapore to consider granting clemency to both Pausi and Roslan.  While we understand and respect the Singapore judicial process, we are hoping that clemency can still be afforded to them.  The death penalty is an irreversible act of punishment, and we ask that the Government of Singapore consider the cognitive impairments of Pausi and Roslan, and whether carrying out the death sentence is justified.  The circumstances call for humanity and compassion.

Malaysian Bar

14 February 2022

1Singapore set to hang another Malaysian diagnosed with low IQ”, Malaysia Now, 12 February 2022. 
2Singapore set to execute 2 men on 16 February 2022”, The Independent Singapore, 13 February 2022.
3 Roslan bin Bakar v Public Prosecutor and another matter [2017] SGHC 291.


The case refered in the Bar Statement, I have laid out below

In the high court of the of singapore [2017] SGHC 291
Criminal Motion No 40 of 2016
Roslan Bin Bakar… Applicant
Public Prosecutor… Respondent
Criminal Motion No 45 of 2016
Pausi Bin Jefridin… Applicant
Public Prosecutor… Respondent
[Criminal Law] — [Statutory offences] — [Misuse of Drugs Act] — [Discretion of court not to impose sentence of death when offender was suffering from an abnormality of mind]
[Criminal Procedure and Sentencing] — [Sentencing] — [Mentally disordered offenders]

This judgment is subject to final editorial corrections approved by the court and/or redaction pursuant to the publisher’s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports.
Roslan bin Bakar


Public Prosecutor and another matter
[2017] SGHC 291
High Court — Criminal Motion Nos 40 and 45 of 2016

Choo Han Teck J

12, 14–15, 20 September 2017
13 November 2017 Judgment reserved.
Choo Han Teck J:
1 Both applicants applied to this court to consider whether the death sentence meted out to them on 22 April 2010 ought to be substituted with a sentence of life imprisonment, under s 27(6) of the Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012).
2 The grounds for the applications of both applicants were similarly based on s 33B(3)(b) read with s 33B(3) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). Both applicants claimed to be suffering from an abnormality of mind, as defined in this provision, which substantially impaired his mental responsibility for his acts and omissions. In order to escape the death sentence under s 33B, both applicants also had to prove that they were couriers only. The prosecution did not dispute that Pausi was a courier but denied that Roslan was one.
3 Counsel for the applicant in Criminal Motion No. 45 of 2016 (“Pausi”), Mr Chung Ting Fai, submitted that his client had an arrested or retarded development of mind as a result of his exceptionally low and restricted education. He further submitted that Pausi does not possess the average reasoning abilities to think through his actions and consequences thoroughly. Pausi’s expert, Mr Danny Ng, assessed Pausi’s IQ to be at 67, which would be a mild intellectual disability. According to Mr Chung, the low intelligence of Pausi made him “incapable of resisting any internal rationality that might have dissuaded him from committing the offence”. 
4 Counsel for the applicant in Criminal Motion No. 40 of 2016 (“Roslan”), Mr Kertar Singh, submitted that his client was a courier and denied that he gave instructions to another to retrieve and deliver the drugs. Mr Singh argued that his client suffered from an abnormality of mind as he had reduced intellectual functioning. He also relied on the experts’ opinion that his client had “limited capacity for judgment, decision-making, consequential thinking, impulse control and executive function” due to the underlying cognitive defects. The learned DPP, Ms Christina Koh challenged these findings on various grounds, such as the language used by the defence experts in conducting the psychiatric assessments as well as the limitations of the prison setting under which they were conducted. She argued that Roslan was within the borderline range of intellectual functioning, relying on the testimony of IMH psychiatrists, which she submitted was more accurate. 
5 Counsel for prosecution and the applicants could not agree as to how the IQ levels of the two applicants ought to be interpreted. Ms Koh maintained that the IQ score alone, is not conclusive because it only assesses cognitive abilities but not one’s adaptive functioning abilities. 
6 I am of the view that the IQ level of both applicants in this case does not assist them. In some cases, the IQ level may offer corroborative support, but here, the conduct of both applicants were amply shown through the evidence at trial including their own testimonies, that they were functioning in ways no different from people with higher IQ level in relation to the drug offences. Significantly, Roslan was the central figure in the drug transaction. He directed the actions of the others involved and orchestrated its moving parts. Pausi was able to deliver the drugs from outside Singapore and participated in the operation with little difficulty. That conduct and behaviour, cannot be regarded as that of affecting their culpability. A low IQ level alone is not evidence of an abnormality of mind.
7 I find on the evidence at trial that Pausi was probably acting only as a courier but I am satisfied that Roslan was not. This finding is for completeness in dealing with their applications before me. It does not affect the verdict because neither applicant succeeded in proving the second criterion of s 33B(3) of the MDA.
8 For the purposes of s 33B(3), the court cannot ignore the functionality of the mind of an accused person in question. In this case, I find that despite a low score, both applicants had displayed competence and comprehension of what they were doing when they carried out their act of trafficking in the drugs.
9 Their applications for re-sentencing are therefore dismissed.
- Sgd -

Choo Han Teck

Christina Koh, Chan Yi Cheng and Samuel Yap (Attorney-General’s Chambers) for prosecution

Kertar Singh s/o Guljar Singh (Kertar and Sadhu LLC) for applicant in Criminal Motion No 40 of 2016

Chung Ting Fai (Chung Ting Fai & Co) for applicant in Criminal Motion No 45 of 2016
My Comments:- 
# Sadly, the focus in this case seems to be the state of the mind during the commission of the offence, and during trial > it did not look at the state of the mind NOW during the serving of the sentence on death row - on just before he is hanged to death. If a person serving his/her sentence or about to be executed - does not understand anymore the reason why he is serving a sentence or about to be hung, this state of mind brought about by mental condition or intellectual disability is very important.
## The failure of the prosecution to establish  whether the accused person is of unsound mind and consequently incapable of making his defence or even be charged is an issue. The duty, in my opinion is on the Court and the prosecution. The determination of the capacity of one to be charged and tried is determined by a Medical Certificate by a medical professional - it not to be determined by a subjective view of prosecutor or judge. Should this be a mandatory requirement for all criminal trials. 

## For a crime, what is important is also 'mens rea' - A mens rea​ refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime. Was this established - some legal presumptions removes the obligation of the prosecution to prove this. So, should such legal presumptions be abolished? 
## After conviction, when one is serving the sentence - again here mental or intellectual disability. When discovered, that person would be send to the relevant medical institution for treatment - it is foolish to keep in prison or even execute anyone, who know longer knows that he committed a crime, or that he is being sentenced for a crime.
###However, in the case above, these issues were not raised or considered by courts according to my reading of the judgment. Some lawyers may have raised this issue, some will fail to raise these relevant questions...
#### Prison and more so death row can bring about mental illness - how do we deal with it? Ignoring it is not an option. 


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