Yawning Bread. June 2006

Courts must pay attention to the quality of justice


    

 

 

The gist of the story is like this: Undercover police officers cultivated the trust of Adrian Yeo via internet chatrooms for a while before he agreed to meet with them. The reason it took so long was because at first, Yeo was unwilling to participate in a sex and drug session. It was only after many rounds of persuasion that he finally agreed.

When he showed up at the designated place on 1 April 2006, his internet contact revealed himself to be a police officer. Yeo was then arrested for drug possession. On 7 June 2006, he was sentenced to 8 months' in jail [1].

Two concerns bifurcate from here. The first, which this essay addresses, is that of entrapment and the quality of justice. The second, which is the subject of Yet another exploitative story, is about how the tabloid New Paper handled the story.

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Yeo's lawyer, Kertar Singh, argued before the court that the police "overstepped a boundary". Yeo was at first unwilling to participate and it took considerable and persistent inducement before he changed his mind.

The court's attention was drawn to a judgment in October 2001, in the UK House of Lords that dealt with this issue. The case involved Spencer Grant Looseley, who was approached several times by an undercover police officer trying to get him to sell drugs. Lord Nicholls of Birkenhead, in the opening paragraph of his judgment [2], said,

Every court has an inherent power and duty to prevent abuse of its process. This is a fundamental principle of the rule of law. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. Entrapment... is an instance where such misuse may occur. It is 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. That would be entrapment. That would be a misuse of state power, and an abuse of the process of the courts. The unattractive consequences, frightening and sinister in extreme cases, which state conduct of this nature could have are obvious. The role of the courts is to stand between the state and its citizens and make sure this does not happen.

 

Much of the judicial discussion centred on whether entrapment was a valid argument for mitigation, i.e. reducing the severity of the sentence, or for defence, denying culpability.

My reading of that lengthy judgment was that the Law Lords considered that in certain circumstances, entrapment could be a valid defence. The simple tests were:

  • Whether the authorities had reasonable grounds to suspect that the person was ordinarily engaged in such offences, before launching the entrapment exercise;
     
  • Whether, prior to the inducement, the accused had the ready intention of committing the offence as soon as an opportunity arose;
     
  • Whether the offence was induced as the result of persistent requests, threats, deceit, or offers of rewards.

Providing a simple opportunity to people to commit a crime, if they are of a mind to do so is one thing, but putting forth reward and inducement to convince them to do it, is another.

For example, say we have a rampant situation of taxis refusing to turn on their meters, and it is a crime in law. Say the police use decoys who board taxis asking to travel to out-of-the-way destinations. If a taxi-driver, on learning the destination, responds to the decoy passenger with the counter-offer of an off-meter fare, then this may be acceptable entrapment. The decoy's role was passive, not making any inducement; the taxi-driver volunteered the crime.

But in another case that the Law Lords considered, a man who ordinarily trafficked in cigarettes was approached by police decoys, at first, only for cigarettes. After a number of transactions, a trusting relationship developed between them. Then the decoys asked him if he could supply heroin as well. Not wanting to lose a regular customer, the cigarette guy went out of his way to find suppliers of heroin in order to complete the transaction, even though his first reaction was "I'm not into heroin."

The Law Lords felt this amounted to excessive inducement. The decoys actively suggested and promoted the crime.

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-- The New Paper, 11 June 2006, Family did not know he's gay or that he took drugs
   
In the absence of court transcripts, it is hard to say how much inducement was offered by the police officers to Adrian Yeo, though that there was some measure of inducement is quite clear. That inducement was sex.

It is troubling that according to a friend of Yeo's, he went around a number of drug dealers in a "desperate" attempt to obtain the drugs that would gain him admission into the sex session, though of course the friend could be exaggerating.

The court did not accept the defence of undue entrapment, sentencing Yeo to 8 months' imprisonment. More crucially, quoting from the report in the Straits Times, 8 June 2006, the "the judge said there was nothing to suggest that [Central Narcotics Bureau] officers had acted illegally or had gone beyond the boundary of the law."

I note that the court came to this conclusion at the same sitting as the trial rather than reserve judgment. Surely the issue of entrapment raised by defence counsel must have seemed serious enough to warrant careful consideration and study before coming to a decision?

In any case, the issue with entrapment is not whether the actions of the police violated any specific law, as the judge's words imply, but whether they violated considerations of justice. I'm not arguing that in this particular case it did, but I would think that this important question was treated too lightly.

This brings me to my main question: Do Singapore courts merely see their role as enforcing laws or delivering justice?

* * * * * 
 

Other quotes from the Law Lords' judgment:

If police officers acted only as detectives and passive observers, there would be little problem in identifying the boundary between permissible and impermissible police conduct. But that would not be a satisfactory place for the boundary line. Detection and prosecution of consensual crimes committed in private would be extremely difficult. Trafficking in drugs is one instance.

Another quote:

Take a case where an undercover policeman repeatedly badgers a vulnerable drug addict for a supply of drugs in return for excessive and ever increasing amounts of money. Eventually the addict yields to the importunity and pressure, and supplies drugs. He is then prosecuted for doing so. Plainly, this result would be objectionable. The crime committed by the addict could readily be characterised as artificial or state-created crime. In the absence of the police operation, the addict might well never have supplied drugs to anyone.

 

On a related note, there was an article in 'Today' newspaper on 5 June 2006 about how someone wrongly accused of a crime could end up broke despite being acquitted [3]. See box on the right.

Thomas Koshy, a lawyer in private practice, argued for the courts to provide for compensation.

"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," he wrote.

He also noted that this will require a change in legislation.

In England, if a person is acquitted, the court normally makes an order of costs in his favour unless there are positive reasons for not doing so, Koshy pointed out.

Our failure to do so may pervert the course of justice in Singapore, as many who are charged are reluctant to spend on legal costs to defend themselves when even a win means losing their savings. It is just not right that a person should have to choose between wrongful conviction and personal bankruptcy.

This is a very serious point, and it is high time we bring our system of justice in line with higher standards.

* * * * *

 
It may be another uphill battle, because asking for such a change goes against the Singapore government's mindset. They hate any proposal that seeks to put a crimp on their freedom of manoeuvre. This will make prosecutors think twice about charging anyone, they will say. And that, they assume, will not be to the good of Singapore -- which we should stoutly dispute..

Too often, the Singapore system privileges the freedom of the Executive to do what it thinks it needs to do, even at severe cost to ordinary citizens. It is the same mindset that loves sweeping laws with vague language, leaving it to the prosecutor to use them as he sees fit. The same thinking sees no reasonable limit on entrapment, and one that makes our judges extremely deferential towards the Executive.

We boast about how efficient is the justice system in Singapore, but it is high time we give due consideration to whether all that efficiency delivers quality. Do we have a bad habit of seeing the courts as yet another instrument for enforcing the will of the Executive? Shouldn't the courts also, as in Lord Nicholls words, "stand between the state and its citizens and make sure [misuse of state power] does not happen"?

Yawning Bread 


 

The wrongful conviction of Jagatheesan

On 4 August 2005, Jagatheesan met Gunaprakash at 6.45 pm at Newton Hawker Centre to collect payment on a loan of S$100 that the former had made to the latter in July 2005.

Gunaprakash said he didn't have the money on him at the moment, but that a "friend was on the way with it."

Jagatheesan then went a short distance away to wait.

A few minutes later, Gunaprakash met with 2 undercover police officers in a pre-arranged deal wherein Gunaprakash would sell 90 'Ecstasy' tablets to the undercover officers for S$1,700.

As soon as the tablets were handed over and counted, the police arrested him. Since the police had noticed Jagatheesan earlier while they were tailing Gunaprakash, he was also arrested.

Jagatheesan was surprised to be apprehended. No drugs were found on him. His home was searched, but there was nothing incriminating there either.

However, Gunaprakash testified that  Jagatheesan was his supplier for the 'Ecstasy' tablets, and on this accusation alone, the latter was convicted of trafficking in controlled drugs, jailed 5 years and given 10 strokes of the cane.

See the verdict by Magistrate Roy Grenville Neighbour.

Jagatheesan appealed, and fortunately, on 26 May 2006, Justice V K Rajah overturned the conviction. But by then, the accused had spent months in detention and was said to be S$50,000 poorer in legal fees, money he didn't have -- which was why he needed to get back his $100 loan to Gunaprakash in the first place.

 

Footnotes

  1. See the Straits Times' report of this story in Trainee doctor entrapped for drug possession, and the New Paper report in Ice vice.
    Return to where you left off

  2. See the Law Lords' judgement in Regina vs Looseley.
    Return to where you left off

  3. See the article Free, yet faced with a mountain of debt.
    Return to where you left off

  4. Geoffrey Pereira also has a blog entry on the question of entrapment. See http://geoffp.blogspot.com/2006/06/rules-of-entrapment.html

 

Addenda

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