A Criminal Motion has been filed in the Court of Appeal today on behalf of Yong Vui Kong. The motion challenges the constitutionality of the prosecution’s decision to charge Vui Kong with a crime that attracts the mandatory death penalty while withdrawing previous charges made against Vui Kong’s ‘boss’, Chia Choon Leng.
In his affidavit, Vui Kong’s lawyer, M Ravi, states that in acting in this manner, the Attorney-General has violated Vui Kong’s fundamental right to equal protection of the law enshrined in Article 12(1) of the Constitution. Applying the standards set out by the Court in the recent case of Ramalingam Ravinthran vs PP, it is submitted by Mr Ravi, that ‘the Applicant is able to raise a prima facie case of a breach of Article 12(1).’
Chia has been identified by the Attorney-General’s chambers as the alleged mastermind behind the criminal enterprise that Yong was found to have been a part of. In reply to queries made by M Ravi, the Deputy Public Prosecutor confirmed that Chia had been arrested in connection with the trafficking syndicate that Vui Kong was a part of. Yong had also mentioned his name repeatedly to the police and to the court while accounting for his actions.
During the criminal trial in the High Court, it was found that Chia was the person who initially contacted Vui Kong, and subsequently provided him with the ‘gifts’ to deliver. The ‘gifts’ that Vui Kong was caught with was found to have contained the 47.27g of diamorphine, which he was sentenced to death for.
Chia however, remains uncharged and in executive detention under the Criminal Law (Temporary Provisions) Act, where he can be release at any time. The Prosecution had informed the court that they had withdrawn charges against Chia due to a lack of evidence. However, Vui Kong, in his affidavit, states that, ‘ I do not recall having been asked by the Prosecutor to assist in relation to any difficulty of evidence perceived in relation to Chia.’
Such is the phenomenon created by the Mandatory Death Penalty, that despite being caught at about the same time as Vui Kong, in relation to the same criminal enterprise, third parties and parcel in question, the mastermind behind the criminal syndicate remains in detention while the courier that he recruited, who is young, naïve and in desperate need of money, is sentenced to death. This cries out for explanation as it goes against the very notion of justice.
Vui Kong, in his affidavit, writes that, ‘My complaint is that if the Attorney-General felt unable to prosecute Chia in the circumstances, he should have felt unable to prosecute me and my prosecution (for a capital offence) on those same facts can only be described as a treatment which is not equal within the meaning of Article 12(1).’ He further states that, ‘I do not understand how it can be possible for the Attorney-General to prosecute me in such circumstances given that on all the evidence before him, he is unable to prosecute Mr Chia the mastermind.’
According to M Ravi, ‘The evidence on record is sufficient to rebut the presumption of constitutionality with regards to the A-G’s decision to prosecute the Applicant for a capital offence while not prosecuting a more culpable party at all’. One such reason is ‘ the lack of any apparent reason for the Attorney-General’s decision other than a difficulty of evidence which is itself difficult to follow given the evidence against Chia’. Another reason would be that, ‘it is contrary to any notion of justice that (all other things being equal) a less culpable offender should be charged with a more serious offence (and subjected to a more serious punishment) while a more culpable offender is not prosecuted at all when both are involved in the same criminal enterprise, especially when the punishment of a less culpable offender is death.
In addition, Ravi also points to the fact that the courts intervention, ‘would serve an additional purpose in this case by reminding the Attorney-General of the legislative priority intended to be given as between categories of offenders under the Act.’
He cites the speech made by the then Law Minister, Mr Chua Sian Chin, who said that, ‘The death penalty will also be imposed for the unauthorized import, export or trafficking of more than 30g of morphine or more than 15g of heroin…It is not intended to sentence petty morphine and heroin peddlers to death’. Ravi adds that the purposes of the Act, ‘is to target the masterminds behind the drug trafficking enterprises, not the low-level ‘pedlars’ recruited, forced or misled to traffic the drugs.’
The Court has yet to set a date for the hearing. We will keep you updated in due course.