The 2 previous cases, as in the one with Yong, involved the smuggling of diamorphine (heroin) beyond the statutory limits which mandates the death penalty in Singapore.
The two earlier cases involving Koh and Chia:
- Chia was charged with giving 31 packets of granular substance, which the authorities later determined “to contain not less than 17.21g of diamorphine”, to one Koh Bak Kiang in the vicinity of Serangoon Central on 2 April 2007.
- Chia was charged with giving 45 packets granular substance, which the authorities later determined “to contain not less than 25.07g of diamorphine”, to one Koh Bak Kiang at Block 209, Serangoon Central, on 4 April 2007.
Trafficking of 15g and above of diamorphine attracts the mandatory death sentence in Singapore.
Koh was charged and prosecuted for trafficking in not less than14.99g of the drugs. He pleaded guilty to three non-capital charges of drug trafficking and conspiracy to traffic drugs. He was sentenced to 25 years jail and 24 strokes of the cane.
The two charges against Chia, however, were withdrawn by the prosecution, even though the trial judge in Koh’s case said “the accused [Koh] had cooperated with the authorities and was willing to be a prosecution witness in the forthcoming trial against Chia.”
The judge in that case ordered "a discharge not amounting to an acquittal" for Chia.
Chia was then detained under the Criminal Law (Temporary Provisions) Act (CLTPA) in Singapore. He is currently still being held under the CLTPA.
26 charges against Chia – but no prosecution
In his supplemental submissions to the court on Monday, counsel for Yong questioned the seemingly arbitrary discretion exercised by the AG in not charging Chia.
M Ravi said: “[It] becomes all the more difficult to follow the discretion that the prosecution applied in withdrawing charges against Chia given the [trial] judge’s observation that Chia was not only involved in drug trafficking, but that he actively recruited, instructed and supplied drugs to couriers and was at the apex of ‘an organised group that carefully planned and coordinated drug trafficking activities involving diamorphine and other drugs.’” [Emphasis added.]
With Chia also performing similar roles with regards to the Yong Vui Kong case, M Ravi argued that Chia’s “culpability exceeds” that of both Koh and Yong “from a legal and policy perspective.” Chia’s culpability can be said to exceed that of mere couriers such as Yong, M Ravi said.
Court documents also revealed that Chia had, in fact, been initially charged with 26 counts. All charges were subsequently withdrawn, even though 5 of the charges related directly to Yong, stating that Chia had instigated and conspired with Yong in trafficking the drugs.
Difficulty in evidence?
In Yong’s case, the prosecution had argued that it did not prosecute Chia for his part in the case because of a “difficulty in evidence.” It cited Yong’s unwillingness to testify against Chia “as a factor that weighed heavily against him [Yong] when deciding to proceed with a capital charge” against Yong, M Ravi said.
M Ravi argued that in the case involving Koh, the prosecution had in fact a witness [Koh] who was willing to testify against Chia – but that even then, the AG decided not to prosecute Chia. The prosecution had also pointed to the fact that Chia had “handed a brown envelope containing the diamorphine to the accused at the vicinity of Serangoon Central…”, a point which indicates, by the prosecution’s own account, that it had evidence against Chia.
The decision by the AG not to consider amending the charge against Yong to one of a non-capital offence – because of Yong’s seeming unwillingness to testify against Chia – “demonstrates the failure of the prosecution to give unbiased consideration in their withdrawal of charges against Chia,” M Ravi said.
In other words, the AG’s authority on prosecutorial discretion seems to have been exercised arbitrarily in both instances, and that its citation of a lack of evidence, and that Yong was unwilling to testify against Chia, as reasons in not prosecuting Chia, is questionable.
Of the initial 26 charges against Chia, 5 have been made known to the defence, while another 2 were disclosed by the Court itself to the defence. M Ravi has requested the prosecution to make available to the defence the other 19 charges which were initially laid against Chia. The prosecution, to date, has declined to do so, saying that these other charges are not relevant to Yong’s case.
“It is submitted by the Applicant [Yong] that these charges may be both relevant and important in these proceedings and he would like to request for these charges,” M Ravi told the court in his submissions.
Singapore courts have no jurisdiction?
The prosecution has also rejected the call to prosecute Chia as Chia’s alleged offence – one of abetting the trafficking of drugs into Singapore in the Yong case - was committed in Malaysia, which is beyond Singapore’s jurisdiction, the prosecution argued.
M Ravi, however, cited common law to support his contention that previous judgements have made it clear that Singapore laws do not prevent such prosecution.
District Court Judge, Chew Chin Yee, had ordered “a discharge not amounting to an acquittal” (DNAQ) in Chia’s case in 2008. The issue of jurisdiction apparently did not figure in the judge’s decision. “Presumably the District Judge also was of the view that the charges were valid at common law,” M Ravi said. “The learned Judge’s Minutes would have reflected his view that the charges had no basis in extant law – had he been of that opinion.”
Besides, M Ravi said, in all of the proceedings so far, and in correspondence on why a mastermind [Chia] was not prosecuted, the prosecution has never suggested that it lacked legal power to prosecute Chia.
On the contrary, M Ravi disclosed, the prosecution had, in recent weeks in correspondence with the defence, asked if Yong was now willing to testify against Chia, and that if he was, the prosecution would consider bringing charges against Chia.
“If there were no jurisdiction, or if the Attorney General believed there was no jurisdiction,” M Ravi asked the courts, “what would be the point of mooting such testimony as a prelude to re-opening the case against Chia?”
“The issue of whether the Applicant [Yong] has been denied equality by reason of the withdrawal of charges against the alleged mastermind thus remains a live issue,” he added.
Yong treated unequally
In delving into Chia’s role in the Koh case, counsel for Yong is trying to show the courts that his client has been treated unequally under the law; that the Attorney General has exercised his prosecutorial discretion discriminatorily; and in the process has infringed his client’s constitutional right under Article 12 (1) of the Constitution.
The fact that Chia had been involved in 2 previous instances of drug trafficking in Singapore, 2 months before the Yong one, and that the AG decided not to prosecute Chia subsequently, must be admissible in evidence and highly relevant to Yong’s case, M Ravi said. “The failure by the Attorney General to consider Chia’s previous drug trafficking activities must be considered a relevant factor,” he added.
“The statement by the Attorney General… that the other  charges [against Chia] ‘has nothing to do with him [Yong]’ overlooks the fact that it is now known that 2 of those other charges directly implicate Chia in drug trafficking activities, which lies at the heart of his [Yong’s] assertion of Chia’s culpability as a mastermind.”
Not seeking death sentence for Chia
M Ravi says his client, Yong, is not seeking the death sentence to be imposed on Chia, or for Chia to be tried in court. Instead, Yong is asking the courts to, in light of the prosecution’s selective and arbitrary decisions to prosecute him and not Chia and in the event infringing Yong’s constitutional rights under Article 12 (1), to set aside his death sentence, and to send his case back to the AG to allow the AG to review the charges.
“A lack of equality of treatment is a wrong that has lasting consequences, unless the Court reverses the wrong,” Yong said in his affidavit to the court last week. “The wrong that has been done to me by denial of equality of treatment cannot now be corrected simply by belatedly prosecuting Chia after I have been denied any of the… opportunities that would have been present if I had been given equality of treatment.”
Read also: Judgement reserved at Yong Vui Kong’s hearing.