I refer to the Attorney-General’s Chambers’ statement dated 19 October 2020 titled “Interview by Mr Ravi s/o Madasamy given to The Online Citizen Asia on 19 October 2020”.
First, I refer to the point made at Paragraph 3 that “The Court of Appeal in the decision issued today explicitly pointed out that its initial decision to convict the Applicant was “correct at the time [it was] made”… ”
With respect, it was not clear at all that the Court of Appeal is justifying its decision as being correct when allowing the Prosecution’s appeal back in 2018. The quoted words were clearly taken from paragraph 126 of the Court of Appeal’s written judgment in CA/CM 3/2020 delivered by Chief Justice Sundaresh Menon, which is set out in full below:
“…It is a reflection of the robustness of our legal framework that the court may in limited circumstances take into account subsequent changes in the legal position to reassess previously made decisions, even if they were correct at the time they were made. That is precisely what has happened in this exceptional case.”
The words “even if” means “whether or not” (see Cambridge Dictionary) or “supposing that” (see Collins Dictionary). Using the words “even if” in this context therefore gives rise to two plausible scenarios which CJ Menon may have in mind as had happened in the present case:
a) The court has taken into account subsequent changes to the law on wilful blindness in Adili Chibuike Ejike v Public Prosecutor to review Gobi’s conviction, which was correct at the time it was decided.
b) The court has taken into account subsequent changes to the law on wilful blindness in Adili Chibuike Ejike v Public Prosecutor to review Gobi’s conviction, which was wrong at the time it was decided.
Therefore, when Mr Ravi said that the Court of Appeal wrongly allowed the Prosecution’s appeal, it could not have been said to be “categorically false” as the Court of Appeal did not, in fact, explicitly say that their decision on this aspect was correct at the material time.
Indeed, and with the utmost respect, it would have been inappropriate for the Court of Appeal to be “attempting to justify their earlier decision ex post facto” (bearing in mind that three out of five judges which allowed Gobi’s review application were the same panel of judges which allowed the Prosecution’s appeal), as they would be giving the public a perception of being recalcitrant (to put it bluntly), and therefore undermining public confidence in the administration of justice.
In response to paragraph 4, where Mr Ravi’s assertion about Division 1B of Part XX of the Criminal Procedure Code was “oppressive”, it was acknowledged that this was unwarranted and could have been better characterised.
What Mr Ravi had in mind was the Prosecution’s oppressive conduct in fighting for Gobi’s right to life, as can be seen from the fact that the Prosecution had submitted that Gobi’s application in CA/CM 1/2020, which was an application for leave under section 394H of the Criminal Procedure Code to file what eventually became CA/CM 3/2020, was an abuse of process, when ultimately, one of the arguments raised (which was based on the CA’s holding of wilful blindness in the judgment of Adili Chibuike Ejike v Public Prosecutor) was in fact overwhelming compelling and raised profound legal significance, which led to leave being granted and a review heard by an enlarged 5-judge Court of Appeal, culminating in today’s landmark decision which would have an impact on other pending and future drug cases. If anything, the prosecutors are pointing fingers at themselves by raising frivolous arguments which are bound to fail from an objective perspective.
While the AGC’s statement noted Mr Ravi’s “insinuations” of the Prosecution being “overzealous” and “acted improperly”, and describing the latter to be false as far as I understand it, no evidence or arguments were raised to rebut these allegations. In any event, the points canvassed above and below were sufficient basis to justify Mr Ravi’s comments such that the Prosecution “really had no answer to them”.
I should also mention at this stage that I had earlier written an article in November 2018, shortly after Gobi was sentenced to death, questioning whether the Attorney-General had acted in the public interest by filing CA/CCA 20/2017. That article has since been deleted. Much as there is no duty on the part of the Prosecution to disclose reasons for taking certain courses of prosecutorial action (including filing of appeals), I shall now put the following paragraphs to them once again:
“The question is, has the AG acted in public interest and good faith in seeking an outcome favourable to them at the expense of a human being’s life? In this regard, the public interest element certainly requires the AG to have also considered the facts and circumstances of the case, including the plight and reasons behind the accused committed the offence.
In this case, Gobi transported the drugs into Singapore on instructions, because he needed a large sum of money for his daughter’s operation; before that, he had repeatedly abstained from doing so on numerous occasions. This is really one of the cases most deserving sympathy and compassion, when viewed in light of precedents where the AG had exercised its discretion to reduce a capital drug charge to a non-capital one.
What renders this case so exceptional that the AG insists the full brunt of the law be imposed on Gobi? What makes it different from the precedents where the Prosecution exercised its discretion to save the accused from the death penalty? Is the public interest being served by pressing on for the ultimate punishment? …”