Saturday, 17 November 2012

Why drug kingpins avoid S'pore

Parliament on Wednesday amended the Misuse of Drugs Act. Under the new law, the death penalty will no longer be mandatory for drug trafficking under two specific conditions: First, if the trafficker only played the role of courier and had not been involved in other drug-related activities, and second, if the trafficker cooperated in a substantive way. Below is an edited extract of Law Minister K. Shanmugam's speech, in which he addressed issues and concerns raised by several MPs and NMPs.
Published The Straits Times, 16 Nov 2012

MY OWN view is the starting position has to be that the courts should have discretion.

How then should we approach the question of death penalty for serious drug offences? If we focus only on the trafficker and ask if mercy ought to be shown, the answer must be "yes". No one can disagree with that.

(But) the correct question has to look at the context and raise the following issues:

1) What is the nature of the drug menace, the nature of the beast that we're dealing with?

2) What are the risks we face as a country, as a society from this risk; how do we deal with these risks; what has to be our approach; what happens if we completely remove the mandatory death penalty and (leave it to) the discretion of the courts?

Are we prepared for the trade-offs and the risks? The answer depends on the level of risks and costs to society that you're prepared to accept. Let me take you through some data.

First, drug users globally have gone up from 180 million to 210 million in the last 10 years.

Second, every year between 100,000 and 263,000 people die due to drugs, with the mean age of their deaths at mid-30s.

We hardly ever hear tears shed in public for these 200,000 who die. But we shed a lot of tears for everyone on the death row. Compassion is important, but context is also important.

The fight worldwide against drugs is being lost. Drug syndicates are sophisticated MNCs, well-financed, international networks, very smart people at the helm, making huge profits and with good access to people who can act as couriers.

Singapore is a highly attractive destination, with people who can pay for drugs; it's a transport and tourism hub. Half a million people come here every day, or 182 million every year. It's logical for Singapore to become a drug hub or a major trans-shipment centre.

What is the impact of drugs in Singapore even with all of our tight laws? About two-thirds of local prisoners are drug addicts, drug offenders. Eighty per cent, eight out of every 10 prisoners, have drug antecedents - that is, they may be in for something else but they have drug antecedents.

Consider the impact on offenders, families, victims, society. And the youth abusers in Singapore show a worrying trend.

We take comprehensive measures against both supply and demand; and it involves education, early intervention for young abusers, strict border controls, tough enforcement, tough drug rehabilitation for first- and second-time abusers, long-term imprisonment after the third time, and of course the Criminal Law (Temporary Provisions) Act against syndicate members where witnesses fear to testify, and tough punishment, caning, imprisonment, mandatory death penalty.

The mandatory death penalty is not, cannot be the only solution. It has got to be part of a comprehensive framework to deal with the situation.

The consequence of our approach is that we are one of the few countries where the drug menace has been fought reasonably successfully, and I emphasise reasonably because this is not a fight you can say you've won. And you can easily lose it.

Drug kingpins avoid Singapore. There's no substantive production here. Couriers think twice before they try their luck. They try to keep below the threshold for capital punishment. We know this through intelligence.

Drug prices in Singapore - another market indicator - are comparatively high, purity levels comparatively low. Purity level is 4per cent, compared with Hong Kong's 57 per cent.

So when you debate the mandatory death penalty, look at it in this context: Why do drug kingpins avoid Singapore? Why is it difficult to get people to traffic drugs into Singapore?

Why is it traffickers often and deliberately keep below the limits for capital punishment? What will be the consequence of removing the mandatory death penalty?

Would there be more people willing to become couriers? And it's not difficult to get people in this region to become couriers: People who need money and drug abusers can be persuaded to become couriers. Not difficult.

Our stance on the death penalty is extremely well known: Traffickers face capital punishment. That sends a message and reduces the number of couriers.

You remove that fear, you remove that penalty, are we willing to take the risk of many more people becoming willing couriers?

In the context of drugs, the suggestion to give discretion to judges looks attractive. Of course, the approach is, maintain the death penalty for deterrence and allow for mercy in individual cases.

As I have said earlier, this is something that has concerned us deeply because, like the members, our preference would be to give more discretion to the courts, but we have looked at this carefully, discussed it with the agencies, the Attorney-General.

We discussed it with both Chief Justices Chan Sek Keong and Sundaresh Menon to see if it is possible to give more discretion. Their views were that if you want to give more discretion to the courts and if Parliament deems it necessary to make a drug offence punishable with the death penalty, it is preferable that the statutes set out as clearly as possible the circumstances under which the death penalty ought to be imposed.

And they have also said that while the courts will, of course, exercise any discretion in a principled and consistent manner, it is best that the legislature define in the clearest possible terms when the ultimate punishment is justified. So let us take it from there.

Think it through: How will we craft a legislative provision to give more discretion to the courts?

First, the quantum: 15g of diamorphine. Do we agree this is a serious threshold?

Once you agree on the threshold and if the elements of the offence are made out, then how would you have the court exercise discretion? On what basis?

Can we conceive of a discretionary sentencing approach that maintains the deterrent value of the death penalty across the whole spectrum of drug trafficking activities? With the best will in the world, I suggest it'll be difficult, if not impossible.

Consider age: Would you say youth? Young mothers? Impecuniosity? The trafficker was baited with love? Would you look at other family circumstances?

Set out the criteria and the drug lords will design the couriers in accordance with these criteria.

Trafficking is the crime. So while it is attractive in broad terms to talk about giving discretion, look at it in detail. How would it work? In murder, yes, you can look at it to see whether it's a crime of passion, you can look at the the individuals. How would you do it for drug trafficking in a way that does not affect the deterrent effect of the death penalty?

So be realistic and then post the question in realistic terms: Do you want de facto or at least substantial reduction in the deterrent value of the death penalty?

I'm not arguing that you cannot put that position forward, but at least then that will be a clearer, hard-headed approach, which analyses the real issue. Then, the question for members is: Is this a risk you're prepared to take in the context of the global and regional situation, and remove a key strategy in our fight against drugs?

And on couriers, there are many misconceptions. Let us be clear. They do this for money.

Let me now move onto cooperation, the question that has been raised by a number of members. On the first exception, that couriers who have substantively assisted the Central Narcotics Bureau (CNB) in disrupting drug trafficking activities could be spared capital punishment.

In looking at this, it seems to me that members may have asked themselves the question: "What can we do to help couriers avoid capital punishment?"

If that was the question, the solutions are very easy. The issue is not what can we do to help couriers avoid capital punishment. It is what can we do to enhance the effectiveness of the Act in a non-capricious and fair way, without affecting our underlying fight against drugs?

Discretionary sentencing for those who offer substantial assistance is the approach we have taken. For those who cannot offer substantive assistance, the position is as it is now.

Some members have asked: "Would it be better to say the courier has done his best, that he acted in good faith?"

The short answer is, it's not a realistic option because every courier, once primed, will seem to cooperate. We are dealing with an offence with a criminal organisation on the other side.

So if you say cooperate, your couriers will be primed with beautiful stories, mostly unverifiable, but on the face of it, they've cooperated. And the death penalty will then not be imposed, and you know what will happen to the deterrent value. Operational effectiveness will not be enhanced.

Will we be better off? We will be worse off.

As I started out, in these things, it's not as if there is one clear answer one way or the other. It is what we in this House consider to be important for our society and weighing the different approaches. But don't fool yourself that there are no trade-offs.

Mr Edwin Tong, Professor Eugene Tan, and Mr Desmond Lee said, are drug couriers in a position to provide substantive assistance? Fair point. Let me throw back the question. Assume the couriers are not able to help. What should be the penalty? That goes back to the fundamental question: Should there be the death penalty for couriers? That is the question you have to cross.

It is a difficult question but if you answer that and once you say yes to that, then you will see this change as making an exception to that position. Only those who qualify for the exception must be spared the death penalty.

On the second exception, on diminished responsibility, our view is that the law has been set out, genuine cases of mental disability are recognised, judgments have to be made, depending on the facts. And while genuine cases of mental disability would afford a defence, errors of judgment will not afford a defence. And the law is also capable of taking into account the progress of medical science in understanding mental conditions.

Let me conclude by making some broader points.

I have spoken several times about weighing the consequences in real terms before deciding what we do. Let's look at the situation of some real cases.

First, the case of Noinoi. In 2006, Mohd Ali Johari was charged for the murder of his two-year-old step-daughter, Noinoi. He admitted to slapping her, immersing her in water repeatedly. He was a father at 17, a marijuana smoker, cough syrup abuser, immature, deficient parent. He said he sometimes brought Noinoi home with him as he thought that she would help him avoid detection by CNB.

Look at "Nelly" and "Rose". Nelly (aged six) was placed under foster care after her mother, uncle and grandfather were arrested for drug consumption. She had been cared for by multiple caregivers and witnessed her mother taking drugs. Her sister, Rose, a newborn baby, was placed under foster care in 2010.

Look at "Ricky", nine years old, referred to MCYS in 2007 when his mother and stepfather were imprisoned for drug offences. Both had a long history of drug abuse. Father was also a drug abuser. Ricky was admitted to a children's home, where he was observed to have emotional issues and suicidal tendencies.

Last case I wanted to highlight. Girl, we call her "A", was arrested at the age of 16 for possession of meth. Drugs were given to her by her half-sister, now serving sentence for drug consumption, also by her mother's boyfriend.

Later, when her mother's boyfriend was incarcerated, she turned to her mother, who gave her heroin regularly. She has three half-brothers currently incarcerated for drug consumption. Five others arrested for consumption of drugs - friends of Girl A's mother - consumed drugs at her half-sister's residence. Total number of people involved in this group: 12.

We do need to show mercy and compassion to the traffickers but at the same time we also need to show mercy and compassion to the Noinois and the Roses and the Nellys and the Rickys of this world, and thousands of others like them. Young lives destroyed.

None of us really are there cheering for the death penalty or mandatory death penalty. It has to be a careful calibration of the risks that society faces and the punishments that can be imposed.

And if we go in any particular route, let's do it without hiding the truth from ourselves or by assuming that nothing else will change while we change certain penalties, except that if you change the penalties, there will be consequences.

Ask yourself whether we are prepared for the consequences, and if we honestly are prepared for the consequences, then we change.

I would suggest: Ask whether the changes we make, are they going to help the victims or are they going to hurt the victims? And firmness, clarity of purpose, and compassion to both the offenders as well as the victims.

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