High Court found Malaysian drug trafficker did not have mild intellectual disability: Singapore envoy

The High Court had specifically considered whether the drug trafficker met the diagnostic criteria for intellectual disability. ST PHOTO: KUA CHEE SIONG

SINGAPORE - Singapore's envoy to the United Nations in Geneva made clear on Thursday (Nov 11) that the High Court had found Nagaenthran K. Dharmalingam, a Malaysian facing execution for drug trafficking, was of borderline intellectual functioning but did not suffer from mild intellectual disability.

Ambassador Umej Bhatia was responding to a joint urgent appeal from four special UN rapporteurs, who on Oct 29 called on Singapore to definitively halt Nagaenthran's execution, saying he had psychosocial disabilities.

He was scheduled to be hanged on Wednesday (Nov 10), but was granted a stay of execution on Tuesday by the Court of Appeal after he tested positive for Covid-19 before the start of his appeal hearing.

In his reply, Mr Bhatia said that the High Court had, at Nagaenthran's resentencing hearing several years ago, specifically considered whether he met the diagnostic criteria for intellectual disability under the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), which included, among other things, deficits in intellectual and adaptive functioning.

Nagaenthran had filed the application in February 2015, and the High Court, which dismissed it in September 2017, found that he did not suffer from mild intellectual disability.

"In coming to this finding, the High Court noted that the DSM-V stated that 'IQ test scores are approximations of conceptual functioning but may be insufficient to assess reasoning in real life situations and mastery of practical tasks'," said Mr Bhatia.

He added that among the evidence considered was the testimony of Nagaenthran's own psychiatric expert, who agreed that he was not suffering from any intellectual disability.

"The High Court and Court of Appeal held that Nagaenthran clearly understood the nature of his acts and did not lose his sense of judgment of the rightness or wrongness of what he was doing," said Mr Bhatia.

"Despite knowing the unlawfulness of his acts, he undertook the criminal endeavour so that he could pay off some part of a monetary debt. The Court of Appeal found that this was the working of a criminal mind, weighing the risks and countervailing benefits associated with the criminal conduct in question, and that Nagaenthran took a calculated risk which, contrary to his expectations, materialised.

"It was a deliberate, purposeful and calculated decision on Nagaenthran's part to take the chance," he added.

The UN human rights experts - Mr Morris Tidball-Binz, Mr Gerard Quinn, Mr Felipe González Morales and Mr Nils Melzer - had also claimed that the use of the death penalty for drug crimes is incompatible with international law, and said the punishment should only be imposed for the most serious crimes.

"Drug related offences do not meet this threshold," they said. "Resorting to this type of punishment to prevent drug trafficking is not only illegal under international law, it is also ineffective."

Mr Bhatia replied that there is no international consensus for or against the use of the death penalty, or on what constitutes the "most serious crimes".

He said: "It is the sovereign right of every country to decide the use of capital punishment for itself, considering its own circumstances and in accordance with its international law obligations."

Singapore also responded to other assertions by the experts, who claimed that life and death decisions are left in the hands of the Public Prosecutor, that Nagaenthran's family members were given a long list of Covid-19 rules to follow, and that they were not permitted to take public transport to visit him in prison.

Responding to the first allegation, Mr Bhatia said the Public Prosecutor carries out its duties independently of the Government, but its discretion is not unfettered and can be subject to judicial review.

He noted that the Public Prosecutor's decision not to issue a certificate of substantive assistance was challenged by Nagaenthran, and his challenge was considered and dismissed by both the High Court and the Court of Appeal.

As for the allegations relating to Nagaethran's family, Mr Bhatia said the requirements they have to adhere to reflect Singapore's prevailing Covid-19 protocols, which apply to all travellers entering Singapore from Malaysia during this period.

He added that the Singapore authorities have been in close contact with the family members to guide them on the process and facilitate their entry into Singapore and their stay here.

The UN experts had also asked Singapore to honour its commitment to release data on the death penalty.

Mr Bhatia said Singapore publishes the number of judicial executions carried out every year in the Singapore Prison Service's (SPS) annual statistics release, and that the latest statistics for 2020 could be found on the SPS' website.

A check found that there were 13 executions carried out in 2018, four in 2019 and none last year.

Nagaenthran was arrested in 2009 at the age of 21 with a bundle of heroin strapped to his thigh. He was sentenced to death by the High Court in 2010 after being convicted of trafficking 42.72g of heroin, and his appeal was dismissed in 2011.

His appeals against two subsequent High Court applications were dismissed in 2019.

Nagaenthran is currently seeking to challenge his execution, contending he has the mental age of a person below 18.

The court has adjourned the hearing to a date to be fixed and issued a stay of execution until all proceedings are concluded.

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