By Leong Li Jie
Time and again, Parliament and the judiciary have defended our laws permitting the mandatory death penalty (or MDP in short). Enshrined in s. 302 of the Penal Code (Cap 224, 2008 Rev Ed Sing) and the Second Schedule of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed Sing), the MDP (or more accurately the statute that the MDP is enshrined in) requires that a court sentence a murderer1 or a drug trafficker2 to death. The MDP also appears in other legislation such as the Arms Offences Act (Cap 14, 2008 Rev Ed Sing)3 and the Internal Security Act (Cap 143, 1987 Rev Ed Sing)4.
Before we proceed further, it should be noted that the MDP and the death penalty are not one and the same. While both involve the death sentence, the death penalty is discretionary as a sentencing option. For instance, s. 3 of the Kidnapping Act (Cap 151, 1999 Rev Ed Sing) allows a court to impose life imprisonment and caning in lieu of the death penalty. Such discretion was exercised in Sia Ah Kew v Public Prosecutor,  SGCA 2; [1974-1976] SLR (R) 54 where the Court of Appeal overturned the death sentences of five kidnappers in favour of a life sentence and caning. Conversely, the MDP, as the word ‘mandatory’ suggests, is non-discretionary.
Unsurprisingly, the MDP has attracted much controversy. Faced with its first constitutional challenge in 19805, local courts (and the Privy Council) has since heard a number of attempts6 to abolish the MDP. In all of these attempts (of which none were successful), it was argued the MPD is unconstitutional and inhuman7 in that mandatory punishments cannot be mitigated.
The courts have stood their ground, deferring to Parliament and public policy. If Parliament believed that the MDP was necessary, then all that a court should do is to apply the MDP8. Parliament, in support of the MDP and death penalty in general, has reiterated on many occasions that the MDP deters crime9. Indeed, when Parliament relaxed the MDP in its recent amendments to the Penal Code (i.e. Section 302) and the Misuse of Drugs Act (i.e. Section 33B), Parliament noted that despite the amendments the deterrence value of the MDP remains a cornerstone of our laws10.
Many, including the eminent Professor Roger Hood11, have however criticised the MDP’s deterrence value. A criminologist, Professor Hood devoted his life to the study of the death penalty and has conducted studies on the death penalty and the MDP in several jurisdictions across the world. One of his more recent studies involved how the Malaysian public perceived the MDP and whether the Malaysian government’s twin policy rationales of deterrence and public support for the MDP were justified12.
This study, which was commissioned by The Death Penalty Project13, was predicated on survey responses collated from Malaysians of different social strata. Respondents were first asked if they supported or opposed the MDP. Respondents were then given a number of scenarios containing either a mitigating or an aggravating factor and were asked if they would sentence the person accused to death. An example of a mitigating and an aggravating scenario is as follows14:
A woman deliberately poisoned her husband, who died, so that she could be free to live with her lover.
A woman, who had been abused by her husband for many years, decided to kill him by deliberately poisoning his food.
The survey results were eye-opening. While 56% and 32.4%15 of the respondents stated that they were in favour of the MDP for murder and drug trafficking offences respectively (when asked if they supported or opposed the MDP), only 8%16 and 8%17 stated that they would mandatorily impose the death penalty for all the murder and drug trafficking scenarios – aggravating and mitigating – presented to them. In another portion of the survey, participants were asked for the reasons as to why they supported the MDP. Again, to some surprise, only 32% and 25%18 of the respondents stated deterrence as the main reason for their support of the MDP for murder and drug trafficking offences.
Put simply, the survey, as the esteemed professor himself claims, demonstrates that the Malaysian public does not support the MDP unequivocally or believes that the MDP deters crime. Consequently, the claims of deterrence and public support, as according to the survey, were doubtful, and Professor Hood urged the Malaysian Parliament to abolish the MDP19.
In a recent visit to Singapore20, Professor Hood suggested that the Singapore Parliament do the same. However as no such survey has been conducted in Singapore (especially one that could rival Professor Hood’s), we should not be too quick to pass judgment. And even if public opinion were sought, we need to understand that public opinion is not the law (although public opinion may help shape the law). There are many other factors – social, political, economic, and legal – which Parliament needs to consider. Till such satisfaction is reached, the MDP is likely to be here to stay.
Leong Li Jie, 22, is a second-year student at the National University of Singapore (Law) and the vice-president of the NUS Criminal Justice Club, which manages the Innocence Project.
1Before Section 302 was amended, the mandatory death penalty applied to all murder cases irrespective of the subsection involved (different subsections provided for different levels of mens rea.). After the amendments were passed, courts now have the discretion to sentence an offender to life imprisonment in lieu of the death penalty when faced with a Section 300(b), (c) or (d) type of murder. A Section 300(b), (c) or (d) type of murder involves a lesser mens rea than that of Section 300(a) which requires the intention to kill. Consequently, the offender is considered to be less ‘culpable’.
2Or more specifically, drug traffickers who traffic more than what the law considers to be a ‘threshold’ amount. With the new Section 33B of the Misuse of Drugs Act, offenders who prove to the satisfaction of the courts that they were only couriers and who are awarded a certificate of cooperation may have their death sentences commuted to life imprisonment.
3Sections 4, 4A and 5.
5Ong Ah Chuan v Public Prosecutor  SGPC 6; [1979-1980] SLR (R) 710.
6Many of these attempts arose from the same appellant. In all, Singapore has seen 3 distinct cases – Ong Ah Chuan, Nguyen Tuong Van and Yong Vui Kong. Ong Ah Chuan and Nguyen Tuong Van have since been sentenced to death. Yong Vui Kong recently received a certificate of cooperation from the Attorney-General’s Chambers and upon judicial review had his death sentence commuted into life imprisonment and caning under the new Section 33B of the Misuse of Drugs Act.
7E.g. Yong Vui Kong v Public Prosecutor  SGCA 20;  3 SLR 489 at  – .
8Ibid at  – .
9Parliamentary Debates Singapore: Official Report, vol 89 (14 November 2012) (DPM Teo Chee Hean).
10Ibid. In particular, note the following statement by DPM Teo Chee Hean: “the policy intent of this substantive cooperation amendment [i.e. Section 33B of the Misuse of Drugs Act] to our mandatory death penalty regime is to maintain a tight regime while giving ourselves an additional avenue to help us in our fight against drugs, and not to undermine it… [Otherwise], we would [be undermining] our strict penalty regime and its deterrence value.”
11Professor Roger Hood is Professor Emeritus of Criminology at the University of Oxford and Emeritus Fellow of All Souls College.
12Roger Hood, The Death Penalty in Malaysia: Public Opinion on the mandatory death penalty for drug trafficking, murder and firearm offences (London: The Death Penalty Project, 2013).
13The Death Penalty Project is an organisation that seeks, inter alia, to keep the use of the death penalty in line with international minimum legal requirements and to provide legal representation for those facing the death penalty. Founded in 1992 in London, the organisation works closely with defence counsel from all over the world. Notably, the organisation provided support to the high profile case involving Yong Vui Kong. More information may be found at the following website: The Death Penalty Project Limited, The Death Penalty Project, online: The Death Penalty Project http://www.deathpenaltyproject.org.
14Roger Hood, The Death Penalty in Malaysia: Public Opinion on the mandatory death penalty for drug trafficking, murder and firearm offences (London: The Death Penalty Project, 2013) at 17 – 18.
15Ibid at 11. 32.4% is the average for the trafficking of 5 different kinds of drugs – heroin, cocaine, amphetamine, cannabis and opium.
16Ibid at 21.
17Ibid at 16.
18Ibid at 27.
19Ibid at 36.
20Professor Hood visited Singapore on 9 July 2013 and gave a short address to a group of students, academics, and legal practitioners about the survey he conducted in Malaysia.