There has been much debate about Nagaenthran, the Malaysian drug trafficker who is on death row for illegally importing 42.72g of heroin. Here is a breakdown of the High Court (HC) case and the issues which the court had to consider. Do note that there was a Court of Appeal (CA) case that followed after this HC decision. The CA did not overturn the HC’s verdict to find Nagaenthran guilty of an offence under section 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (MDA).
In April 2009, Nagaenthran was arrested at Woodlands Checkpoint and was found to have on him 42.72g of heroin. The heroin was in a newspaper-wrapped bundle and strapped to his left thigh. It was concealed by the long pants that he was wearing.
He was subsequently charged with illegally importing into Singapore not less than 42.72g of diamorphine (i.e. heroin). This offence attracted the mandatory death penalty under section 33 of the MDA, read with the Second Schedule of the MDA (Unauthorised import or export of controlled drug containing such quantity of diamorphine being more than 15 grammes).
As the diamorphine was in his possession, it was presumed that Nagaethran knew the nature of the drug (Section 18(2) of the MDA).
The two issues before the court were whether Nagaethran knew of the nature of the drug and whether he had delivered the drugs under duress.
Issue 1: Whether the defence of duress could be applied
The general defence of duress is set out in section 94 of the Penal Code (Cap 224, 2008 Rev Ed).
Act to which a person is compelled by threats
94 Except murder and offences against the State punishable with death, nothing is an offence which is done by a person who is compelled to do it by threats, which, at the time of doing it, reasonably cause the apprehension that instant death to that person or any other person will otherwise be the consequence:
Provided that the person doing the act did not of his own accord, or from a reasonable apprehension of harm to himself short of instant death, place himself in the situation by which he became subject to such constraint.
The Court applied the “ingredients of the defence of duress” as explained in the case of Public Prosecutor v Ng Pen Tine  SGHC 230 at .
i) The harm that the accused was threatened with was death;
ii) The threat was directed at the accused or other persons which would include any of his family members;
iii) the threat was of ‘instant death’;
iv) the accused reasonably apprehended that the threat will be carried out;
v) the accused had not, voluntarily or from a reasonable apprehension of harm to himself short of instant death, placed himself in that situation.
The Court also noted that “the standard of proof necessary for the defence of duress to succeed is that of a balance of probabilities”.
Nagaenthran claimed that he had delivered the bundle of drugs because he feared that his girlfriend would be killed by King if he did not do so. He claimed that King had claimed to “finish” and “kill” his girlfriend when Nagaenthran resisted King’s efforts to strap the bundle of drugs on his thigh. However, when Nageanthran was arrested by the CNB officers, he did not mention this threat. Instead, when asked why he delivered the heroin, he stated that he owed King money and he was promised to be paid $500 after the delivery.
The Court did not believe Nagaenthran’s account as given that it involved his girlfriend whom he claimed he was deeply in love and she was under threat and yet he omitted this fact when first questioned.
The Court went on to explain that even if it were to accept Nagaenthran’s version of facts to be credible, the defence of duress would still not be made out. There was no indication that King was an “influential and powerful gangster” who could keep watch and kill Nageanthran’s girlfriend upon command. Moreover, when questioned, Nageanthran himself gave the opinion that King “doesn’t look like” and was “not such a person” who would engage in illicit activities like dealing with drugs (at ).
Issue 2: Whether Nagaethran knew of the nature of the drug
The Court found that the statements made to the CND officers were accurate. Nageanthran had made statements that showed that he had actual knowledge that the bundle on him contained heroin. The defence had relied on the same set of facts in support of Nageanthran’s defence of duress. The Court had already decided that this account was untrue in dealing with the first issue. Thus, Nagaenthran had no other defence to rebut the presumption of knowledge in Section 18(2) of the MDA.
The Court thus decided that Nagaenthran was guilty of the offence as charged and as he was convicted, the mandatory death penalty applied.
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