Corrections regarding false statements concerning legal processes for Prisoners Awaiting Capital Punishment and the prosecution of drug trafficking charges

The Ministry of Home Affairs (“MHA”) is aware of the following publications that contain false statements of fact concerning the legal processes for Prisoners Awaiting Capital Punishment (“PACPs”) and the prosecution of drug trafficking charges in relation to Mohammad Azwan bin Bohari (“Azwan”):

• Transformative Justice Collective (“TJC”) article published on its website on 2 October 2024 (“TJC’s article”);

• TJC’s Facebook, Instagram, TikTok and X posts on 2 October 2024; and

• Kokila Annamalai’s (“Kokila”) Facebook and X posts on 2 October 2024 and 3 October 2024 respectively.

Those publications contain the following false statements:

1. The Government schedules and stays executions arbitrarily and without regard for due legal process.

2. The State does not bear the legal burden of proving a drug trafficking charge against the accused person.

Facts:

Facts pertaining to Azwan’s case

• Azwan was accorded due legal process. His execution was not scheduled or stayed arbitrarily.

• Azwan was arrested on 17 October 2015 and underwent trial in the High Court (“HC”). The HC considered the evidence adduced at trial and the arguments put forth by the Prosecution and Azwan’s lawyers. He was convicted after the trial and was sentenced to death on 11 February 2019 for possessing not less than 26.5g of diamorphine for the purpose of trafficking.

• His appeal against his conviction and sentence was dismissed by the Court of Appeal (“CA”) on 24 October 2019. He was represented by legal counsel for the trial and the appeal, provided under the Legal Assistance Scheme for Capital Offences (“LASCO”).

• His applications for clemency were denied by the President on 23 March 2020 and on 15 June 2022.

• Since his appeal against conviction and sentence was dismissed in October 2019, Azwan has been a joint applicant with other PACPs in three legal proceedings. All of these proceedings were dismissed by the HC and/or CA as they were found to be unmeritorious. In one of these applications, the Court found that the application was an abuse of the court process.

• On 12 April 2024, Azwan was given notice that his execution was scheduled on 19 April 2024. At that point, he was only involved in one pending court application, i.e. HC/OA 306/2024 (“LASCO application”), where he and other PACPs sought a declaration that the policy of not assigning LASCO counsel for post-appeal applications was unconstitutional. The LASCO application did not seek a stay of execution.

• On 16 April 2024, three days before his scheduled execution, Azwan filed a Criminal Motion (“CM 14”) to the CA seeking a stay of execution on the basis that he was involved in the LASCO application. On 17 April 2024, the CA allowed CM 14 and ordered a stay of execution pending the outcome of the LASCO application. The LASCO application was struck out by the HC on 20 May 2024. Azwan and the other PACPs appealed against the HC’s decision and the CA dismissed the appeal on 9 September 2024.

• On 19 September 2024, Azwan together with 30 other PACPs filed a fresh application (“OA 972”) challenging the constitutionality of certain provisions introduced under the Post-appeal Application in Capital Cases Act 2022. OA 972 was a civil application which had no bearing on Azwan’s conviction and sentence, and did not seek a stay of execution.

• On 30 September 2024, Azwan was given notice that his execution was scheduled on 4 October 2024.

• On 1 October 2024, three days before his scheduled execution, Azwan filed another application for a stay of execution (“CM 40”). Azwan’s basis for filing CM 40 was that, amongst other reasons, OA 972 was still pending and he intended to file a “review application” against his conviction after OA 972 had been determined by the Court. On 3 October 2024, the CA dismissed CM 40. In its judgment, the CA found that Azwan’s “intended review application [had] no prospect of success whatsoever and there [was] no basis for the Court to stay his execution to await the outcome in OA 972”.

• Accordingly, Azwan’s execution was carried out on 4 October 2024.

• Executions are only scheduled when a prisoner has exhausted all rights of appeal and the clemency process. Some PACPs have repeatedly filed last-minute applications to prevent the punishment from being carried out. Whether a stay of execution should be granted is decided by the Courts. Any last-minute stay of execution is therefore a result of the prisoner’s own decision to file applications late. They are, contrary to what has been (falsely) alleged, not decided arbitrarily by the Government.

• In Azwan’s case, he filed two last-minute applications to stay the execution of his sentence – the first in April 2024 (i.e. CM 14) was allowed by the Court and his execution was stayed; the second in October 2024 (i.e. CM 40) was rejected by the Court. Azwan’s execution was not arbitrarily scheduled and stayed, nor without regard for due legal process.

The Prosecution always bears the legal burden of proving a drug trafficking charge against the accused person

• In all criminal cases, the Prosecution bears the legal burden of proving the charges against an accused person beyond a reasonable doubt. This also applies to offences under the Misuse of Drugs Act 1973 (“MDA”), including drug trafficking.

• Under Section 17 of the MDA, anyone who is proved to have possessed specific amounts of controlled drugs is presumed to have possessed those drugs for trafficking. Even where the Prosecution relies on this presumption, it still bears the legal burden of proving the material elements of the charge, i.e. the fact of possession and knowledge (of the nature of the drugs), beyond a reasonable doubt. The use of presumptions is only an evidential tool to prove certain elements of an offence upon proof of a predicate fact. Such presumptions can be rebutted if the accused person is able to show, on a balance of probabilities, that he or she was not trafficking in drugs.

The false statements could erode public trust in the Singapore Government and our criminal justice system.

The Minister for Home Affairs has instructed the Protection from Online Falsehoods and Manipulation Act (POFMA) Office to issue POFMA Correction Directions to TJC’s article, TJC’s FB, IG, TikTok and X posts, and Kokila’s FB and X posts; and for a Targeted Correction Direction be issued to TikTok Pte Ltd. The Correction Directions require the recipients to insert a notice against the original post, with a link to the Government’s clarification. TikTok will also be required to communicate a correction notice to all end-users in Singapore that had accessed the TikTok post. We advise members of the public not to speculate and/or spread unverified rumours.