Sunday, September 15, 2013

HAS THE SYSTEM FAILED FOR DINESH RAMAN?


Senior prison officer Lim Kwo Yin was fined $10,000 for failing to exercise adequate supervision, resulting in the death of a 21-year-old inmate:

One view is that this is too lenient a punishment without a jail sentence for causing death. I do not know whether there was any precedent of a person negligently causing death being let off with only a fine. The death victim was someone only 21 years old – Dinesh Raman Chinnaiah. We do from time to time hear stories of hardened criminals turning around. Only recently in the news this month was the inspiring story of a former gangster Mr Darren Tan who became a lawyer despite having been through reformative training centre, two prison sentences spanning more than 10 years and caning. Certainly, Dinesh’s parents would still have entertained hope that their young adult son would still have a future. Alas, his life was unlawfully cut short!

Another view, as expressed by this blog’s reader @Andy, is that the verdict is right: “Criminals vs law abiding civil servant. I am on the side of good. We have gone too soft on criminals resulting in recent rioting cases with dangerous weapons.”

With regards to @Andy’s view, my rejoinder would be that being on the side of good and going hard on criminals does not imply that there is licence to take a life illegally. For the sake of argument, if the failure of the senior prison officer was defensible, might not the fine of $10 000 with a permanent record be considered harsh on a dutiful young officer doing his job? Should the Attorney General then consider an appeal?

Talking about appeal, I imagine that there might be a case. Based on news report, my understanding is that the prison officer being punished was not guilty of an act of using excessive force. Rather, he was guilty for a failure to act to provide adequate supervision. If he had done his job diligently in the provision of adequate supervision as expected of him, the death would not have occurred. Correct me if I am wrong, but my wonder is why his colleague prison officers who were directly involved in the use of excessive force on the prisoner was not charged with voluntary manslaughter (due to loss of control), involuntary manslaughter by gross negligence for causing the unnatural death or any more appropriate offence – depending on the degree of culpability? It appears that the senior officer charged was like a scapegoat while the other officers were assessed by the AG as not having committed any offence worthy of a charge.

Senior Minister of State for Home Affairs Masagos Zulkifli said, “Our officers are well-trained to handle various situations.”

Either we disagree with the Senior Minister of State whereby the prison authority should bear the blame and excuse the officers for insufficient training, or we should agree with the Senior Minister and therefore hold the prison officers who directly caused the death responsible for their failure to handle the situation suitably according to what they had been well-trained to do. Imagine the scenario of a few officers applying unlawful lethal force against instruction; it could be so lethal to cause instant grievous hurt that would later lead to death due to impairment of breathing. Would any supervisory over-ruling or intervention upon or after the act have caused any difference to the existence of criminal liability for the officers’ use of unlawful force (exceeding the prescription of procedures and protocols) that started the chain of physical consequences suffered by the victim? It is indeed a wonder that the other prison officers who mishandled the prisoner causing unnatural death has no criminal liability at all while only Lim Kwo Yin had to face the brunt of the law.

Now, the other side of the argument is that, without excusing the other prison officers, the senior officer Lim was being given too light a sentence not commensurate with the disproportionate force that he sanctioned by his act or omission. If this is the case, then the Attorney General should appeal for an enhancement of the punishment. Failure to do so would be remiss of justice to the bereaved family for the loss of a young member whom they still had hope would turn over a new leaf and have a hopeful future. According to report, the lawyer for Lim said that there was absolutely no motive for him to act in such a manner causing loss of life. If there was no motive at all for any act, whether lawful or unlawful, does it mean that he was acting like a robot without thinking? Logically, any act must come with a motive (or intent), even if the intent is not sufficient mens rea for an offence.

Lim displayed no emotion when charged and sentenced. This may point to a likely blank approach by an emotionless person that was “without motive” (i.e., without thinking) when taking on the aggressive prisoner, treating the prisoner as less than human deserving not an iota of concern for his (the prisoner) well-being. Could it be reasonable that the prisoner was also behaving “absolutely without motive” if he was unprovoked to pick on Sergeant Lee Fangwei Jonathan to kick?

Excuses, excuses! I am reminded of the recent case of “After calling 999, Police refused to help a lady who was assaulted by a drunk man”. The lady provided the police with the name of the road (Jln Ikan Merah), the name of the famous 24h Prata House, both within her sight and the fact that she was at Upper Thomson. Take a look at a map. If you put her actual position as centre and draw a circle enclosing Jln Ikan Merah and the Prata House, you should realize that the circle is quite small with every point in it within sight of every other point. Let’s look at the Police excuse of themselves and of the policewoman operator handling the distress call:

• The Police said that officers went down to where the distressed woman was within 15 minutes. If this was so, why didn’t the operator who sent the response team tell the woman that police were on the way to comfort her and ask her to be on the lookout for the police car while she continued with conversation to get more helpful details?

• The Police excused the operator by saying that she “acted correctly by attempting to narrow down the caller’s location”. As I mentioned above, the circle is already so small. Why was there a need to narrow down the caller’s location further before sending urgent help?

• Was it a failure of the call operator or the failure of her training? The Police’s reply suggested that the Police recognized the matter as the individual officer’s professional failure that could be rectified by giving her counseling. This means that the Police failed to nip the problem in the bud as they ignored the extant failure of the control room system which was actually wanting in adequate procedures and protocols to immediately avail supervisor’s help to the first-response phone operator so that the public would enjoy good and assuring emergency Police service.

Excuses, excuses! If not for the video evidence, the Nightingale Nursing Home’s and My First Skool’s assault cases would have been excused away too, according to basic instinct of self-preservation of the culprits.

Excuses, excuses! Back to the prison case, the Police were very slow in investigation when video evidences and testimonies of involved persons were readily available. The involved persons were captive in the Singapore Prison Service (SPS) employment and it would be unimaginable if a high-security environment was without 24h video surveillance or the video cameras were not functioning because they were not properly maintained. It is a great wonder that an efficient Police Force had to stretch the investigation from 27 Sep 2010 (date of offence) to 19 Jul 2013 (date of charge in court).

How can someone having committed a serious offence of causing death be fully excused from interdiction, even a temporary one while investigation was ongoing and precise guilt was not fully determined? Could it be that the SPS recognized at the start of investigation that the matter was a failure of the system and therefore it would not be fair to the senior prison officer to be interdicted? If so, would it be fair for him to bear for life the ignominy of a criminal record which would adversely affect his career should he leave the prison service? If the homicide case was worthy of a charge for which the senior officer was found guilty, why were the preceding actions of the other prison officers in over-restraining the prisoner not found contributory to his compromised condition leading to his death? Evidence has a tendency to become less clear with the passage of time, and the long time it took the Police to conduct its investigation of its law-enforcement counterpart may be blameworthy.

Whether you support the first view above (that the senior prison officer was too leniently let off with just a fine) or the second view that the sentence was right, it is clear that the system has failed either the senior prison officer or the bereaved family for losing a young son to unlawful force. Either way, the Attorney General ought to study the case and decide the merit of an appeal.