Case Highlight on Public Prosecutor v. Sulaiman Damanik and Another [2008] SGDC 175 and Public Prosecutor v. Tang Wee Sung [2008] SGDC 262

CHERYL CHAI
First Year NUS Law, Associate Editor, SLR

In the first prosecution against illegal human organ trade in Singapore, two Indonesian men, Sulaiman Damanik and Toni, were convicted on 2 July 2008 of selling their kidneys to two Singaporeans, Tang Wee Sun and Juliana Soh respectively. District Judge Bala Reddy held that Sulaiman and Toni had committed an offence punishable under s. 14(1) read with Section 14(2) of the Human Organ Transplant Act (HOTA) Cap 131A “Prohibition of Trading in Organs and Blood”. Toni had also committed an abetment offence, under s. 109 of the Penal Code (Cap. 224), by acting as a liaison between Sulaiman and the middleman Wang Chin Sing.

This landmark case raised two different issues in the Singapore court and in Parliament. While parliamentary debates centered on the issue of legalising organ sale, this was not a question within the court’s purview. Instead, the court was concerned with what mitigating factors it should consider when meting out just sentences for the offenders.

Reddy DJ was guided by three principles on sentencing. First, judges should assess the individual circumstances related to each offence and offender. This principle is reflected in Reddy DJ’s statement, “Justice will only be done if each individual in the human organ trafficking chain who is prosecuted, is punished according to the extent of his or her involvement in the arrangement and the degree of his or her culpability”. Second, statutory maximums are set by parliament to reflect the gravity with which the public views the associated offence; hence, judges should determine where “the offender’s conduct falls within the spectrum of punishment devised by Parliament” (per Judge of Appeal V K Rajah in Angliss Singapore Pte Ltd v PP [2006] 4 SLR 653). Under HOTA, the criminal offence of illegal organ supply is punishable with a fine of up to $10,000 or with imprisonment for a term not exceeding 12 months or with both. The third principle is that sentences are also meant to have a deterrent effect.

Acting on these principles, Reddy DJ imposed a low fine and short imprisonment on Sulaiman and Toni for selling their kidneys. The reason? They deemed victims and not perpetrators of illegal organ trade. Toni received a stiffer sentence for his offence of abetment of organ trade because he was profiteering from the sale by acting as the syndicate’s runner facilitating the trade. This ‘clear signal’ was sent with the intent of deterring others profiteering from exploiting the destitute via organ trade.

While this case examined the culpability of sellers and facilitators in illegal organ trade, the buyer, Tang, was charged under HOTA in a separate hearing on 3 September 2008. This conveys the strong message that HOTA applies to all parties involved in illegal organ trade.

This case also sparked parliamentary debates on the possibility of legalised organ trade in Singapore. Minister for Health, Mr Khaw Boon Wan, did not rule out such a possibility because a flourishing black market is but an inevitable corollary of criminalising organ trade. The law is unable to eliminate the demand for and supply of kidneys: the rich prefer kidney transplants to kidney dialysis due to the prospect of a better quality of life and the poor are willing to sell their kidneys for money. Black markets pose a large risk to the sellers because without regulation, there tends to lack a proper medical healthcare structure. Also, the middleman is at liberty of absorbing a large proportion of the compensation money given to the organ sellers who are usually poorly educated and ill-informed.

With the fifth highest kidney failure incidence rate in the world, Singapore’s shortage of suitable kidneys for transplant poses a fatal problem that warrants immediate practical solutions. Instead of debating over whether organ trade should be legal, perhaps the more pertinent question we should be asking is how a regulatory system of ethical organ sale, that not only eliminates the waiting list but also protects organ sellers from being disadvantaged, can be implemented.

Much near future though, Singapore is likely to amend HOTA to encourage more altruistic organ donation. Mr Khaw suggested learning from Spain and Norway, where organ donation schemes created an organ supply that almost met demand – a feat that Iran, the only country to legalise organ trading, did not even achieve. This suggests a possibility of meeting the high demand of organs without decriminalising organ trade, a move many still deem unacceptable on ethical grounds.