Criminal Procedure, Evidence and Sentencing

Citation(2015) 16 SAL Ann Rev 396
Published date01 December 2015
AuthorMOHAMED FAIZAL Mohamed Abdul Kadir LLB (Hons) (National University of Singapore), LLM (Harvard); Attorney and Counsellor-at-law (New York); Director & Deputy Senior State Counsel/Deputy Public Prosecutor, Criminal Justice Division, Attorney-General's Chambers. LEE Jwee Nguan LLB (Hons) (National University of Singapore), LLM (NYU), LLM (National University of Singapore); Advocate and Solicitor (Singapore); Director (Legal & Enforcement), Competition Commission of Singapore.
Date01 December 2015
CRIMINAL PROCEDURE
Section 33B of the Misuse of Drugs Act

14.1 In the preceding two iterations of this review, there has been extensive discussion on various strands of satellite litigation that had sought to challenge both the processes, and the legitimacy, surrounding the legislative changes that were introduced in Parliament as part of a recalibration of the mandatory death penalty regime in 2012 (as illustrative examples, see (2013) 14 SAL Ann Rev 302 at 325–328 and (2014) 14 SAL Ann Rev 295 at 303–311). It would be fair to say that much of the litigation in this regard had coalesced around various facets of s 33B of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘MDA’), which was introduced by the Misuse of Drugs Act (Amendment) Act 2012 (Act 30 of 2012) (‘the Amendment Act’). These changes afforded the courts discretion to sentence individuals convicted of certain offences that would have hitherto resulted in the imposition of capital punishment to life imprisonment upon satisfying certain strict predefined conditions. Given the weighty issues that invariably arise in such proceedings, and the reality that the failure to satisfy the predefined criteria necessarily results in the imposition of the death penalty, it should come as no surprise that last year brought forth a suite of further judicial challenges surrounding these legislative changes.

14.2 The first case, Quek Hock Lye v Public Prosecutor[2015] 2 SLR 563 (‘Quek Hock Lye’), involved the filing of a criminal motion by an applicant who contended that the death penalty that had been imposed on him previously (and for which an appeal lodged by the applicant to the Court of Appeal at the material time was dismissed on the merits) ought to be set aside (and life imprisonment imposed in its place) on the premise that the transitional provisions envisioned under the legislation in question, found under s 27(6) of the Amendment Act, had retrospectively put some members of the same class (that is, in this case, persons who have been convicted of trafficking more than 15g of diamorphine and sentenced to death prior to the passage of the Amendment Act) in a better position after conviction and sentence than others who were under that same class, rendering it inconsistent with Art 12(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Constitution’). By way of context, and for ease of reference, s 27(6) of the Amendment Act allows individuals in the position of the applicant who had been sentenced to the death penalty for certain offences under the MDA and whose appeals had been dismissed prior to the legislative amendments to apply for resentencing and to be considered for life imprisonment in the event that the applicant satisfies certain legislatively predefined criteria. The respondent resisted the application on both procedural and substantive grounds.

14.3 The Court of Appeal dismissed the criminal motion. On the matter of the respondent's preliminary procedural objection that although the application took the form of a criminal motion, it was in substance an attempt by the applicant to reopen or revisit the issue of the death sentence imposed on him, the court, while agreeing, nonetheless indicated its willingness to consider the substantive merits of the criminal motion. The court reached this conclusion in view of the fact that the application raised a constitutional issue vis-à-vis a capital offence and the reality that the point that had been raised by the applicant could not have been raised during the prior proceedings given that the Amendment Act only came into existence after those proceedings had concluded: Quek Hock Lye at [22]–[24].

14.4 On the matter of the substantive merits, however, the court found the exact thrust of the applicant's arguments difficult to comprehend since the contentions being advanced were internally inconsistent and, even assuming they were valid, did little to achieve the ends presumably intended by the applicant. On the matter of the applicant's stated complaint that s 27(6) of the Amendment Act operated retroactively to afford different treatment to individuals previously within the same class, the court noted that the applicant necessarily had to retract this argument during oral submissions since the upshot of such an argument would be that the applicant would be unable to invoke the law for resentencing and the sentence of death (which would have been imposed prior to the introduction of the changes brought about by the Amendment Act) would therefore remain. In the same vein, the alternative argument – that the criteria or differentia adopted in s 27(6) of the Amendment Act did not bear a rational relation to the object sought to be achieved by the MDA – was similarly problematic since, even assuming such argument were valid, it would follow that the Amendment Act would be void to the extent of such inconsistency. This would essentially result in the resentencing process not being available to offenders like the applicant, and, once again, the maintenance of the death penalty imposed prior to the introduction of the Amendment Act. The court noted that its views in this regard about the fact that the application was of no benefit to the applicant, whatever the outcome, were further corroborated by the applicant's attempt to cast the object of the application as being to give ‘Parliament a chance to re-consider the law in the event that s 27(6) of the Amendment Act was ruled to be unconstitutional’ upon realising the practical implications of the arguments being advanced (as set out above): Quek Hock Lye at [25]–[26].

14.5 In any event, the court concluded that there was no merit in the assertion by the applicant that s 27(6) of the Amendment Act was at odds with Art 12(1) of the Constitution. On this front, the court noted that under the established ‘reasonable classification’ test, a differentiating measure prescribed by legislation would not be held to be inconsistent with Art 12(1) if the classification prescribed by the legislation is founded on an intelligible differentia and if such differentia bears a rational relation to the object sought to be achieved by the legislation in question: Quek Hock Lye at [27] and [28]. In this regard, the court observed that the differentia in s 33B of the MDA (which was passed into law by virtue of s 27(6) of the Amendment Act) was plainly founded on intelligible differentia in so far as the criteria set out in s 33B all bore a clear distinguishing character and certainly could not be said to be illogical or incoherent, and that they bore a reasonable relation to the social object of the MDA in that there was nothing unreasonable about not imposing the death penalty on an offender who played a relatively restricted role and either had his responsibility substantially impaired by reason of a mental condition or allowed the Central Narcotics Bureau (‘CNB’) to reach further into drug networks by obtaining assistance in disrupting drug-trafficking activities. As all that was required under the ‘reasonable classification’ test was for there to be a rational relation between the differentia and the law in question, and not a ‘complete coincidence’ between the two, or that it served as the best differentia possible, it necessarily followed that the test was satisfied in this case: Quek Hock Lye at [31]–[37].

14.6 Rosman bin Abdullah v Public Prosecutor[2015] SGHC 287, on the other hand, involved a criminal motion filed by the applicant who was previously convicted of a capital charge of trafficking diamorphine and who sought to be resentenced under s 27(6) of the Amendment Act. In seeking to be resentenced, the applicant urged the court to resentence him to life imprisonment on the premise that he fell under the circumstances articulated in s 33B(2) of the MDA in that he was nothing more than a ‘courier’ of the drugs and that he had substantively assisted the CNB in disrupting drug-trafficking activities within or outside Singapore. Of especial interest for the purposes of this review is the contention advanced by the applicant as to how he satisfied the requirement under s 33B(2) of the MDA that the ‘Public Prosecutor certifies … that … the person has substantively assisted’ the disruption of drug-trafficking activities despite the fact that the Public Prosecutor declined to provide such certification. While accepting that such decision on the part of the Public Prosecutor had not been made with bad faith or malice, the applicant nonetheless urged the court to construe the meaning of the words ‘substantively assisted’ so as to assist him in making representations to the Public Prosecutor to persuade him that he (that is, the applicant) had indeed provided substantive assistance and should be granted the certification in question. In particular, the applicant contended that an individual could be said to have substantively assisted not only when the information provided disrupted drug-trafficking activities but also where such information bore the potential of doing so.

14.7 Tay Yong Kwang J declined to do so, concluding that the phrase ‘substantively assisted’ in the context of s 33B of the MDA was not amenable to judicial interpretation. Noting the fact that the parliamentary debates that suggest that Parliament considered the question of whether the phrase should be further defined and declined to do so, Tay J concluded (at [27]–[31]) that a court-prescribed definition would, in effect, be tantamount to interference with the Public Prosecutor's decision-making process as it would be telling the Public Prosecutor what or what not to do. Tay J also noted that any such attempt at a definition was likely to give rise to an infinite number of such applications seeking similar directions as to whether some fact (that arose in that particular case) ought to be considered or excluded in such an equation. This, Tay J concluded, was...

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