Adnan bin Kadir v PP

• Jurisdiction: Singapore
• Judgment Date: 28 September 2012
• Date: 28 September 2012
• Docket Number: Magistrate's Appeal No 122 of 2012
• Court: High Court (Singapore)

Adnan bin Kadir

Plaintiff

and

Public Prosecutor

Defendant

[2012] SGHC 196

Chan Sek Keong CJ

Magistrate's Appeal No 122 of 2012

High Court

Criminal Law—Statutory offences—Misuse of Drugs Act—Accused importing drugs for personal consumption—Burden of proof in relation to purpose of importation—Whether Prosecution bore burden of proof—Whether Prosecution might rely on statutory presumption to shift burden of proof to accused—Sections 7 and 17 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Law—Statutory offences—Misuse of Drugs Act—Accused importing drugs for personal consumption—Whether offence of drug importation was established where accused did not import drugs for purpose of trafficking—Section 7 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

The appellant (‘the Appellant’) was arrested at the Woodlands checkpoint. He pleaded guilty to importing 0.01 g of diamorphine into Singapore from Johor, which was an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the current MDA’).

In mitigation, the Appellant (who was unrepresented) stated, inter alia,that the drugs were for his own consumption. The Senior District Judge (‘SDJ’) held that even if this were true it did not qualify the Appellant's plea of guilt. The SDJ sentenced the Appellant to the mandatory minimum sentence of five years' imprisonment and five strokes of the cane. The Appellant appealed against sentence on the basis, inter alia, that he had imported the drugs into Singapore for the purpose of personal consumption.

The Prosecution submitted that the offence of drug importation under s 7 of the current MDA was established even if the Appellant had imported the drugs for the purpose of personal consumption.

Held, setting aside the conviction and remitting the case to the District Court for a new trial to determine whether the drugs were imported by the Appellant for his own consumption:

(1) The legislative objective of the Misuse of Drugs Act 1973 (Act 5 of 1973) (‘the 1973 MDA’) and the amendments in 1975 to the 1973 MDA was to combat drug trafficking by imposing very severe penalties on drug dealers in order to deter the spread of controlled drugs in Singapore through trafficking. At the same time, the new legislative framework was intended to create and maintain a clear distinction between drug dealers and drug addicts: at [17].

(2) Section 9 A (1) of the Interpretation Act (Cap 1, 2002 Rev Ed) required a court to adopt a purposive approach in interpreting a statute. The courts had to always consider the purpose of the law and not simply the letter of the law: at [23] and [52].

(3) Section 2 of the current MDA defines ‘traffic’ as doing or offering to do one of the following acts: selling, giving, administering, transporting, sending, delivering or distributing. The courts had consistently held that where an accused person was charged with trafficking by transportation, it was not sufficient merely to prove that he had transported the drugs because he had to also have transported the drugs for the purpose of distribution to another person or persons. Parliament had not intended the scope of the offence of drug trafficking to include the situation where the accused person had transported drugs for personal consumption: at [47] and [48].

(4) The reasoning in the drug trafficking cases applied with equal force where the charge was one of importation. Parliament did not intend the scope of the offence of importation to include the case of the accused person bringing into Singapore drugs for his personal consumption. Interpreting the offence of importation to include importation for the purpose of personal consumption would be inconsistent with Parliament's intention to maintain the distinction between the more harmful activity to the general public of a drug trafficker and the less harmful activity of a drug addict bringing in drugs for his own consumption: at [50].

(5) In addition, interpreting the offence of importation to require that the importation be for the purpose of trafficking would not undermine the intention of Parliament to combat drug trafficking. Where an accused person imported for the purpose of personal consumption, he harmed himself and not the larger class of drug addicts. Construed in this way, the offence of drug importation under s 7 of the current MDA dealt with the cross-border trafficking (by transportation) of controlled drugs, while the offence of drug trafficking under s 5 of the current MDA dealt with the trafficking of controlled drugs within Singapore: at [51].

(6) The offence of importation, which increased the stock of drugs in a State, was potentially more harmful than the offence of trafficking an existing stock or supply of drugs which reduced that stock or supply over time. However, the higher potential harm of importation as compared to trafficking did not justify interpreting the offence of importation as being distinct from the offence of trafficking. Parliament had clearly intended to distinguish between drug dealers and drug addicts and the higher potential harm of importation only arose where the drugs were in fact imported for the purpose of trafficking: at [53] and [54].

(7) The burden was on the Prosecution to prove beyond a reasonable doubt that the Appellant had brought the drug into Singapore for the purpose of trafficking. If the Prosecution was unable to discharge this burden, the Appellant could only be convicted of the offence of unauthorised possession of a controlled drug under s 8 (a) of the current MDA: at [62].

[Observation: The 1973 MDA was intended to bring the control of dangerous drugs in line with those in force in other countries and to incorporate the different categories of control recommended by the United Nations into domestic law. The Single Convention on Narcotic Drugs 1961 (‘the Convention’) targeted the international trade in drug trafficking (ie, drug trafficking). On a purposive interpretation of the Convention, the word ‘import’ in Art 36 (1) of the Convention connoted the requirement of distribution or intended distribution to other persons for their consumption or onward trafficking: at [23], [24] and [27].

The offence of unauthorised exportation of controlled drugs under s 7 of the current MDA was committed only if the drugs were exported for the purpose of trafficking: at [50].

The offence of unauthorised manufacture of controlled drugs under s 6 of the current MDA was committed only if the drugs were intended for distribution to drug addicts within Singapore or outside Singapore: at [56].

The Prosecution might rely on the presumption under s 17 of the current MDA if an accused person was proved to have had in his possession a quantity of drugs which exceeded the specified amounts in s 17 of the current MDA, and he was charged with an offence of manufacturing under s 6 of the current MDA, or an offence of drug importation/exportation under s 7 of the current MDA. The burden would then shift to the accused person who would have to prove, on a balance of probabilities, that he had imported, exported or manufactured (as the case may be) for the purpose of personal consumption or for some other purpose wholly unconnected with trafficking: at [63].]

Abdul Karim bin Mohd v PP [1995] 3 SLR (R) 514; [1996] 1 SLR 1 (refd)

AOF v PP [2012] 3 SLR 34 (refd)

Chief Assessor v First DCS Pte Ltd [2008] 2 SLR (R) 724; [2008] 2 SLR 724 (refd)

Ko Mun Cheung v PP [1992] 1 SLR (R) 887; [1992] 2 SLR 87 (refd)

Lau Chi Sing v PP [1988] 2 SLR (R) 451; [1988] SLR 106 (folld)

Ng Kwok Chun v PP [1992] 3 SLR (R) 256; [1993] 1 SLR 55 (refd)

Ng Yang Sek v PP [1997] 2 SLR (R) 816; [1997] 3 SLR 661 (refd)

Ong Ah Chuan v PP [1979-1980] SLR (R) 710; [1980-1981] SLR 48 (folld)

PP v Ko Mun Cheung [1990] 1 SLR (R) 226; [1990] SLR 323 (refd)

PP v Lau Chi Sing [1987] SLR (R) 617; [1987] SLR 497 (folld)

PP v Low Kok Heng [2007] 4 SLR (R) 183; [2007] 4 SLR 183 (refd)

PP v Majid bin Abdul Rahim [2007] SGDC 222 (overd)

PP v Ng Kwok Chun [1992] 1 SLR (R) 159; [1992] 1 SLR 877 (refd)

PP v Tan Kheng Chun Ray [2011] SGHC 183 (refd)

PP v Tan Kiam Peng [2007] 1 SLR (R) 522; [2007] 1 SLR 522 (refd)

Tan Kheng Chun Ray v PP [2012] 2 SLR 437 (refd)

Tse Po Chung Nathan v PP [1993] 1 SLR (R) 308; [1993] 1 SLR 961 (refd)

Criminal Procedure Code 2010 (Act 15 of 2010) ss 390 (3) , 394, 400

Dangerous Drugs Act (Cap 151, 1970 Rev Ed) s 2

Interpretation Act (Cap 1, 2002 Rev Ed) ss 2 (1) , 9 A (1)

Misuse of Drugs Act 1973 (Act 5 of 1973)

Misuse of Drugs (Amendment) Act 1975 (Act 49 of 1975)

Misuse of Drugs Act (Cap 185, 1985 Rev Ed) ss 5, 7

Misuse of Drugs Act (Cap 185, 2001 Rev Ed) ss 7, 8 (a)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 2, 5, 6, 7, 17 (consd) ;ss 8 (a) , 8 (b) , 8 A (1) , Second Schedule

Appellant in person

Lee Lit Cheng, Wong Woon Kwong and Ruth Wong (Attorney-General's Chambers) for the respondent.

Judgment reserved.

Chan Sek Keong CJ

Introduction

1 This is an appeal against sentence by Adnan bin Kadir (‘the Appellant’). He pleaded guilty in the District Court to one count of importing 0.01 g of diamorphine into Singapore, which is an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the current MDA’), and was sentenced to five years' imprisonment and five strokes of the cane.

The facts

2 The Appellant is a 41-year-old male. The charge which was proceeded upon by the Prosecution (‘the Diamorphine Charge’) reads as follows:

... [T]hat you, on 21^stDecember 2011 at or about 6.36 a.m., at Immigration Checkpoint Authority, Woodlands Checkpoint, Singapore, did import into Singapore ... one packet containing 0.35 grams of granular/powdery substance which was analyzed and found to contain 0.01 gram of Diamorphine ... and you have thereby committed an offence under section 7 of the Misuse of Drugs Act, Chapter 185 and punishable under Section 33 of the said Act...