Amazi bin Hawasi v PP

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judgment Date: 10 August 2012
• Docket Number: Special Case No 2 of 2012
• Date: 10 August 2012

Amazi bin Hawasi

Plaintiff

and

Public Prosecutor

Defendant

[2012] SGHC 164

Chan Sek Keong CJ

Special Case No 2 of 2012

High Court

Constitutional Law—Constitution—Separation of powers—Whether deeming provisions in ss 33 A (5) (a) and 33 A (5) (c) Misuse of Drugs Act (Cap 185, 2008 Rev Ed) violated principle of separation of powers embodied in Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)—Sections 33 A (5) (a)and 33 A (5) (c) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)—Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Constitutional Law—Judicial power—Whether deeming provisions in ss 33 A (5) (a) and 33 A (5) (c)Misuse of Drugs Act (Cap 185, 2008 Rev Ed) represented legislative interference with exercise of judicial power—Sections 33 A (5) (a) and 33 A (5) (c) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)—Constitutional Law

Legislature—Parliament—Parliament's reclassification of drugs under Fourth Schedule Misuse of Drugs Act (Cap 185, 2008 Rev Ed)—Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

The petitioner (‘the Petitioner’) was charged with various drug offences under the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the MDA’), including one count of consumption of morphine under s 8 (b) (ii) of the MDA. He pleaded guilty to the charges and was convicted on 8 February 2012. He stood to be punished under s 33 A of the MDA on account of his two previous convictions for the consumption of, respectively, morphine and cannabinol derivatives. At the time of those previous convictions, both morphine and cannabinol derivatives were classified as ‘controlled’ drugs, but they had since been reclassified as ‘specified’ drugs. Section 33 A (5) (a) of the MDA provided that a previous conviction occurring after 1 October 1992 for the consumption of a ‘controlled’ drug which, on the date of a subsequent conviction, had been reclassified as a ‘specified’ drug was deemed to be a previous conviction for consumption of a ‘specified’ drug for the purpose of determining whether the minimum enhanced punishments prescribed under s 33 A (1) were applicable vis-à-vis the subsequent conviction. As the Petitioner's previous convictions occurred after 1 October 1992, they were deemed to be convictions for consumption of ‘specified’ drugs and the Petitioner was hence liable to be sentenced under s 33 A (1) of the MDA for the drug consumption offence which he was convicted of on 8 February 2012.

On the Petitioner's application, the District Court referred for the High Court's determination the question of law as to whether s 33 A (5) (a)of the MDA violated the principle of separation of powers embodied in the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Singapore Constitution’) in deeming a previous conviction for consumption of a controlled drug to be a conviction for consumption of a specified drug (‘the Stated Question’).

It was the Petitioner's argument that the deeming provisions in ss 33 A (5) (a)and 33 A (5) (c) of the MDA (‘the impugned MDA deeming provisions’) violated the principle of separation of powers as they had the effect of changing the character of previous convictions and previous admissions to a Drug Rehabilitation Centre (‘DRC admissions’) for consumption of controlled drugs into previous convictions and previous DRC admissions for consumption of specified drugs, hence amounting to a legislative interference with the exercise of the judicial and the executive power.

Held, answering the Stated Question in the negative:

(1) The Petitioner's reliance on the case of United States v Klein80 US 128 (1871) was misguided because, unlike the impugned legislation in that case, the impugned MDA deeming provisions did not have the effect of changing the character and/or nature of previous convictions and previous DRC admissions for consumption of controlled drugs, and also did not annul the effects of the same. The impugned MDA deeming provisions simply provided that previous convictions and previous DRC admissions for drug consumption activities were to be treated as aggravating factors for the purpose of determining, in subsequent convictions, whether the accused was subject to the enhanced punishment regime set out in s 33 A of the MDA: at [17] and [22].

(2) There was nothing in the Singapore Constitution that prohibited Parliament from legislatively prescribing conditions which, upon being satisfied, would trigger the application of minimum enhanced punishments: at [17].

(3) Parliament could not enact a deeming provision which directed the court as to the manner and outcome of the exercise of its judicial power. However, the impugned MDA deeming provisions did not have this effect: at [19].

Bainbridge v Minister for Immigration and Citizenship (2010) 181 FCR 569 (refd)

Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 (refd)

Don John Francis Douglas Liyanage v R [1967] 1 AC 259 (refd)

Macks, Re; Ex parte Saint (2000) 204 CLR 158 (refd)

Mohammad Faizal bin Sabtu v PP [2012] 4 SLR 947 (refd)

Nicholas v R (1998) 193 CLR 173 (refd)

Pennsylvania v Wheeling & Belmont Bridge Co 59 US 421 (1855) (distd)

Rv Humby; Ex parte Rooney (1973) 129 CLR 231 (refd)

Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56 (refd)

US v Klein 80 US 128 (1871) (distd)

US v Padelford 9 Wallace 531 (1870) (refd)

Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Misuse of Drugs Act (Cap 185, 1997 Rev Ed) ss 8 (b) , 33 A, 33 A (1) , 33 A (1) (b) , Fourth Schedule

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 33 A (5) (a) , 33 A (5) (c) (consd) ; ss 8 (a) , s 8 (b) , 8 (b) (ii) , 9, 33 A, 33 A (1) , s 33 A (5) (a) (i) , 33 A (5) (d)

Misuse of Drugs (Amendment) Act 1998 (Act 20 of 1998)

Misuse of Drugs Act (Amendment of Fourth Schedule) Order 2007 (S402/2007)

Federal Courts (State Jurisdiction) Act 1999 (SA and Qld)

Matrimonial Causes Act 1971 (Cth)

Migration Act 1958 (Cth)

Migration Legislation Amendment Act (No 1) 2008 (Cth)

SKKumar (SKKumar Law Practice LLP) for the petitioner

Tan Ken Hwee, Andre Jumabhoy, Kwek Chin Yong, Seraphina Fong and Jeremy Yeo Shenglong (Attorney-General's Chambers) for the respondent

Paul Ong Min-Tse as amicus curiae.

Chan Sek Keong CJ

Background

1 On 28 September 2011, Amazi bin Hawasi (‘the Petitioner’) was charged under s 8 (b) (ii) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the MDA’) with the consumption of morphine, an offence punishable under s 33 A of the MDA due to his previous convictions for drug consumption offences (see [2] and [5] below). He was also charged with one count of possession of a controlled drug and one count of possession of drug paraphernalia under ss 8 (a) and 9 respectively of the MDA. He pleaded guilty to the charges and was duly convicted on 8 February 2012, with another charge (relating to possession of drug paraphernalia under s 9 of the MDA) taken into consideration for the purposes of sentencing.

2 Prior to the...