Amazi bin Hawasi v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 10 August 2012
• Neutral Citation: [2012] SGHC 164
• Plaintiff Counsel: S K Kumar (S K Kumar Law Practice LLP)
• Docket Number: Special Case No 2 of 2012
• Date: 2012
• Hearing Date: 08 May 2012
• Subject Matter: Judicial power,Constitutional Law,Sentencing,Criminal Procedure and Sentencing,Legislature,Equal protection of the law,Criminal Law,Executive,Statutory offences,Misuse of Drugs Act
• Published date: 04 September 2012
• Citation: [2012] SGHC 164
• Defendant Counsel: Paul Ong Min-Tse as amicus curiae.,Tan Ken Hwee, Andre Jumabhoy, Kwek Chin Yong, Seraphina Fong and Jeremy Yeo Shenglong (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Year: 2012

Chan Sek Keong CJ: Background

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 33A 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.

Prior to the commission of the aforesaid offences, the Petitioner had been convicted on 18 May 1998 and 2 January 2003 of the consumption of, respectively, morphine and cannabinol derivatives, both of which were then classified as “controlled” drugs. He was sentenced to 12 months’ imprisonment upon the first conviction and eight years’ corrective training upon the second conviction (these two convictions will hereafter be referred to collectively as “the Petitioner’s previous convictions”).

Prior to 20 July 1998, every proscribed drug under the then equivalent of the MDA (viz, the Misuse of Drugs Act (Cap 185, 1997 Rev Ed) (“the MDA (1997 Rev Ed)”)) was classified as a “controlled” drug. Parliament subsequently decided that in view of the extreme harmfulness of opiate drugs (viz, heroin, opium and morphine) and the prevalence of their abuse, they would be additionally classified as “specified” drugs (see Singapore Parliamentary Debates, Official Report (1 June 1998) vol 69 (“Singapore Parliamentary Debates vol 69”) at cols 43–44 (Wong Kan Seng, Minister for Home Affairs)). Therefore, pursuant to the coming into force of the Misuse of Drugs (Amendment) Act 1998 (Act 20 of 1998) (“the 1998 Amendment Act”) on 20 July 1998, morphine was reclassified as a “specified” drug in the Fourth Schedule to the MDA (1997 Rev Ed). Subsequently, cannabinol derivatives were also reclassified as “specified” drugs with the coming into force of the Misuse of Drugs Act (Amendment of Fourth Schedule) Order 2007 (GN No S 402/2007) on 1 August 2007.

Section 33A of the MDA (1997 Rev Ed), which is now s 33A of the MDA, was introduced via the 1998 Amendment Act to provide for “long-term imprisonment and caning for hardcore drug addicts” (see Singapore Parliamentary Debates vol 69 at col 42 (Wong Kan Seng, Minister for Home Affairs)). To achieve this objective, s 33A(1) of the MDA (1997 Rev Ed) provided for a minimum enhanced punishment of five years’ imprisonment and three strokes of the cane in (inter alia) cases where the offender had had no fewer than two previous convictions for consumption of a specified drug under s 8(b) (see s 33A(1)(b) of the MDA (1997 Rev Ed)). The corresponding provisions in s 33A of the MDA now read as follows:

Punishment for repeat consumption of specified drugs 33A.—(1) Where a person who has had not less than — … (b) 2 previous convictions for consumption of a specified drug under section 8(b); …

is convicted of an offence under section 8(b) for consumption of a specified drug or an offence of failure to provide a urine sample under section 31(2), he shall on conviction be punished with — (i) imprisonment for a term of not less than 5 years and not more than 7 years; and (ii) not less than 3 strokes and not more than 6 strokes of the cane.

…

(5) For the purposes of this section — (a) a conviction under section 8(b) by a court including a subordinate military court or the Military Court of Appeal constituted under the Singapore Armed Forces Act at — (i) any time on or after 1st October 1992 but before the relevant date for the consumption of a controlled drug which, on the date of any subsequent conviction, is specified in the Fourth Schedule; or (ii) any time on or after the relevant date for the consumption of a specified drug,

shall be deemed to be a previous conviction for consumption of a specified drug under section 8(b);

…

(d) “relevant date” — (i) in relation to a conviction … for consumption of diamorphine, morphine or opium, means 20th July 1998; and (ii) in relation to a conviction … for consumption of any drug added to the Fourth Schedule after 20th July 1998, means the date on which the amendment to that Schedule for the inclusion of such drug commences.

As the Petitioner’s previous convictions occurred after 1 October 1992, they were deemed to be convictions for consumption of “specified” drugs under s 33A(5)(a)(i) read with s 33A(5)(d) of the MDA. Accordingly, the Petitioner was liable to be sentenced to the minimum enhanced punishments prescribed in s 33A(1) of the MDA for the drug consumption offence which he was convicted of on 8 February 2012.

Prior to being sentenced, the Petitioner raised the issue of the constitutionality of s 33A(5)(a) of the MDA, arguing that it violated the principle of separation of powers embodied in the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Singapore Constitution”).

On 22 February 2012, the District Court referred the following question of law (“the Stated Question”) for the High Court’s determination:

Does section 33A(5)(a) of the [MDA] violate the separation of powers embodied in the Constitution of the Republic of Singapore (1985 Rev Ed) in deeming a previous conviction for consumption of a controlled drug as a conviction for consumption of a specified drug, and thereby requiring the court to impose a mandatory minimum sentence as prescribed in section 33A(1) of the MDA?

Although the Stated Question referred only to s 33A(5)(a) of the MDA (which relates to previous convictions for the offence of drug consumption under s 8(b) of the MDA), the Petitioner also raised in his written submissions the same question of constitutionality in relation to s 33A(5)(c) of the MDA. Section 33A(5)(c) relates to admissions to a Drug Rehabilitation Centre (“DRC”) under the orders of the Director of the Central Narcotics Bureau, and reads as follows:

“admission” means an admission under section 34(2) to [a DRC] at — (i) any time on or after 1st October 1992 but before the relevant date [as defined in s 33A(5)(d) (reproduced earlier at [4] above)] for the consumption of a controlled drug which, on the date of any subsequent conviction, is specified in the Fourth Schedule; or (ii) any time on or after the relevant date for the consumption of a specified drug …

Although there is no express deeming clause in s 33A(5)(c), the Petitioner alleged that it likewise had a deeming effect in that a DRC admission was defined to include an admission for consumption of drugs which were previously “controlled” drugs (as opposed to “specified” drugs). As such, for completeness, I will deal with both ss 33A(5)(a) and 33A(5)(c) (collectively, “the impugned MDA deeming provisions”) in these grounds of decision.

At the conclusion of the hearing of this Special Case, I answered the Stated Question in the negative, ie, the impugned MDA deeming provisions do not violate the principle of separation of powers embodied in the Singapore Constitution. I now give the reasons for my decision.

The Petitioner’s arguments

The Petitioner argued that 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 DRC admissions for consumption of controlled drugs into previous convictions and previous DRC admissions for consumption of specified drugs, and were thus a specific direction to the court to treat the former type of convictions and DRC admissions as being the same as the latter type of convictions and DRC admissions. This, it was argued, was not constitutionally permissible as it would interfere with prior court decisions and intrude into the judicial power. Counsel cited a number of cases concerning the US Constitution, which I will now discuss.

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