Comment

• Published date: 01 December 2017
• Citation: (2017) 29 SAcLJ 294
• Date: 01 December 2017
• Author: TOO Xing Ji LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore); Lawyer at Bachoo Mohan Singh Law Practice (Singapore).

UNFORESEEN CONSEQUENCES: DIFFICULTIES IN

PUNISHING THE FOREIGN ABETMENT OF SINGAPORE

DRUG OFFENCES

Section 13(aa) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Section 13(aa) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) criminalises the abetment of any offence under the Act, notwithstanding that the abetment took place outside of Singapore. This article examines the offence of “foreign abetment” under s 13(aa), and argues that the present sentencing regime for the offence is irrational and should be amended.

I. Introduction

1 Section 13(aa) of the Misuse of Drugs Act1 (“the Act”) criminalises the abetment of any offence under the Act, notwithstanding that the abetment took place outside of Singapore. This article examines the offence of “foreign abetment”2 under s 13(aa) of the Act, and argues that the present sentencing regime for the offence is irrational and should be amended because:

(a) The present punishment regime (two to ten years' jail; $4,000 to $40,000 fine; or both) bears no direct correlation with the punishment of the underlying principal offence, unlike “local abetment”3 punishable under s 12 of the Act, which attracts the same punishment as the principal offence abetted.

(b) The range is lower at the top end than the maximum punishment that may, and in many cases, must, be imposed for certain principal offences, and is higher at the bottom end than the maximum sentence that may be imposed for other principal offences.

(c) Consequently, the abettor may receive a punishment that is markedly different from the punishment inflicted on the principal offender. Such a punishment may, in certain circumstances, be disproportionate to the culpability of the abettor.

(d) Furthermore, an abettor who abets an offence from overseas, could receive a punishment that is very different from an abettor who abets the same offence from within Singapore, with the only material difference being where the abetment took place. In the absence of a sound policy reason for such a legal distinction, the differentiation may well offend the constitutional protection of equality under Art 12 of the Constitution of the Republic of Singapore4 (“Constitution”).

II. Overview of the law

2 The substantive law of abetment under the Act is governed by ss 12 and 13:

Abetments and attempts punishable as offences

12. Any person who abets the commission of or who attempts to commit or does any act preparatory to, or in furtherance of, the commission of any offence under this Act shall be guilty of that offence and shall be liable on conviction to the punishment provided for that offence.

…

Abetting or procuring commission of offences outside Singapore 13. It shall be an offence for a person —

(a) to aid, abet, counsel or procure the commission in any place outside Singapore of an offence punishable under a corresponding law in force in that place;

(aa) to aid, abet, counsel or procure the commission of any offence under this Act within Singapore, notwithstanding that all or any of the acts constituting the aiding, abetment, counselling or procurement were done outside Singapore; or

(b) to do an act preparatory to, or in furtherance of, an act outside Singapore which if committed in Singapore would constitute an offence under this Act.

3 “Corresponding law” under s 13(a) is further defined under s 2 of the Act:

‘corresponding law’ means a law stated in a certificate purporting to be issued by or on behalf of the government of a country outside Singapore to be a law providing for the control and regulation in that country of —

(a) the production, supply, use, export and import of drugs and other substances in accordance with the provisions of the Single Convention on Narcotic Drugs signed at New York on 30th March 1961; or

(b) the production, supply, use, export and import of dangerous or otherwise harmful drugs in pursuance of any treaty, convention or other agreement or arrangement to which the government of that country and the Government of Singapore are for the time being parties;

4 The word “abet” is not defined under the Act. However, s 2(1) of the Interpretation Act5 states that in every written law enacted before or after 28 December 1965 (which would include the Act), unless there is something in the subject or context inconsistent with such construction or unless it is therein otherwise expressly provided, “‘abet’, with its grammatical variations and cognate expressions, has the same meaning as in the Penal Code (Cap 224)”.

5 The issue of whether “abet” under the Act has the same meaning as “abet” under the Penal Code has been settled by the High Court and the Court of Appeal in at least two cases under the Act: Govindarajulu Murali v Public Prosecutor6

and Chai Chien Wei Kelvin v Public Prosecutor.7

6 Sections 107 and 108 of the Penal Code8 define abetment as follows:9

Abetment of the doing of a thing

107. A person abets the doing of a thing who —

(a) instigates any person to do that thing;

(b) engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

(c) intentionally aids, by any act or illegal omission, the doing of that thing.

…

Abettor

108. A person abets an offence who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.

…

7 Whether an act of abetment falls under s 12, or the various subsections of s 13, depends primarily on three things:

(a) where the abetment or preparatory act took place;10

(b) the jurisdiction of the principal offence;11 and

(c) where the principal offence or principal act complained of was committed.12

8 The different permutations which constitute criminal acts are:

(a) the abetment took place in Singapore; the principal offence is Singaporean; the location where the principal offence committed is irrelevant – s 12;

(b) the abetment took place in Singapore; the principal offence is foreign; the principal offence was committed overseas – ss 13(a);

(c) the abetment took place overseas; the principal offence is Singaporean; the principal offence was committed in Singapore – s 13(aa); and

(d) the preparatory act took place in Singapore; the principal act is not an offence, but would have been an offence if committed in Singapore; the principal act was committed overseas – s 13(b).

Offence	Location of Abetment/Preparatory Act	Jurisdiction of Principal Offence / Act Complained of	Location of Principal Offence / Act Complained of
Section 12	Singapore	Singapore	Anywhere
Section 13(a)	Singapore	Foreign	Overseas
Section 13(aa)	Overseas	Singapore	Singapore
Section 13(b)	Singapore	Not an offence, but would have been one if it had been done in Singapore	Overseas

Figure 1: Permutations of abetment under the Misuse of Drugs Act

9 The somewhat arcane differences would well have been academic, but for the fact that the different provisions carry vastly different punishments. A person convicted under s 12 is liable to receive the full range of punishments under the Act, ranging from a maximum fine of $1,000, to the mandatory death penalty; on the other hand, a person convicted under s 13 faces a specific punishment of two to ten years' jail; $4,000 to $40,000 fine; or both.

III. Legislative history

10 Section 13(aa) is a relatively new provision of the Act. It was introduced via s 6 of the Misuse of Drugs (Amendment) Act 2012,13 which was passed by Parliament on 14 November 2012, assented to by the President on 7 December 2012, and came into force on 1 January 2013. The section was innocuously tucked among a host of other significant amendments, the most prominent of which being the statutory exceptions for the mandatory death penalty under s 33B (more popularly referred to in criminal practice as the “courier exception”).

11 Possibly because most of the Honourable Members were focusing their attention on the courier exception, s 13(aa) attracted very few comments during its introduction. The only reference to it during the second reading of the Misuse of Drugs (Amendment) Bill14 were the following brief words by Asst Prof Tan Kheng Boon Eugene (Nominated Member):15

Clause 4 of the Bill introduces a new offence of criminalising the organisation of drug gatherings, with heavier penalties for those who organise gatherings involving the young and vulnerable. The extraterritorial reach that clause 6 seeks to provide is also necessary given that offences under the MDA often have an extra-territorial element. So these two clauses I do not think would impose significant difficulty. [emphasis added]

12 The Explanatory Statement for cl 6 of the Misuse of Drugs (Amendment) Bill was essentially a word-for-word restatement of the clause:

Clause 6 amends section 13 by making it an offence for any person to aid, abet, counsel or procure the commission of any offence under the Act within Singapore, notwithstanding that all or any of the acts constituting the aiding, abetment, counselling or procurement were done outside Singapore.

13 Despite its rather quiet introduction, the reach of s 13(aa) was anything but limited. For the first time since the inception of the Act and its precursor legislation, foreign acts of abetment of local drug offences were criminalised in Singapore.

IV. Lacuna in the law

14 The content of s 13(aa), as well as the timing of its introduction, suggests that it was specifically formulated to overcome the Court of Appeal's decision dated 4 April 2012 in Yong Vui Kong v Public Prosecutor16 (“Yong Vui Kong”).

15 In Yong Vui Kong, the issue arose as to whether one Chia...