Effrizan Kamisran v Public Prosecutor
Jurisdiction | Singapore |
Judge | Sundaresh Menon CJ |
Judgment Date | 06 July 2020 |
Neutral Citation | [2020] SGHC 135 |
Plaintiff Counsel | The appellant in person |
Docket Number | Magistrate’s Appeal No 9053 of 2019/01 |
Date | 06 July 2020 |
Hearing Date | 07 February 2020,28 May 2020 |
Subject Matter | Sentencing,Appeals,Criminal Procedure and Sentencing |
Published date | 09 July 2020 |
Defendant Counsel | Wong Woon Kwong, Dwayne Lum Wen Yi, and Tan Ben Mathias (Attorney-General's Chambers),Tan Ruo Yu (Davinder Singh Chambers LLC) as amicus curiae. |
Court | High Court (Singapore) |
Citation | [2020] SGHC 135 |
Year | 2020 |
Rehabilitation in a drug rehabilitation centre (“DRC”) has long been a mainstay of Singapore’s multi-pronged strategy to combat drug abuse. A DRC admission depends on the Director of the Central Narcotics Bureau (“the Director” and “the CNB”) making an order under s 34 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). Singapore’s anti-drug strategy, which has been fine-tuned over the years, has also included the punishment and deterrence of
The present appeal brings to the fore a number of issues about the relationship between DRC admissions and prosecutions in court for drug consumption. Specifically, how does the exercise of the Director’s discretion to admit a drug abuser to a DRC under s 34 of the MDA (a “DRC order”) interact with prosecutorial discretion? May a subsequent prosecution be brought based on the same conduct that founded a drug abuser’s DRC admission (a “same-conduct DRC/prosecution” scenario), as was held to be the case in
In our judgment, in general, the exercise of the Director’s discretion to make a DRC order does not impinge on the prosecutorial discretion vested in the Attorney-General (“AG”). However, same-conduct DRC/prosecutions are not generally permissible because they will usually give rise to an abuse of the judicial process and, indeed, of the prosecutorial power that is vested in the AG in his capacity as the Public Prosecutor. Further, the Director is
The appellant, Effrizan Kamisran (“the Appellant”), who was 39 years old at the time of sentencing below, has a long history of drug-related offending. In 2005, he was sentenced to eight years’ imprisonment and eight strokes of the cane for drug trafficking. Following his release, he re-offended and was subsequently punished in 2012 with seven years and three months’ imprisonment and six strokes of the cane for drug consumption pursuant to the LT regime.
In October 2018, the Appellant was again arrested on suspicion of committing offences under the MDA. In March 2019, the Appellant pleaded guilty to a repeat LT-2 consumption charge for consumption of methamphetamine under s 8(
The District Judge (“the DJ”) sentenced the Appellant to seven years six months’ imprisonment and six strokes of the cane for the first charge, two years’ imprisonment for the second charge, and three months’ imprisonment for the third charge. The sentences for the first and third charges were ordered to run consecutively, resulting in an aggregate sentence of seven years nine months’ imprisonment and six strokes of the cane. Two other charges (an LT-2 charge for consumption of monoacetylmorphine and an enhanced possession charge for diamorphine) were taken into consideration.
The Appellant’s mention of a case of a “similar nature” The Appellant, who was unrepresented, appealed against his sentence. While he did not provide any specific reasons why his sentence was manifestly excessive, his skeletal arguments named one Mohamed Salim bin Abdul Aziz (“Salim”), who apparently faced similar charges but was sent for treatment in a DRC instead of being prosecuted. In material part, his skeletal arguments read as follows:
Example individual is: Mohamed Salim Bin Abdul Aziz (DOO399/2018)
Individual above is under similar nature of case is undergoing treatment in D.R.C since
2018 He was allowed on the conversion as I had stated in my previous mitigation in (Pg 77 of 77) on the 12th April 2018.
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The Appellant had also mentioned Salim in his mitigation plea before the DJ, when he asserted that Salim was “converted to DRC” because he was categorised as a “pure abuser”. According to him, Salim was admitted to a DRC on 12 April 2018 even though his case had been dealt with “before the amendment bill was made”. By the “amendment bill” the Appellant was presumably referring to the Misuse of Drugs (Amendment) Bill 2019 (“the MDA Bill”), which was passed by Parliament on 15 January 2019.
As explained by the Minister for Home Affairs and Minister for Law Mr K Shanmugam in the second reading speech for the MDA Bill, from 16 January 2019 (the “Effective Date”), pure drug abusers who admitted to drug consumption would be admitted to a DRC regardless of how many times they had previously been detained (
Now, let me move on to the rehabilitation aspect of the Bill. Drug abusers today, arrested for the first and second time, go through rehabilitation, which is mandatory, in DRC. We call it DRC1 and DRC2 …
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The Long-Term Imprisonment (LT) regime was introduced in 1998. That targeted hardcore abusers, who, at that time, formed three-quarters or more than three-quarters of the abusers who were being arrested. The purpose was to punish, but also to deter their drug use because everything else has been tried, but it was not possible to keep them away from drugs. They were getting into drugs, and they were contaminating others, and the problem was spreading. So, it was to protect the public from abusers who turned to crime to feed their drug habits as well.
So, third-time abusers face mandatory imprisonment of five to seven years, and three to six strokes of the cane. Fourth time and beyond: seven to 13 years in LT. In LT2, six to 12 strokes of the cane.
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… we have been studying how to bring down recidivism down even further. Our assessment is that for pure abusers, we can now afford to focus, shift our balance quite decisively, and focus more on rehabilitation as opposed to detention. …
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So, we have decided, let us try and distinguish between those who only consume drugs – I call them the “pure” abusers – from those who also face charges for other offences. For example, trafficking, property offences, violent offences. So, if they have abused drugs and they have committed some of these other crimes, we put them in one category. We put those who only abused drugs in one category.
For the second group, those who consume drugs and commit other offences, they will continue to be charged for their drug-consumption offences as well as the other offences. If they are liable, they will be sentenced to LT.
For those who only abuse but do not have any other criminal offence, that means they only consume drugs and they admit to their drug abuse, then the general approach, regardless the number of times, would be that the Director of CNB will make the appropriate supervision or detention order, and channel them into the rehabilitation regime.
So, this group of abusers may also include those who have minor consumption-related offences like possession of drug-taking utensils or possession of small quantities of drugs. If AGC agrees with CNB that there is no need to charge the drug abusers for these minor offences, then these persons will also be channelled to the rehabilitation regime.This will be conditional on the abusers admitting to their drug offences. …
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… to benefit as many persons as possible, CNB, with the concurrence of AGC, will generally not charge abusers, who meet the criteria I have explained, from tomorrow, 16 January 2019, on the assumption that the Bill is passed today.
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