Effrizan Kamisran v Public Prosecutor

JurisdictionSingapore
JudgeSundaresh Menon CJ
Judgment Date06 July 2020
Neutral Citation[2020] SGHC 135
Plaintiff CounselThe appellant in person
Docket NumberMagistrate’s Appeal No 9053 of 2019/01
Date06 July 2020
Hearing Date07 February 2020,28 May 2020
Subject MatterSentencing,Appeals,Criminal Procedure and Sentencing
Published date09 July 2020
Defendant CounselWong Woon Kwong, Dwayne Lum Wen Yi, and Tan Ben Mathias (Attorney-General's Chambers),Tan Ruo Yu (Davinder Singh Chambers LLC) as amicus curiae.
CourtHigh Court (Singapore)
Citation[2020] SGHC 135
Year2020
Sundaresh Menon CJ (delivering the judgment of the court):

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 repeated drug abuse through mandatory imprisonment under the long-term imprisonment (“LT”) regime. The LT regime provides for extended mandatory minimum terms of imprisonment that are prescribed for offenders with certain antecedents. In general, the mandatory minimum terms are extended in line with the number of relevant antecedents the offender has (referred to as “LT-1” and “LT-2”). Imprisonment follows the successful prosecution of the accused person in court proceedings.

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 Lim Keng Chia v Public Prosecutor [1998] 1 SLR(R) 1 (“Lim Keng Chia”)? And, does the Director have a duty to give reasons for making a DRC order?

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 not generally required to give reasons for his decision in making a DRC order. We now explain our decision.

Background and procedural history Proceedings below

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(b)(ii) punishable under s 33A(2) of the MDA; an enhanced possession charge for methamphetamine under s 8(a) punishable under s 33(1) of the MDA; and a possession of utensils charge under s 9 punishable under s 33(1) of the MDA.

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: I wish to seek clarification from the court, why there are 2 different structures of sentencing in cases of similar nature? I wish to produce an example antecedent [sic] of sentencing under the similar nature but of a different structure of sentencing?

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.

I wish to seek clarification on how the court arrived on the conclusion? With regards to the ground of decision stated in (Pg 45 of 77) of the serial number (35 and 36) Serial no 35 in the ground of decision stated that the amendment introduced by the Bill had yet to come into operation. For the record, I was sentenced on the 4th March 2019, whereas, bearing in mind the above example given were charged on April 2018, clearly indicates contradiction. Serial no 36 indicates that my argument on the example given as above would be successful IF the provision of the Bill were already in force when I was sentenced on the 4th March 2019 However, the date of the conversion awarded to the example given above, again, contradicts with the ground of decision. With respect, I see no basis for treating these circumstances as a factor that should not be recognised in sentencing me to Enhanced consumed or the possibility of conversion to D4 (D.R.C.) With respect to the Honourable Court, I wish to state that I did not question the integrity of the Court’s decision and the credibility of the Prosecutor’s office in prosecuting my case. Neither do I ask for a discharged on my case because I fully understand the consequences to the nature of my case. However, I seek for the court fair judgment on the arguments stated, and the example given towards the ground of decision, as the law now stands.

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 (Singapore Parliamentary Debates, Official Report (15 January 2019) vol 94:

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 …

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.

… 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.

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.

… 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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2 cases
  • Public Prosecutor v Carlos Javier Galeano Wern Lung
    • Singapore
    • District Court (Singapore)
    • 27 February 2024
    ...cases: see, for example, Public Prosecutor v Effrizan Kamisran [2019] SGDC 60 at [55] (upheld in Effrizan Kamisran v Public Prosecutor [2020] 5 SLR 747); and Public Prosecutor v Spencer Kelly Vincent [2021] SGDC 40 at [55] (appeal dismissed). For the 26 Jul 2023 Drug Consumption Charge, I a......
  • Public Prosecutor v Mohammad Shahrir Bin Abdul Rashid
    • Singapore
    • District Court (Singapore)
    • 27 August 2021
    ...v Lim Cheng Ji Alvin [2017] 5 SLR 671; Public Prosecutor v Choo Chong Jin [2018] SGDC 267 4 Effrizan Kamisran v Public Prosecutor [2020] 5 SLR 747 5 Medical Report dated 19 September 2018 6 Prosecution’s Sentencing Submissions, [7] 7 Prosecution’s Sentencing Submissions, pg 5 - 7 8 Section ......

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