Johari bin Kanadi and Another v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 25 April 2008
• Neutral Citation: [2008] SGHC 62
• Date: 25 April 2008
• Subject Matter: Section 60 Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed),Drug offenders facing enhanced punishment for repeat offenders under s 33A Misuse of Drugs Act (Cap 185, 2001 Rev Ed),Section 8(b)(ii) Misuse of Drugs Act (Cap 185, 2001 Rev Ed),Drug offenders having drug consumption antecedents,Whether Arts 9(1), 11(1) and 12(1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) were violated by prosecution of accused persons for consumption of Subutex,Court of criminal appeal,Criminal Law,Courts and Jurisdiction,Section 56A(1) Subordinate Courts Act (Cap 321, 2007 Rev Ed),Rights,Sentencing,Constitutional Law,Whether there was a constitutional question not dealt with previously,Criminal Procedure and Sentencing,Penalties,Protection,Whether there were questions of law of public interest,Appeals,Accused person,Criminal references,Whether drug offenders should have been sentenced as repeat offenders under s 33A Misuse of Drugs Act (Cap 185, 2001 Rev Ed),Points reserved,Discretion of subordinate court to refer constitutional question to High Court,Statutory offences,Misuse of Drugs Act,Consumption of Subutex
• Docket Number: Magistrate's Appeals Nos 56 and 57 of 2007; Criminal Motion No 14 of 2007
• Published date: 28 April 2008
• Defendant Counsel: Gillian Koh-Tan (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Plaintiff Counsel: S K Kumar (S K Kumar & Associates)

25 April 2008 Grounds of Decision.

Tay Yong Kwang J:

Magistrate’s Appeals Nos 56 and 57 of 2007

The charges

1 The two appellants (“Johari” and “Bahtiar”) appealed to the High Court against the sentences imposed by District Judge Kow Keng Siong (“the DJ”) on the following charges under the Misuse of Drugs Act (“MDA”)(Cap 185):

You, Johari Bin Kanadi

Male 31 years (DOB: 16.9.1975)

NRIC No S7527600-A

are charged that you, on or about the 17^th January 2007, in Singapore, did consume a Class A Controlled Drug listed in the First Schedule to the Misuse of Drugs Act (Cap 185) as well as a Specified Drug listed in the Fourth Schedule to the Misuse of Drugs Act, Cap 185, to wit, Norbuprenorphine, without authorisation under the said Act or the Regulations made thereunder and you have thereby committed an offence under Section 8(b)(ii) of the Misuse of Drugs Act, Chapter 185.

And further,

that you, prior to the commission of the current offence, that is to say, on 7^th June 2002, had been convicted in the Subordinate Courts 24, (DAC 24418/2002) in Singapore, for an offence under Section 8(b)(ii) of the Misuse of Drugs Act, Chapter 185 punishable under Section 33A(1) of the Misuse of Drugs Act, which conviction has not been set aside, and you are now liable to be punished with enhanced punishment under Section 33A(2) of the Misuse of Drugs Act, Chapter 185.

You, Bahtiar Bin Mohd Rahim,

M/34

NRIC No S7241118-H

are charged that you, on or about the 29^th day of December 2006, in Singapore, did consume a specified drug listed in the Fourth Schedule to the Misuse of Drugs Act, Cap 185, to wit, Buprenorphine, without any authorisation under the said Act or the Regulations made thereunder and thereby committed an offence under Section 8(b)(ii) of the Misuse of Drugs Act.

And further,

that you, before the commission of the said offence, had been admitted to an approved institution, namely Sembawang Prison/Drug Rehabilitation Centre (DRC) on 16^th January 1999 and 22^nd March 2000 respectively pursuant to the orders made by the Director of the Central Narcotics Bureau in Singapore under Section 37(2)(b) of the Misuse of Drugs Act, and you are now liable to be punished under Section 33A(1) of the Misuse of Drugs Act.

The statements of facts

2 The facts of the two offences were straightforward. On 14 August 2006, by a Ministerial Order, the Minister for Home Affairs exercised his power under s 59 of the MDA to amend the First Schedule of the MDA to include buprenorphine and norbuprenorphine as Class A “controlled drugs.” On 1 October 2006, they were classified as “specified drugs” under the Fourth Schedule of the MDA. On 17 January 2007, Johari reported to the police for his routine urine test. His urine specimens were subsequently found to contain norbuprenorphine and he was arrested. On 29 December 2006, Bahtiar reported for his routine urine test and provided two urine specimens. These were subsequently analysed and found to contain buprenorphine. He was also arrested. The antecedents set out in the respective charges were not disputed. The two substances, norbuprenorphine and buprenorphine, are commonly known as “Subutex” and I will use this term to describe both of them.

The proceedings before the DJ and his decision

3 At the trial below, after the charges had been read to Johari and Bahtiar, their counsel, Mr S K Kumar, rose to make a preliminary objection to the charges. Mr Kumar objected to the prosecution of the appellants under s 33A of the MDA and applied for the proceedings before the DJ to be stayed so that the DJ could refer a constitutional question to the High Court under s 56A(1) of the Subordinate Courts Act (“SCA”)(Cap 321). The prosecution opposed the application as it was of the view that the question stated by Mr Kumar (see [5] below) was not a Constitutional issue and that the DJ had the discretion whether or not to refer any such question in any event. After hearing the arguments of the prosecution and the defence, the DJ dismissed the appellants’ application. Both appellants then pleaded guilty to the respective charges and were sentenced to the mandatory minimum punishment prescribed by law. Johari was sentenced to 7 years’ imprisonment and 6 strokes of the cane while Bahtiar was sentenced to 5 years’ imprisonment and 3 strokes of the cane. Their sentences were backdated to the date of their remand and the caning was stayed pending their appeals to the High Court.

4 S 56A(1) of the SCA provides:

Where in any proceedings in a subordinate court a question arises as to the interpretation or effect of any provision of the Constitution, the court hearing the proceedings may stay the proceedings on such terms as may be just to await the decision of the question on the reference to the High Court.

The DJ was of the view that s 56A(1) did not make it mandatory for a subordinate court to refer a case to the High Court whenever a Constitutional question arose. He held that the subordinate court retained the discretion to decide whether it should so refer after considering the merits of the particular case before it. As held in Chan Hiang Leng Colin and Others v PP [1994] 3 SLR 662 at [10], this was to prevent unnecessary stays of proceedings each time a party purported to raise a Constitutional question. The DJ also held that case law had established that a subordinate court could decline to refer a case to the High Court if the issues in question were not new or difficult points of law or were not of sufficient importance (see Liong Kok Keng v PP [1996] 3 SLR 263, Kok Hoong Tan Dennis and Others v PP [1997] 1 SLR 123 and Ang Cheng Hai & Others v PP [1995] SGHC 97).

5 The constitutional question put forward by Mr Kumar was:

Whether it is against the Constitution to sentence Subutex consumers to enhanced punishment under s 33A of the MDA when it is clear that Subutex was legally consumable in Singapore at least since the year 2002 right up to 14 August 2006 when it was declared a controlled drug and listed as a Class A drug as well as a specified drug since 1 October 2006.

Mr Kumar argued that the Ministerial order classifying Subutex as a controlled drug and a specified drug under the MDA contravened the following constitutional provisions:

Art 9(1) which states:

No person shall be deprived of his life or personal liberty save in accordance with law.

Art 11(1) which provides:

No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed.

Art 12(1) which provides:

All persons are equal before the law and entitled to the equal protection of the law.

6 Mr Kumar argued that it was arbitrary and unfair to classify Subutex as a controlled drug on 14 August 2006 and as a specified drug on 1 October 2006 as it had been touted as a panacea for weaning drug abusers off opiate addiction. The appellants had relied on the government’s assurance that this was so and, consequently, became addicted to Subutex. They were not informed that Subutex was addictive or that it would subsequently come within the MDA. Mr Kumar also submitted that it was unfair to invoke s 33A of the MDA because the appellants would be made to suffer enhanced punishment for what was actually their first conviction for Subutex consumption.

7 The DJ declined to make the Constitutional reference as he found that the appellants’ cases did not raise any question as to the interpretation or effect of the said Constitutional provisions. He reasoned as follows:

(a) Art 9(1) was not infringed because there was no evidence or suggestion that the classification of subutex as a controlled drug and a specified drug was procedurally flawed or irregular.

(b) Article 11(1) was not infringed because:

(i) The appellants’ cases did not involve either the creation of new offences or the enhancement of the punishment for existing offences with retrospective effect.

(ii) Section 33A of the MDA did not require the accused to have abused the same type of drug on a previous occasion before he was liable for enhanced punishment.

(iii) An accused could be liable for enhanced punishment under legislation targeted at repeat offenders, even if the subsequent offence was defined more widely than the predicate offence on which an accused had previously been convicted. This proposition was supported by Teo Kwee Chuan v PP [1993] 3 SLR 908 (on the Road Traffic Act (Cap 276)) and by PP v Chen Chih Sheng and another [1999] 1 SLR 714 (on the then Employment of Foreign Workers Act (Cap 91A)).

(iv) Legislative intent to expeditiously and effectively curb Subutex abuse in Singapore would be defeated if s 33A of the MDA did not apply to first-time Subutex abusers.

(c) Article 12(1) was not infringed because the classification of Subutex as a controlled and specified drug was not arbitrary or unreasonable. The decision to make such a classification was a carefully considered and reasonable one in light of the following:

(i) Subutex turned out not to be a harmless drug but one that produced a host of adverse side effects.

(ii) The government gave clear and early indication of its possible criminalisation from as early as 2 March 2006.

Rehabilitation and an amnesty for Subutex addicts were also provided before prosecution under the MDA commenced. The appellants could not therefore claim that prosecuting them under s 33A of the MDA was contrary to their legitimate expectations.

(iv) The classification of Subutex as a controlled and specified drug was effective in meeting the object of executive action.

The appeal

8 The appellants then brought these appeals against sentence on two grounds:

(a) the DJ should have made the Constitutional reference under s 56A of the SCA.

(b) the appellants should not have been sentenced as repeat offenders under s 33A of the MDA, their sentences should be set aside and they should...