Mohammad Faizal bin Sabtu and another v Public Prosecutor and another matter

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 11 January 2013
• Neutral Citation: [2013] SGCA 1
• Citation: [2013] SGCA 1
• Docket Number: Criminal Motions No 36 and 37 of 2012
• Published date: 25 January 2013
• Hearing Date: 04 September 2012
• Plaintiff Counsel: S K Kumar (M/s S K Kumar Law Practice LLP)
• Date: 11 January 2013
• Defendant Counsel: Tan Ken Hwee, Sandy Baggett and Kwek Chin Yong (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Subject Matter: Criminal Procedure

Chao Hick Tin JA (delivering the grounds of decision of the court): Introduction

These two Criminal Motions arose out of an answer given by the High Court on two separate questions of law stated for the High Court’s determination pursuant to s 395 of the Criminal Procedure Code (Act 15 of 2012) (“the CPC 2010”) relating to the constitutionality of certain provisions in s 33A of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”).

In Mohammad Faizal bin Sabtu v Public Prosecutor [2012] 4 SLR 947 (“Special Case No 1”), Mr Mohammad Faizal bin Sabtu (“the 1st Applicant”) had challenged the constitutionality of s 33A(1)(a), (d), and (e) of the MDA. In brief, the said sub-sections provide for enhanced punishment for persons who had previously been admitted to an approved Drug Rehabilitation Centre (“DRC”), previously convicted of consumption of a specified drug, or previously convicted for an offence of failure to provide a urine specimen. The stated question in Special Case No 1 was:

Does s 33A(1)(a), (d), &/or (e) of the MDA violate the separation of powers embodied in the Constitution of the Republic of Singapore in requiring the court to impose a mandatory minimum sentence as prescribed thereunder, with specific reference to “admission” as defined in s 33A(5)(c) of the MDA?

In Amazi bin Hawasi v Public Prosecutor [2012] 4 SLR 981 (“Special Case No 2”), Mr Amazi bin Hawasi (“the 2nd Applicant”) challenged the constitutionality of s 33A(5)(a) of the MDA. Section 33A(5)(a) of the MDA deems a previous conviction for consumption of a “controlled drug” as a conviction for consumption of a “specified drug” under s 8(b) of the MDA, for the purposes of bringing recalcitrant abusers of controlled drugs into the enhanced punishment regime under s 33A of the MDA. The stated question in Special Case No 2 was:

Does s 33A(5)(a) of the MDA violate the separation of powers embodied in the Constitution of the Republic of Singapore 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 s 33A(1) of the MDA?

The stated questions in both Special Case No 1 and No 2 (collectively, “the Special Cases”) raised fundamental issues of constitutional law in the context of the principle of separation of powers as to the role of the Legislature, the Executive and the Judiciary in the punishment of offenders under our criminal justice system.

The High Court (per Chan Sek Keong CJ) answered the stated questions in the Special Cases in the negative, ruling that the impugned provisions of the MDA did not violate the principle of separation of powers embodied in the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Singapore Constitution”).

In light of the High Court’s decision in the Special Cases, the Applicants applied, pursuant to s 397 of CPC 2010, for leave to refer the same two questions of law to this court on the ground that such reference was in the public interest.

On 4 September 2012, after hearing arguments from the parties, we dismissed both Criminal Motions for leave. We now give our reasons for the decision.

The background facts

The background facts relating to the Special Cases are succinctly set out in the written grounds of decision for Special Case No 1 at [5] and Special Case No 2 at [1]-[6]. Briefly, the 1st Applicant was charged with a number of offences under the MDA, including one charge of consumption of morphine under s 8(b)(ii) of the MDA (“the consumption charge”). As he had two previous DRC admissions, he would have to suffer an enhanced punishment of a minimum of five years’ imprisonment and three strokes of the cane pursuant to s 33A(1)(a)(i) and (ii) of the MDA. After being charged, and upon refusal by the District Court, he obtained leave from the High Court to state the question set out in [2] above for determination by the High Court. As regards the 2nd Applicant, he pleaded guilty to a charge of consumption of morphine (among other charges) and because of his previous convictions for drug consumption offences, he would have to suffer a similar enhanced punishment under s 33A(1)(b)(i) and (ii), read with the deeming provision in s 33A(5)(a) MDA. Like the 1st Applicant, he obtained leave from the High Court to state the question set out in [3] above for determination by the High Court. In the 2nd Applicant’s view, the deeming provisions in ss 33A(5)(a) and 33A(5)(c) of the MDA had the effect of transforming a previous conviction or DRC admission for consumption of a controlled drug into a previous conviction or DRC admission for consumption of a specified drug. In short, in both Special Cases, the Applicants had sought to challenge certain provisions in the MDA as being unconstitutional.

The Applicants’ arguments

The Applicants were represented by the same counsel, Mr S K Kumar, who made a joint submission on behalf of both Applicants. He submitted that leave ought to be granted as the questions posed engaged the public interest and were not free of doubt despite the High Court’s decisions in the Special Cases. The bulk of Mr Kumar’s arguments focused on why he thought the grounds of decision rendered in the Special Cases were wrong in law.

The Respondent’s arguments

The Respondent, on the other hand, submitted that leave ought not be granted for the following reasons: The questions posed did not engage the public interest, especially since they had been settled conclusively by the High Court’s decision in the Special Cases with reference to established legal principles; The questions which the Applicants now wished to raise to the Court of Appeal were not questions which arose when the High Court was hearing a matter in the exercise of its appellate or revisionary jurisdiction; Applications under s 397 of the CPC 2010 are intended for concluded cases, and not cases like the present where there were as yet no final orders; and Having elected to state the Special Cases to the High Court under s 395 of the CPC 2010, when they had the option under s 396 of the CPC 2010 to state their cases directly to the Court of Appeal instead, the Applicants should not be allowed another proverbial bite at the cherry.

Analysis of the issues before this court

To better appreciate the scheme of points reserved to the relevant courts under the CPC 2010, it is necessary that we first refer to the relevant provisions, ie, ss 395, 396 and 397 of the CPC 2010 (hereinafter referred to as “s 395”, “s 396” and “s 397” respectively). Under s 395, a Subordinate Court may, on the application of a party in a criminal case, state a case for the determination of the High Court on a question of law. If the Subordinate Court refuses to do so, that party may apply to the High Court to direct the Subordinate Court to state the case. This was, in fact, what transpired in the Special Cases. However, s 396 grants a party in a criminal case in the Subordinate Court the option, albeit with leave of the Court of Appeal, of applying for the case to be stated directly to the Court of Appeal. Section 396 reads:

Application to state case directly to Court of Appeal 396.—(1) Any party to the proceedings may, instead of applying to state a case on any question of law arising at a trial before a Subordinate Court for the opinion of the High Court under section 395, apply to state a case directly to the Court of Appeal.

(2) An application under subsection (1) shall only be made with the leave of the Court of Appeal. (3) When an application is made under subsection (1), the Court of Appeal may make such orders as it sees fit for the arrest, custody or release on bail of any accused. (4) Section 395(2), (3), (6) to (12) and (14) shall apply to the case stated under this section, except that any reference to the relevant court in those provisions shall be a reference to the Court of Appeal.

The purpose of s 396 is helpfully elucidated in The Criminal Procedure Code of Singapore: Annotations and Commentary (Jennifer Marie & Mohamed Faizal gen eds) (Academy Publishing, 2012) (“Marie & Faizal”) at paras 20.166 and 20.167, as follows:

Section 396 is a new provision that allows any party to the proceedings to state a case on a question of law arising at a trial in the Subordinate Court directly to the Court of Appeal, instead of using the procedure in section 395 of the Code. As highlighted by the Minister at the Second Reading of the Criminal Procedure Code (Amendment) Bill on 18 May 2010 (Singapore Parliamentary Debates, Official Report (18 May 2010) vol 87 at cols 487-488 (K Shanmugam, Minister of Law)), the situations where a “leapfrog”, as such provisions are known, will apply are:

a) Where the High Court is already bound by a prior decision of the Court of Appeal on the point of law being stated, or b) Where there is a conflict of binding authority on the High Court on the question at hand.

In these situations, the legal issues, for example, binding precedent on the High Court, are more appropriately dealt with by the Court of Appeal than the High Court. A “leapfrog” direct to the Court of Appeal would thus save parties time and cost. To ensure that the provision is not abused, however, the leave of the Court of Appeal would be required before the “leapfrog” process can be utilised. The Court of Appeal will determine whether the question of law is indeed of public importance, and whether a “leapfrog” is appropriate in the circumstances of the case.

If it was the opinion of the Court of Appeal which they wished to have obtained, the Applicants should have applied accordingly under s 396 giving their reasons for the “leapfrog”. Having said that, we hasten to add that it does not necessarily follow that even if the Applicants had applied under...