Mohammad Faizal bin Sabtu v PP

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 10 August 2012
• Neutral Citation: [2012] SGHC 163
• Citation: [2012] SGHC 163
• Hearing Date: 08 May 2012
• Year: 2012
• Published date: 22 August 2012
• Date: 10 August 2012
• Docket Number: Special Case No 1 of 2012
• Plaintiff Counsel: S K Kumar (S K Kumar Law Practice LLP)
• Defendant Counsel: Paul Ong Min-Tse as amicus curiae.,Tan Ken Hwee, Andre Jumabhoy, Kwek Chin Yong, Seraphina Fong and Jeremy Yeo Shenglong (Attorney-General's Chambers)
• Court: High Court (Singapore)

Chan Sek Keong CJ: Introduction

This Special Case (viz, Special Case No 1 of 2012 (“Special Case No 1”)) and Special Case No 2 of 2012 (see the companion grounds of decision in Amazi bin Hawasi v Public Prosecutor [2012] SGHC 164) state two separate questions of law for the court’s determination as to the constitutionality of certain provisions in s 33A of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). Section 33A of the MDA (also referred to hereafter as “s 33A” for short where appropriate) prescribes mandatory minimum (and enhanced) punishments for convicted drug offenders who have previously consumed specified drugs (as defined in s 2 of the MDA). The material provisions in s 33A for the purposes of this Special Case are as follows:

Punishment for repeat consumption of specified drugs 33A.—(1) Where a person who has not less than — (a) 2 previous admissions; (b) 2 previous convictions for consumption of a specified drug under section 8(b); (c) 2 previous convictions for an offence of failure to provide a urine specimen under section 31(2); (d) one previous admission and one previous conviction for consumption of a specified drug under section 8(b); (e) one previous admission and one previous conviction for an offence of failure to provide a urine specimen under section 31(2); or (f) one previous conviction for consumption of a specified drug under section 8(b) and one previous conviction for an offence of failure to provide a urine specimen under section 31(2),

is convicted of an offence under section 8(b) for consumption of a specified drug or an offence of failure to provide a urine specimen under section 31(2), he shall on conviction be punished with — (i) imprisonment for a term of not less than 5 years and not more than 7 years; and (ii) not less than 3 strokes and not more than 6 strokes of the cane.

…

Section 33A(5)(c) of the MDA defines “admission” as an admission to an “approved institution” (in essence, a drug rehabilitation centre (“DRC”)) for rehabilitation pursuant to s 34(2) of the MDA. Under s 34(1) of the MDA, the Director of the Central Narcotics Bureau (“the CNB Director”) may direct “any person whom he reasonably suspects to be a drug addict” to be medically examined or observed by a Government medical officer or a medical practitioner. Under s 34(2) of the MDA, if, as a result of such medical examination or observation, it appears to the CNB Director that it is necessary for the person examined or observed: (a) to be subject to supervision, the [CNB] Director may make a supervision order requiring that person to be subject to the supervision of an officer of the [Central Narcotics] Bureau for a period not exceeding 2 years; or (b) to undergo treatment or rehabilitation or both at an approved institution, the [CNB] Director may make an order in writing requiring that person to be admitted for that purpose to an approved institution.

The specific provisions in s 33A which are in issue in this Special Case are ss 33A(1)(a), 33A(1)(d) and 33A(1)(e) (collectively, “the impugned s 33A MDA provisions”). In summary, pursuant to these provisions, the court has to impose the minimum enhanced punishments in s 33A(1) in cases where the offender has had not less than: two previous admissions to a DRC (see s 33A(1)(a)); or one previous DRC admission coupled with one previous conviction for the offence under s 8(b) of the MDA (“s 8(b) offence”) of consuming a specified drug (see s 33A(1)(d)); or one previous DRC admission coupled with one previous conviction for the offence under s 31(2) of the MDA (“s 31(2) offence”) of failure to provide a urine specimen (see s 33A(1)(e)).

The stated questions in this Special Case and Special Case No 2 of 2012 raise a fundamental issue 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. Specifically, the issue in this Special Case is whether the impugned s 33A MDA provisions constitute an impermissible legislative intrusion into the judicial power and accordingly violate the principle of separation of powers embodied in the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (“the Singapore Constitution”). The stated question in this Special Case also raises additional issues as to whether the impugned s 33A MDA provisions violate Arts 9 and/or 12 of the Singapore Constitution. I should point out at this juncture that although ss 33A(1)(d) and 33A(1)(e) were raised in addition to s 33A(1)(a) in this Special Case, the submissions of the petitioner, Mohammad Faizal bin Sabtu (“the Petitioner”), dealt primarily with s 33A(1)(a) only. The analysis and discussion in these grounds of decision will therefore centre on s 33A(1)(a). My findings and rulings, however, apply equally to ss 33A(1)(d) and 33A(1)(e) as well.

Background to Special Case No 1

The Petitioner was charged on 1 April 2011 with a number of offences under the MDA, including one count of consumption of morphine under s 8(b)(ii) of the MDA. Section 33A(1)(a) of the MDA was applicable to him as he had two previous DRC admissions dated 29 August 2007 and 21 October 2008 respectively. If convicted of the consumption charge preferred against him, he would have to suffer the enhanced punishment of a minimum of five years’ imprisonment and three strokes of the cane under ss 33A(1)(i) and 33A(1)(ii) respectively of the MDA. The Petitioner pleaded guilty to the charges brought against him, and applied to the High Court for leave to state a Special Case for determination by the High Court after a similar application to the District Court was rejected. On 3 February 2012, I directed the District Court to state the following question of law (“the Stated Question”) for determination by the High Court:

Does s 33A(1)(a), (d) and/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 “admissions” as defined in s 33A(5)(c) of the MDA?

Although the Stated Question was asked in the context of the principle of separation of powers, the Petitioner also argued, in the course of his submissions, that the impugned s 33A MDA provisions (in particular, s 33A(1)(a)) violated Arts 9 and/or 12 of the Singapore Constitution. After hearing the submissions of the parties and also those of the amicus curiae (to whom I now express my gratitude for the very comprehensive brief which he submitted in these proceedings), I answered the Stated Question in the negative. I now give the reasons for my decision, as well as my rulings on the specific arguments canvassed by the parties.

The arguments on the constitutionality of s 33A(1)(a) of the MDA The Petitioner’s arguments

The Petitioner’s case that s 33A(1)(a) of the MDA is unconstitutional may be summarised as follows: Section 33A(1)(a) directs the court to treat DRC admissions (which are executive orders) as convictions (which are judicial orders) in order to impose the enhanced minimum punishments in s 33A(1) on an offender. This legislative direction as to the effect of prior executive acts in the sentencing process intrudes into the sentencing function, which is part of the judicial power, and therefore violates the principle of separation of powers¹ (citing Kable v The Director of Public Prosecutions for the State of New South Wales (1996) 189 CLR 51 (“Kable”), Public Prosecutor v Dato’ Yap Peng [1987] 2 MLJ 311 (“Dato’ Yap Peng”), Moses Hinds and Others v The Queen [1977] AC 195 (“Hinds”), Don John Francis Douglas Liyanage and Others v The Queen [1967] 1 AC 259 (“Liyanage”), Lim Keng Chia v Public Prosecutor [1998] 1 SLR(R) 1 (“Lim Keng Chia”), Public Prosecutor v Boon Kiah Kin [1993] 2 SLR(R) 26 and United States v Klein 80 US 128 (1871)). Section 33A(1)(a) also violates Art 12 of the Singapore Constitution in subjecting an offender with two prior DRC admissions to the same treatment as an offender with two prior court convictions² (citing Yong Vui Kong v Public Prosecutor and another matter [2010] 3 SLR 489 (“Yong Vui Kong”)). The prescribed mandatory minimum sentence of five years’ imprisonment and three strokes of the cane under ss 33A(1)(i) and 33A(1)(ii) respectively offends Art 9 of the Singapore Constitution as it is manifestly excessive, disproportionate and arbitrary, given that an offender who has two prior DRC admissions is effectively a first-time offender³ (citing Ong Ah Chuan and another v Public Prosecutor [1979–1980] SLR(R) 710 (“Ong Ah Chuan”)).

The Prosecution’s arguments

The Prosecution’s arguments in response to the Petitioner’s arguments may be summarised as follows: Section 33A(1)(a) of the MDA is not a legislative or executive usurpation of the judicial power. Punishment is Parliament’s prerogative, and must be distinguished from the sentencing discretion, which is the province of the courts. Parliament is entitled to set upper and/or lower limits on the punishment to be meted out for an offence, while the courts may only impose the sentences which they are authorised by law to impose⁴ (citing Hinds and State of South Australia v Totani and Another (2010) 242 CLR 1 (“Totani”)). Section 33A(1)(a) does not transfer or have the effect of transferring judicial power to the Executive as the CNB Director does not, when making a DRC admission order, exercise a judicial function (citing Lim Keng Chia). The prior DRC admissions and prior convictions stated in s 33A(1) are merely the prescribed conditions that serve to trigger the imposition of the enhanced minimum punishments under the s 33A(1) sentencing scheme (citing Hinds and Totani). Parliament is entitled to enact legislation which provides for harsher punishment for...