Nguyen Tuong Van v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 20 October 2004
• Date: 20 October 2004
• Docket Number: Criminal Appeal No 5 of 2004
• Court: Court of Appeal (Singapore)

Singapore, Court of Appeal.

(Yong Pung How CJ; Chao Hick Tin JA and Lai Kew Chai J)

Nguyen Tuong Van

and

Public Prosecutor1

Human rights — Right to life — Right to equal protection — Mandatory death penalty — Whether constitutional — Whether mandatory death penalty arbitrary — Whether depriving of life in accordance with the law — Whether customary international law rule prohibiting hanging as mode of execution — Whether domestic legislation inconsistent with Singapore Constitution — Whether mandatory death penalty violating Articles 9, 12 and 93 of Singapore Constitution

Relationship of international law and municipal law — Customary international law — Prohibition against cruel and inhuman treatment or punishment — Whether specific customary international law prohibition against hanging as mode of execution — State practice — Whether sufficient evidence for customary international law prohibition against death penalty generally — Whether customary international law rule or domestic statute prevailing in event of inconsistency — Whether Singapore Constitution importing customary international law into Singapore — Treaties and customary international law — Vienna Convention on Consular Relations, 1963 — Whether stating principles of customary international law

Consular relations — Treaties — Vienna Convention on Consular Relations, 1963 — Singapore not party to Convention — Prevailing norms of conduct between States — Whether requirement of consular access before statements recorded — Whether statements admissible — Whether breach of Article 36(1) — The law of Singapore

Summary: The facts:—The appellant, an Australian national of Vietnamese origin, was arrested on suspicion of drug trafficking at Singapore airport

on his way back to Australia from Vietnam. The appellant gave statements2 regarding the two drug packets which had been found on his person. He was later convicted in the High Court of the capital charge of importing more than 15 grammes of diamorphine into Singapore without authorization under the Misuse of Drugs Act 2001. He appealed against his conviction and sentence of death.

The appellant argued inter alia that the statements were inadmissible evidence since they were recorded in breach of the Criminal Procedure Code 1985 and the Evidence Act 1997, and of Article 36(1) of the Vienna Convention on Consular Relations, 1963.3 The appellant also maintained that the death sentence given under section 7 of the Misuse of Drugs Act 2001 was a maximum and not a mandatory sentence. In any event, he contended that the death penalty was illegal because it violated Articles 9,4 125 and 936 of the Singapore Constitution.

Held:—The appeal was dismissed.

(1) There was no breach of Article 36(1) of the Vienna Convention on Consular Relations, 1963. The Convention was a key instrument in the regulation and conduct of consular activities. Although not a party to the Convention, Singapore did conform to such prevailing norms of conduct between States as those in Article 36(1). Article 36(1) did not provide for consular access before interrogation or any action potentially detrimental to the foreigner's rights.7 Statements were admissible since there was no requirement of consular access before they were recorded. Pursuant to Article 36(2), the rights referred to in Article 36(1) had to be exercised in conformity with Section 122(5) of the Criminal Procedure Code 1985 and Section 24 of the Evidence Act 1997. The cautioned statement was admissible under Section 24 of the Evidence Act 1997 since what the appellant had said connected him to the offence (paras. 21–35).

(2) There was no doubt that the death sentence was mandatory for the offence committed by the appellant. The mandatory death penalty did not violate the principle of equal protection in Article 12(1) of the Constitution. In the absence of full arguments on the issue, the differentiating measure of 15 grammes was valid (paras. 54–77).

(3) There was no violation of Article 9 of the Constitution.

(a) The mandatory death sentence prescribed under the Misuse of Drugs Act was not arbitrary. It was sufficiently discriminating to obviate any inhumanity in its operation and deprived life ‘in accordance with law’. The common law of Singapore had to be developed by its judiciary for the common good. The judiciary declared any legislation inconsistent with the Constitution to be invalid to the extent of the inconsistency. Any customary international law rule had to be clearly and firmly established before its adoption by the courts. The judiciary was responsible for considering and giving effect to any rule necessarily concomitant with the civil and civilized society which every Singaporean citizen had to endeavour to preserve and protect (paras. 78–88).

(b) While it was widely accepted that the prohibition against cruel and inhuman treatment or punishment amounted to a rule in customary international law, there was not sufficient State practice that this included a specific prohibition against hanging as a mode of execution. In fact, there was insufficient evidence for a customary international law prohibition against the death penalty generally. Even if there was a customary international law rule prohibiting execution by hanging, the domestic statute providing for such punishment would prevail in the event of inconsistency (paras. 89–94).

(4) The mandatory death penalty did not breach the separation of powers principle in Article 93. The Privy Council had not pronounced mandatory death sentences absolutely unconstitutional and there might be circumstances in which they were sufficiently discriminating (paras. 95–8).

The following is the text of the judgment of the Court, delivered by Lai Kew Chai J:

1. The appellant, an Australian national of Vietnamese origin, aged 24, was convicted of the capital charge of importing into Singapore on 12 December 2002 396.2g of diamorphine without authorisation under the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (‘MDA’). His appeal before us is against both the conviction and the sentence of death.

THE FACTS

2. The evidence led by the Prosecution at the trial proved the following facts. At about 3.06pm on 12 December 2002, SilkAir Flight MI 622 from Phnom Penh, Cambodia, landed at Changi International Airport, Singapore. The appellant was a passenger on this flight. He was due to board Qantas Airways Flight QF 10 to Melbourne, which was to depart Singapore at 8.15pm the same day.

3. At about 7.45pm, the appellant reached Gate C22 at Terminal 1 and began the process of boarding the Qantas flight. When he walked through the metal detector, the alarm was triggered. An airport police officer searched him with a hand-held metal detector, but found nothing. When the officer tapped the appellant's back with her hand, she felt something bulky. She alerted the other airport police officers on duty. Together, they brought the appellant to the search room within Gate 22 for a thorough search. His haversack and business bag were taken along.

4. Inside the search room, the appellant voluntarily took off his jacket and shirt. He turned around and showed one of the airport police officers his back. A plastic packet was strapped to the appellant's lower back with yellow and white adhesive tapes. At this point, the airport police officer notified his superior, Sergeant Teh Kim Leng (‘Sgt Teh’), of the find. The appellant became very distressed by this time. He cried and hit his head on the wall. When Sgt Teh arrived at the search room at about 7.55pm, he found the appellant sitting on the floor, holding his head in his hands.

5. Sgt Teh asked the appellant what was on his back. The appellant replied that it was heroin. Sgt Teh assisted the appellant in taking the packet off his back. The packet was placed on the table. When Sgt Teh asked the appellant to declare if there was anything in his luggage, he opened his haversack and took out a second packet, which he handed to Sgt Teh.

The Oral Statement

6. At about 8.11pm, two narcotics officers from the Central Narcotics Bureau (‘CNB’) Changi Airport Team arrived at the search room. At about 9.10pm, CNB officers from CNB Headquarters arrived to take charge of the case. The appellant was escorted to an interview room at the West Wing Arrival Hall. In the interview room, and in the presence of three CNB officers, the appellant gave the following oral statement (‘the oral statement’):

Q: What this?

A: I know it heroin although different colour.

Q: Number 3 or 4?

A: I don't know.

Q: Who asked you to bring?

A: I know him by ‘Sun’.

Q: To bring where?

A: Melbourne and someone [will] take from me or maybe Sydney.

Q: Who will receive the drug at Australia?

A: Someone will recognized me and told me he likes basketball.

7. At about 11.40pm, the party of CNB officers escorted the appellant from Changi Airport to CNB Headquarters at Police Cantonment Complex, taking with them the two packets and other case exhibits. They arrived at the headquarters at about 12.05am on 13 December 2002. The investigation officer was one Assistant Superintendent Toh Soon Teck (‘ASP Toh’). ASP Toh was briefed. He took custody of the accused and the two packets and other case exhibits. The appellant was taken for a routine urine test. Photographs were taken of the appellant and of the various exhibits recovered from his person.

Weight of Drug Exhibits

8. At about 1.50am, ASP Toh weighed the two packets in the presence of the appellant. He marked the packet taken off the appellant's back as ‘Exhibit A’ and the packet taken from the haversack as ‘Exhibit B1’. Both packets were placed in separate plastic ‘Ziploc’ bags for weighing. ASP Toh used an uncalibrated weighing machine and found the approximate weight of each packet to be as follows:

• (a) Exhibit A (recovered from the appellant's back) 381.66g

• (b) Exhibit B (recovered from the haversack) 380.36g

9. After weighing, ASP Toh locked up the two drug exhibits...