Nguyen Tuong Van v Public Prosecutor

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
Judgment Date20 October 2004
Date20 October 2004
Docket NumberCriminal Appeal No 5 of 2004

[2004] SGCA 47

Court of Appeal

Yong Pung How CJ

,

Chao Hick Tin JA

and

Lai Kew Chai J

Criminal Appeal No 5 of 2004

Nguyen Tuong Van
Plaintiff
and
Public Prosecutor
Defendant

Joseph Theseira (Joseph Theseira) and Tito Shane Isaac (Tito Isaac & Co) for the appellant

Khoo Oon Soo and Han Ming Kuang (Deputy Public Prosecutors) for the respondent.

Abdul Rashid bin Mohamed v PP [1993] 3 SLR (R) 656; [1994] 1 SLR 119 (folld)

Anandagoda v The Queen [1962] 1 WLR 817 (folld)

Avena and other Mexican Nationals (Mexico v United States of America) (31 March 2004, ICJ General List No 128) (folld)

Boyce v The Queen [2005] 1 AC 400; [2004] UKPC 32 (refd)

Campbell v Wood18 F 3d 662 (1994) (distd)

Chan Hiang Leng Colin v PP [1994] 3 SLR (R) 209; [1994] 3 SLR 662 (folld)

Chung Chi Cheung v The King [1939] AC 160 (folld)

Collco Dealings Ltd v Inland Revenue Commissioners [1962] AC 1 (folld)

Kok Hoong Tan Dennis v PP [1996] 3 SLR (R) 570; [1997] 1 SLR 123 (refd)

Lau Cheong v HKSAR [2002] 2 HKLRD 612 (distd)

Matthew v The State [2005] 1 AC 433; [2004] UKPC 33 (refd)

Mithu v State of PunjabAIR 1983 SC 473 (distd)

Ong Ah Chuan v PP [1979-1980] SLR (R) 710; [1980-1981] SLR 48 (folld)

PP v Lau Kee Hoo [1983] 1 MLJ 157 (refd)

PP v Loo Kun Long [2003] 1 SLR (R) 28; [2003] 1 SLR 28 (folld)

PP v Taw Cheng Kong [1998] 2 SLR (R) 489; [1998] 2 SLR 410 (folld)

Reyes v The Queen [2002] 2 AC 235 (distd)

Taw Cheng Kong v PP [1998] 1 SLR (R) 78; [1998] 1 SLR 943 (folld)

Watson v The Queen [2005] 1 AC 472; [2004] UKPC 34 (distd)

Constitution of the Republic of Singapore (1985 Rev Ed,1999 Reprint)Arts 9, 12,93 (consd);Arts 4,22P

Criminal Procedure Code (Cap 68,1985 Rev Ed)ss 122 (5),122 (6)

Dangerous Drugs Act 1955 (Cap 151, 1970 Rev Ed)

Drugs (Prevention of Misuse) Act1969 (Cap 154, 1970 Rev Ed)

Evidence Act (Cap 97,1997 Rev Ed)s 24 (consd)

Interpretation Act (Cap 1,2002 Rev Ed)ss 9A (1), 41 (consd)

Misuse of Drugs Act (Cap 185,2001 Rev Ed)ss 7, 53 (consd);s 33,Second Schedule

Constitutional Law–Equal protection of the law–Whether mandatory death penalty under Misuse of Drugs Act violating equal protection accorded under Constitution–Article 12 Constitution of the Republic of Singapore (1999 Reprint), s 7 Misuse of Drugs Act (Cap 185, 2001 Rev Ed)–Constitutional Law–Fundamental liberties–Right to life and personal liberty–Whether mandatory death penalty under Misuse of Drugs Act amounting to arbitrary punishment not being deprivation of life or personal liberty in accordance with law–Whether death by hanging constituting cruel and inhuman treatment or punishment–Whether death penalty violating Constitution–Article 9 Constitution of the Republic of Singapore (1999 Reprint), s 7 Misuse of Drugs Act (Cap 185, 2001 Rev Ed), Art 5 Universal Declaration of Human Rights–Constitutional Law–Judicial power–Whether mandatory death penalty under Misuse of Drugs Act violating principle of separation of powers enshrined in Constitution –Article 93 Constitution of the Republic of Singapore (1999 Reprint), s 7 Misuse of Drugs Act (Cap 185, 2001 Rev Ed)–Criminal Law–Statutory offences–Misuse of Drugs Act–Applicability of s 53 Misuse of Drugs Act–Sections 7, 53 Misuse of Drugs Act (Cap 185, 2001 Rev Ed)–Criminal Procedure and Sentencing–Statements–Admissibility–Failure to allow appellant consular access before statements recorded–Whether statements recorded in breach of Art 36 (1) Vienna Convention on Consular Relations 1963–Whether statements admissible–Articles 36 (1), (2) Vienna Convention on Consular Relations 1963–Criminal Procedure and Sentencing–Statements–Admissibility–Whether contents of cautioned statement amounting to confession–Section 24 Evidence Act (Cap 97, 1997 Rev Ed)–International Law–Human rights–Whether death by hanging a breach of international law–Article 5 Universal Declaration of Human Rights–Statutory interpretation–Interpretation Act–Purposive approach–Whether s 41 Interpretation Act applicable where intent of Parliament clear–Sections 9A (1), 41 Interpretation Act (Cap 1, 2002 Rev Ed)–Statutory interpretation–Penal statutes–Death penalty under Misuse of Drugs Act –Whether maximum sentence or mandatory sentence–Section 7 Misuse of Drugs Act (Cap 185, 2001 Rev Ed)

The appellant was convicted of importing 396.2g of diamorphine into Singapore without authorisation under s 7 of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) (“MDA”) and sentenced to death. He appealed against both his conviction and his death sentence.

In arguing against his conviction, the appellant repeated the submissions made before the trial court that (a) the cautioned statement was not a confession under s 24 of the Evidence Act (Cap 97, 1997 Rev Ed) (“EA”) and was therefore inadmissible; (b) the oral and cautioned statements made by him were inadmissible as they were taken in breach of Art 36 (1) of the Vienna Convention on Consular Relations 1963 (“VCCR”), which provides for consular access for an accused who has been arrested by another State; and (c) the integrity of the drug exhibits had been undermined.

In attacking the legality of the death sentence, the appellant submitted that the death sentence prescribed under s 7 of the MDA was merely a maximum and not a mandatory sentence. The appellant relied on s 53 and the Second Schedule of the MDA as well as ss 9A (1) and 41 of the Interpretation Act (Cap 1, 2002 Rev Ed) (“IA”). The appellant further contended that (a) a mandatory death sentence upon conviction for trafficking in more than 15g of diamorphine violated Art 12 of the Constitution of the Republic of Singapore (1999 Reprint) (“the Constitution”); (b) the mandatory death sentence violated Art 9 of the Constitution as it amounted to arbitrary punishment not in accordance with law; (c) death by hanging was grossly disproportionate in relation to the offence and was a cruel, inhuman and degrading punishment constituting a breach of international law; and (d) the mandatory death sentence violated the principle of separation of powers enshrined in Art 93 of the Constitution.

Held, dismissing the appeal:

(1) What the appellant had said in his cautioned statement connected him to the offence. The statement was therefore admissible: at [22].

(2) Although not a party to the VCCR, Singapore conformed to the prevailing norms of conduct between States such as those set out under Art 36 (1) of the VCCR. Art 36 (1) did not provide for consular access for an accused before any statements were recorded. As such, there was no breach of Art 36 (1) and the submission that the statements were inadmissible was without merit: at [23], [24] and [33].

(3) In the event that Art 36 (1) of the VCCR was breached, Art 36 (2) provided that the rights created under the Article were subject to domestic legislation. The nature of any violation and possible prejudice had to be considered under and in the light of the rules governing admissibility found in s 122 (5) of our Criminal Procedure Code (Cap 68, 1985 Rev Ed) or s 24 of our Evidence Act (Cap 97, 1997 Rev Ed): at [34] and [35].

(4) It was crucially important to ensure that there had been no mixing of the drug exhibits or tampering of the contents. There was no suggestion of this. The drug exhibits remained in the custody and control of the investigation officer at all material times and were not mixed or tampered with. They were properly handed over from one officer to another. The integrity and identity of the drug exhibits were not compromised at any stage: at [38] to [40].

(5) It was clearly and expressly provided that the only punishment for the offence of the unauthorised import of more than 15g of diamorphine was the death sentence. If Parliament had intended to confer on the sentencing court the discretion to impose a range of punishments, it could have provided for such discretion. In view of the range of sentences prescribed for the import of a range of diamorphine below 15g and not less than 10g, it was illogical to think that Parliament would in respect of any unauthorised import of diamorphine of more than 15g confer a discretion on the sentencing court to impose any sentence up to the maximum sentence of death. The assertion that the prescribed capital punishment was the maximum sentence implied that there was a more serious sentence than the death sentence, and was therefore untenable: at [48] to [50].

(6) Section 53 of the MDA was solely applicable to the specific and particular situation where the Public Prosecutor, in his sole discretion, preferred such a charge before the lower court having come to the view that the sentence of death was not appropriate. In the event, the District Court could lawfully impose a sentence on an offence under s 7 (4) (a) of the MDA as set out in the Second Schedule. Where the intent of Parliament was clear, s 9A (1) should apply to the exclusion of s 41 of the Interpretation Act (Cap 1, 2002 Rev Ed): at [51].

(7) Under the two-step “reasonable classification” test for validity under Art 12 (1) of the Constitution, a “differentiating measure” such as the 15g differentia would be valid if (a) the classification was founded on an intelligible differentia and (b) the differentia bore a rational relation to the object sought to be achieved by the law in question. The appellant did not provide sufficient material to support the conclusion that s 7 read with the Second Schedule of the MDA violated Art 12 on the basis that there was no rational justification for the 15g differentia. In the absence of full arguments on the issue, the 15g differentia was upheld, and the argument that the mandatory death penalty violated Art 12 (1) was dismissed: at [70], [74] and [77].

(8) The phrase “in accordance with law” in Art 9 (1) of the Constitution went beyond Parliament-sanctioned legislation to include fundamental rules of natural justice. While international norms and jurisprudence showed that...

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