Ong Ah Chuan v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Lord Diplock
• Judgment Date: 15 October 1980
• Neutral Citation: [1980] SGPC 6
• Date: 1980
• Published date: 19 September 2003
• Year: 1980
• Plaintiff Counsel: Mervyn Heald QC and G Newman,AP Lester QC, Alan Newman and David Pannick (Kingsford Dorman)
• Citation: [1980] SGPC 6
• Defendant Counsel: SC Silkin QC MP, S McKinnon QC and B Bhalla (Jaques & Co)
• Court: Privy Council
• Subject Matter: art 12(1)Constitution of the Republic of Singapore,Rebuttable by accused,Mandatory death penalty,Constitutional Law,Trafficking in controlled drugs,Constitution,Principles of interpretation,Reasonable relation to social object of the law,Whether dissimilarity in circumstances justifying differentiation in punishment purely arbitrary,Misuse of Drugs Act,arts 4, 9(1) & 12(1) Constitution of the Republic of Singapore,Interpretation,Equality before the law,s 29 & Second Schedule Misuse of Drugs Act 1973,Mandatory sentence of death,Whether statutory presumption under s 15 of Misuse of Drugs Act 1973 inconsistent with Constitution,Whether mandatory sentence of death contrary to Constitution,Westminster constitutions,ss 2, 3, 6, 10, 15, 16, 19, 29a & Second Schedule Misuse of Drugs Act 1973,Criminal Law,Statutory offences,Whether presumption inconsistent with Constitution and void,Whether inconsistent with Constitution,Presumption,Misuse of Drugs Act 1973,Discrimination,Possession of heroin exceeding 15g,Inconsistency with art 12(1)

These two appeals are against convictions for offences of trafficking in heroin contrary to s 3 of the Misuse of Drugs Act 1973. As the amount of heroin involved exceeded 15g in each case sentence of death was imposed on both appellants. Sentence of death is mandatory under s 29 of that Act and the revised Second Schedule to it that was substituted for the original Second Schedule by s 13 of the Misuse of Drugs (Amendment) Act 1975. Their Lordships will call the 1973 Act, as so amended, `The Drugs Act`. The appeals are also against the imposition of the death sentence, upon the ground that the statutory provision under which it was imposed is inconsistent with the Constitution and accordingly is void under art 4.

Wee Chong Jin CJ (delivering oral judEMPHASIS)

The appellant, Ong Ah Chuan, was found guilty of unlawfully trafficking in 209.84g of diamorphine in contravention of s 3(a) of the Misuse of Drugs Act 1973 and sentenced to death.

Choor Singh and Rajah JJ

The accused was charged and tried before us on the following charge:

That you, Ong Ah Chuan, on or about 2 June 1977 at about 12 noon in front of No 270, Bukit Timah Road, Singapore, did traffic in a controlled drug specified in Class `A` of Pt I of the First Schedule to the Misuse of Drugs Act 1973 (No 5 of 1973) to wit, 209.84g of diamorphine without any authorization under the said Act or the regulations made thereunder and you have thereby committed an offence under s 3(a) of the Misuse of Drugs Act 1973 (No 5 of 1973) and punishable under s 20 of the said Act.

On 2 June 1977 at about 9.15am, acting, on information received, acting senior narcotics officer Yeo Kiah Hee (PW6) and assistant narcotics officer Ramli arrived on their motor-cycle at Block 26 Marsiling Drive, Singapore. They stationed themselves on the ground floor of block 30 Marsiling Drive and commenced observation on the flat of the accused, No 235-E block 26 Marsiling Drive.

At about 9.30am, Yeo (PW6) saw a motor car No SX 9098, driven by the accused, arriving at Block 26. The accused parked the car in a lane next to block 26. He then got out of the car, locked it, and walked towards the lift and staircase landing of the ground floor of block 26. A few seconds later, the accused was seen by the two officers walking along the corridor of the 5th floor of block 26 towards his flat and entering it. Yeo (PW6) and Ramli continued to keep observation on the flat.

About an hour later acting senior narcotics officer, Teo Ho Peng (PW7) and assistant narcotics officer Chua Swah Hai arrived at Block 20 on their motor-cycle. On their arrival they noticed that SX 9098 had been parked in the lane adjacent to Block 26. They signalled their arrival to Yeo (PW6) and Ramli and they too proceeded to keep observation on the accused`s flat and motor car SX 9098 from the ground floor of Block 28.

At about 11.25am the accused was seen leaving his flat alone and walking along the corridor towards the lift and staircase landing. As he entered the staircase landing, he was out of sight of the officers for a few seconds. He was then seen coming out of the staircase landing on the ground floor of block 26 carrying a plastic bag in his right hand. The accused walked towards car SX 9098. On reaching it he unlocked the front passenger door, placed the plastic bag in the car, closed the door, walked towards the driver`s door, unlocked it and got into the driver`s seat. He started the car and drove it in the direction of Admiralty Road. The four narcotics officers began to trail the accused`s car on their two motor-cycles. The accused proceeded towards the city along Admiralty Road and thence into and along Woodlands Road. At Bukit Panjang Circus, the accused drove into Upper Bukit Timah Road towards Ewart Circus. At Ewart Circus, the car proceeded into Jalan Anak Bukit and thence to Bukit Timah Circus. At Bukit Timah Circus the accused drove into and along Dunearn Road towards Newton Circus. At Newton Circus the car turned left into Bukit Timah Road and stopped in front of No 270 Bukit Timah Road. Throughout the whole journey which had taken a little over half-an-hour the officers did not lose sight of the accused`s car. By this time the four officers, Teo (PW7), Chua, Yeo (PW6) and Ramli, who were close on his tail had also turned left into Bukit Timah Road and stopped their motor-cycles some ten yards or so behind car SX 9098. The accused alighted from the car, locked it and walked away from it in the direction of the officers. By this time, Yeo (PW6), who had been riding pillion, got off the motor-cycle and proceeded towards the accused. Chua, who had also been riding pillion on the other motor-cycle, joined him. Yeo (PW6) approached the accused and after identifying himself as a Government man, detained him. He then seized a bunch of keys from the accused`s hand and proceeded to search him. From the accused`s waist front trousers pocket he recovered a plastic bag containing light brownish powder, which he suspected to be diamorphine hydrochloride. Thereupon he immediately placed the accused under arrest and instructed Chua to handcuff him. The accused was escorted to motor car SX 9098 by Chua and Yeo (PW6) and from in between the front seats of the car Yeo (PW6) seized a plastic bag, inside which there was another plastic bag containing some clothing and a parcel wrapped in a Chinese newspaper. Yeo (PW6) unwrapped the parcel in the presence of the accused and found yet another plastic bag which contained brownish granular solids which he suspected to be diamorphine hydrochloride. The said light brownish powder and the said brownish granular solids were sent to the Department of Scientific Services where Mr Lim Han Yong, the government chemist, analysed the said light brownish powder and the said brownish granular solids and found the diamorphine content of each of them to be 3.84g and 206.0g respectively.

At the close of the prosecution case counsel for the accused submitted that the accused on the evidence before the court had no case to meet on the charge as framed. He submitted that as the accused was merely carrying the diamorphine and as there was no evidence of its being delivered to anyone the accused was not trafficking within the meaning of the Misuse of Drugs Act 1973. In support of his proposition he cited the case of Seow Koon Guan v PP [1978-1979] SLR 46 (the Seow case) and two Canadian cases, namely, (1) R v McDonald and R v Harrington & Scosky (1963) 43 WWR 337 (the Canadian Drug case) and (2) R v McMyn [1941] 4 DLR 268 (the Canadian Potatoes case).

In our view the Seow case did not help the accused. There the accused was charged with being in possession of 55.48g of diamorphine for the purpose of trafficking in a controlled drug and thereby committing an offence under s 3(c) of the Act. The Court of Appeal ruled that although posse ssion per se o a controlled drug constituted an offence under s 6(a) of the Act, a person in possession of such a drug can be charged with and found guilty of an offence under s 3(c) of the Act only if it is proved that he did or offered to do any act preparatory to or for the purpose of trafficking therein. The facts in the instant case are that the accused transported in a car heroin from Woodlands to 270 Bukit Timah Road. The decision in Seow`s case was therefore inapplicable.

The headnote to the Canadian drug case reads as follows:

Mere possession of one-quarter ounce of pure heroin, with no other attendant circumstances, held, not to justify an inference of trafficking.

Transporting drugs for mere personal purposes or use, as distinct from transporting for other purposes, does not of itself afford sufficient evidence of the offence of trafficking. `Transport` in the definition of `traffic` in s 2(i) of the Narcotic Control Act, Can 1960-61, Ch 35 is not meant in the sense of mere conveying or carrying or moving from one place to another, but in the sense of doing so to promote the distribution of the narcotic to another.

The facts in the Canadian Drug case were as follows:

Harrington, followed soon after by Scosky, was seen to enter the washroom of a service station in which was secreted a cache (No 31) estimated to contain one-quarter ounce of pure heroin wrapped in a particular Vancouver newspaper of recent date. The appellants remained in the washroom for a short period, then emerged and left the service station premises together in a motor car which, for some time thereafter, was kept under observation by the occupants of a police car. An immediate search of the washroom showed that the drug cache was missing.

Later, one of the pursuing police officers picked up pages of a newspaper identified as of the same dates as the wrapping on the drug package, which was seen to be ejected from the car occupied by the appellants.

It was shown that one-quarter ounce of pure heroin when mixed with lactose and placed in gelatin capsules, would make up not less than 100 capsules, such as commonly used by drug addicts. Both appellants were shown to have been addicted to the use of drugs.

It is to be noted that in this Canadian case the decision was based on the provisions of the Narcotic Control Act, Canada 1960-61 Ch 35 which provisions do not find a place in our Act. For this reason, if not for any other, we were of the view that this case had no relevance in the construing of our Act. It is further to be noted that no heroin was found on or in the possession of any of the two accused nor was there any evidence that they had transported heroin. Therefore we rejected this case as not pertinent to the instant case. Here we would like to refer to our judgment in the case of PP v Teh Sin Tong (CC 28/76) (unreported) where we convicted the accused under s 3(a) of the Act of having transported heroin from Johore Bahru to the Woodland Custom`s Checkpoint, Singapore. The conviction has been upheld by both the Court of Criminal...