PP v Adnan bin Kadir

JurisdictionSingapore
CourtCourt of Three Judges (Singapore)
Judgment Date28 June 2013
Date28 June 2013
Docket NumberCriminal Reference No 3 of 2012

Court of Appeal

Chao Hick Tin JA

,

V K Rajah JA

and

Lee Seiu Kin J

Criminal Reference No 3 of 2012

Public Prosecutor
Plaintiff
and
Adnan bin Kadir
Defendant

Lee Lit Cheng and Wong Woon Kwong (Attorney-General's Chambers) for the applicant

Abraham Vergis and Clive Myint Soe (Providence Law Asia LLC) for the respondent.

AG v Lau Chi-sing [1987] HKLR 703 (refd)

Central India Spinning and Weaving and Manufacturing Co Ltd v Municipal Committee, Wardha [1958] SCR 1102 (refd)

Gramophone Co of India Ltd v Birendra Bahadur Pandey (1984) 2 SCC 534 (refd)

Ko Mun Cheung v PP [1992] 1 SLR (R) 887; [1992] 2 SLR 87 (folld)

Lau Chi Sing v PP [1988] 2 SLR (R) 451; [1988] SLR 106 (distd)

Lee Chez Kee v PP [2008] 3 SLR (R) 447; [2008] 3 SLR 447 (refd)

Ng Kwok Chun v PP [1992] 3 SLR (R) 256; [1993] 1 SLR 55 (folld)

Ng Yang Sek v PP [1997] 2 SLR (R) 816; [1997] 3 SLR 661 (distd)

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

Organon (India) Ltd v Collector of Excise 1995 Supp (1) SCC 53 (refd)

PP v Ko Mun Cheung [1990] 1 SLR (R) 226; [1990] SLR 323 (folld)

PP v Low Kok Heng [2007] 4 SLR (R) 183; [2007] 4 SLR 183 (folld)

PP v Majid bin Abdul Rahim [2007] SGDC 222 (folld)

PP v Ng Kwok Chun [1992] 1 SLR (R) 159; [1992] 1 SLR 877 (folld)

Tan Kheng Chun Ray v PP [2012] 2 SLR 437 (refd)

Tan Kiam Peng v PP [2008] 1 SLR (R) 1; [2008] 1 SLR 1 (refd)

Trade Facilities Pte Ltd v PP [1995] 2 SLR (R) 7; [1995] 2 SLR 475 (distd)

Tse Po Chung Nathan v PP [1993] 1 SLR (R) 308; [1993] 1 SLR 961 (folld)

USA v Robert Alan Probert 737 F Supp 1010 (ED Mich 1989) (refd)

Warner v Metropolitan Police Commissioner [1969] 2 AC 256 (refd)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) ss 397 (2) , 397 (5)

Dangerous Drugs Act (Cap 151, 1970 Rev Ed) s 2

Evidence Act (Cap 97, 1997 Rev Ed) s 107

Interpretation Act (Cap 1, 2002 Rev Ed) s 2 (1) (consd) ; s 9 A (2)

Misuse of Drugs Act 1973 (Act 5 of 1973)

Misuse of Drugs Act (Cap 185, 1985 Rev Ed) s 7

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) s 7 (consd) ; ss 5, 5 (2) , 8 (a) , 33

Misuse of Drugs (Amendment) Act 1975 (Act 49 of 1975)

Sale of Drugs Act (Cap 282, 1985 Rev Ed) s 2

Trade Marks Act (Cap 332, 1992 Rev Ed) s 73

Trade Marks Act (Cap 332, 2005 Rev Ed) s 49

CP and Berar Municipalities Act 1922 (Act No 2 of 1922) (India) s 66 (1) (o)

Controlled Substances Import and Export Act 21 USC (US) §§ 951 (a) (1) , 952 (a)

Copyright Act 1957 (Act No 14 of 1957) (India) s 51 (b) (iv)

Dangerous Drugs Ordinance (Cap 134) (HK) ss 2, 4

Drugs (Prevention of Misuse) Act 1964 (c 64) (UK) s 1 (1)

General Clauses Act 1897 (Act No 10 of 1897) (India)

Opium Act 1878 (Act No 1 of 1878) (India) s 5

Criminal Law—Statutory offences—Misuse of Drugs Act (Cap 185, 2008 Rev Ed)—Accused bringing drugs into Singapore—Accused pleading guilty to importing drugs but claiming in mitigation that drugs were for his own consumption—Whether offence of importation required Prosecution to prove beyond reasonable doubt that accused imported drugs for purpose of trafficking—Section 7 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Statutory Interpretation—Definitions—‘Import’—Section 7 Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Statutory Interpretation—Interpretation Act (Cap 1, 2002 Rev Ed)—Effect of s 2 (1) Interpretation Act (Cap 1, 2002 Rev Ed)—Section 2 (1) Interpretation Act (Cap 1, 2002 Rev Ed)

The respondent (‘the Respondent’) pleaded guilty in the District Court to importing 0.01 g of diamorphine, which is an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the MDA’). In mitigation, he asserted, inter alia, that he had imported the drugs for his own consumption. The Prosecution disputed this assertion but argued that it did not, in any event, qualify the Respondent's guilty plea. The senior district judge agreed and sentenced the Respondent to the mandatory minimum punishment of five years' imprisonment and five strokes of the cane.

The Respondent then appealed against the sentence imposed, reiterating that he had brought the drugs into Singapore for his own consumption. The High Court held that s 7 of the MDA required the Prosecution to prove, beyond a reasonable doubt, that the accused imported the drugs concerned for the purpose of trafficking. Since this was not proven by the Prosecution, the High Court set aside the Respondent's conviction and remitted the case to the District Court for a new trial.

The Public Prosecutor then referred a question of law of public interest to the Court of Appeal, viz, whether in the case of a prosecution for an offence under s 7 of the MDA, the Prosecution bore the burden of proving, beyond a reasonable doubt, that the accused imported the controlled drug for the purpose of trafficking (‘the Question’).

Held, answering the Question in the negative, setting aside the orders of the High Court and dismissing the respondent's appeal against sentence:

(1) Section 2 (1) of the Interpretation Act (Cap 1, 2002 Rev Ed) (‘the IA’) gave the word ‘import’ its plain ordinary meaning, viz, the bringing of an object into the country. This definition did not require that the object had to be brought into Singapore for any particular purpose before it would qualify as an act of importation. Therefore, if this was the correct interpretation of the term ‘import’, then the answer to the Question would be ‘No’: at [6].

(2) Section 2 (1) stated that the definitions in the IA shall apply unless the written law expressly provided otherwise or unless ‘there is something in the subject or context inconsistent with such construction’. Since the MDA did not expressly assign a different meaning to the word ‘import’, the question was whether there was anything in the MDA, or the relevant extrinsic materials, that was inconsistent with the meaning of ‘import’ given by the IA, thereby suggesting that Parliament had in mind a different meaning when it used the word ‘import’ in s 7 of the MDA: at [7] to [9].

(3) Too much reliance was placed by the High Court on the views expressed in Ong Ah Chuan v PP [1979-1980] SLR (R)710 when the issue under consideration in that case and that in the present case were distinct. In the former, the issue related to the word ‘traffic’ as defined in the MDA and, in particular, the word ‘transport’ in that definition. In the present case, the issue concerned the word ‘import’ as defined in the IA. If drugs were not intended to be transferred from one person to another, but were intended to be for personal consumption, there could be no question of any trafficking - one could not traffic with oneself. There had to be two parties. On the other hand, ‘import’ was a simple English word whose sense was not in doubt, ie,the bringing of a thing into the country. It did not suggest the involvement of another party: at [37].

(4) There was no inherent inconsistency between the IA's definition of ‘import’ and the legislative intent behind the MDA as expressed in Parliament: at [51].

(5) There was simply no scope for the strict construction rule to operate in this case. The meaning of s 7 of the MDA was plain and unambiguous on its face. Moreover, the word ‘import’ was expressly defined in s 2 (1) of the IA, and there was no basis for departing from this definition. Consequently, neither the purposive approach nor the strict construction rule would allow the court to construe s 7 as requiring the importation of drugs to be for the purpose of trafficking: at [67].

(6) Although it appeared to be an attractive compromise to hold that proof that drugs were not imported for the purpose of trafficking was a defence to a s 7 charge, to do so would amount to judicial legislation, since no such proviso or exception could be found in the MDA. Any reform in this regard would have to come from Parliament: at [69].

(7) For the above reasons, the Question was answered in the negative, viz,s 7 of the MDA did not require the Prosecution to prove that the accused imported the controlled drug for the purpose of trafficking in order to secure a conviction under that section. Accordingly, the orders of the High Court were set aside and the Respondent's appeal against his sentence was dismissed, given that his sentence of five years' imprisonment and five strokes of the cane was the mandatory minimum sentence for his offence of importing a Class A drug: at [70] and [71].

[Observation: The presence of a minimum penalty was relevant to deciding how a penal provision should be construed - where the provision could reasonably be read in two or more different ways, the fact that it carried a harsh minimum penalty might persuade a court that Parliament had intended for the narrower construction to prevail. However, where the disputed word or phrase was not only plain and unambiguous in itself, but had further been expressly assigned its plain meaning by an interpretation section or statute, it became more difficult for the court to conclude that Parliament did not intend for those words to be given their plain meaning. Consequently, the evidence of contrary legislative intent would have to be very compelling in order for a court to depart from the ordinary meaning of such a provision: at [62] and [63].)

Judgment reserved.

Chao Hick Tin JA

(delivering the judgment of the court):

Introduction

1 This criminal reference arose from a decision of the High Court in Adnan bin Kadir v PP[2013] 1 SLR 276 (‘the Judgment’). In the light of the Judgment, the Public Prosecutor (‘the PP’) referred the following question of law of public interest (‘the Question’) to this court pursuant to s 397 (2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (‘the CPC’):

Whether, in the case of a prosecution for an offence under section 7 of the Misuse of Drugs Act (Chapter 185, 2008 Rev Ed), the Prosecution bears the burden of proving, beyond a reasonable doubt, that...

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1 books & journal articles
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