Prabagaran a/l Srivijayan v Public Prosecutor and other matters

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 02 December 2016
• Neutral Citation: [2016] SGCA 67
• Published date: 10 January 2017
• Date: 02 December 2016
• Year: 2016
• Hearing Date: 05 July 2016,10 March 2016
• Subject Matter: Fundamental liberties,Judicial Power,Remedies,Right to life and personal liberty,Constitutional Law
• Plaintiff Counsel: Eugene Thuraisingam, Jerrie Tan Qiu Lin and Suang Wijaya (Eugene Thuraisingam LLP)
• Defendant Counsel: Eugene Thuraisingam, Jerrie Tan Qiu Lin, Suang Wijaya (Eugene Thuraisingam LLP) and Chuang Wei Ping (WP Chuang & Co),Francis Ng, Wong Woon Kwong and Andre Chong (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2016] SGCA 67
• Docket Number: Criminal Motions Nos 1 to 4 of 2016

Chao Hick Tin JA (delivering the judgment of the court): Introduction

Section 33B (“s 33B”) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”) is, in many ways, sui generis in the criminal law of Singapore. Introduced by way of the Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012) (“the Amendment Act”), it confers upon the court the discretion to sentence a person, who is convicted of offences punishable by death, to suffer the lesser punishment of life imprisonment where certain statutorily prescribed requirements are met. The relevant provisions read as follows:

33B.—(1) Where a person commits or attempts to commit an offence under section 5(1) or 7, being an offence punishable with death under the sixth column of the Second Schedule, and he is convicted thereof, the court — (a) may, if the person satisfies the requirements of subsection (2), instead of imposing the death penalty, sentence the person to imprisonment for life and, if the person is sentenced to life imprisonment, he shall also be sentenced to caning of not less than 15 strokes; or

…

(2) The requirements referred to in subsection (1)(a) are as follows: (a) the person convicted proves, on a balance of probabilities, that his involvement in the offence under section 5(1) or 7 was restricted — (i) to transporting, sending or delivering a controlled drug; (ii) to offering to transport, send or deliver a controlled drug; (iii) to doing or offering to do any act preparatory to or for the purpose of his transporting, sending or delivering a controlled drug; or (iv) to any combination of activities in sub-paragraphs (i), (ii) and (iii); and (b) the Public Prosecutor certifies to any court that, in his determination, the person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities within or outside Singapore.

Section 33B(2) of the MDA (“s 33B(2)”) sets out two requirements. The first is that the person convicted proves, on a balance of probabilities, that his involvement in the offence was restricted to the acts prescribed in s 33B(2)(a) of the MDA. That is, his or her involvement was simply that of being a drug courier (“the Courier Requirement”). The second, set out in s 33B(2)(b) of the MDA (“s 33B(2)(b)”), is that the Public Prosecutor (“the PP”) certifies that the person has substantively assisted in “disrupting drug trafficking activities”. It is the latter that gives s 33B its distinctive character – it is a legislative prescription for the exercise of judicial power to be conditional upon the exercise of executive power. More pertinently, the reviewability of the exercise of the PP’s discretion is expressly stated in s 33B(4) of the MDA (“s 33B(4)”) in the following terms:

The determination of whether or not any person has substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities shall be at the sole discretion of the Public Prosecutor and no action or proceeding shall lie against the Public Prosecutor in relation to any such determination unless it is proved to the court that the determination was done in bad faith or with malice.

Section 33B came into effect on 1 January 2013 and it has engendered, it its brief existence, numerous applications by persons convicted of such offences but were unable to satisfy the prescribed requirements. Criminal Motions Nos 1 to 4 of 2016 (collectively, “the Motions” and respectively, “CM 1”, “CM 2”, “CM 3” and “CM 4”) are the latest in a string of such applications. All these challenges raise questions as to the constitutionality of s 33B(2)(b) and s 33B(4) (collectively, the “Impugned Provisions”), as well as s 33(1) read with the Second Schedule to the MDA (collectively, “the Second Schedule”).

Background

Given that the Motions challenge the constitutionality of the relevant provisions of the MDA, the facts relating to each of the applicants’ convictions are only of tangential relevance. Nevertheless, it is useful to set out briefly the procedural history of each of the applicants given that they themselves have drawn a distinction between those who were convicted before the Amendment Act came into force, and those who were convicted after.

CM 1

On 22 September 2014, the applicant in CM 1 was convicted of importing not less than 22.24g of diamorphine into Singapore on 12 April 2012, well above the 15g attracting the mandatory death penalty. The PP did not issue a certificate of substantive assistance under s 33B(2)(b) of the MDA, and the High Court judge accordingly imposed the mandatory sentence of death: Public Prosecutor v Prabagaran a/l Srivijayan [2014] SGHC 222 at [16]. No finding was made as to whether the applicant satisfied the Courier Requirement.

His appeal against his conviction, premised solely on the issue as to whether he had rebutted the presumptions of knowledge and possession under ss 18(2) and 21 of the MDA respectively, was dismissed on 2 October 2015: Prabagaran a/l Srivijayan v Public Prosecutor [2015] SGCA 64.

CM 2

On 22 November 2010, the applicant in CM 2 was convicted of having imported not less than 42.72g of diamorphine on 22 April 2009. As the Amendment Act had not come into effect at that time, the judge sentenced the applicant to death as mandated by s 33 read with the Second Schedule: Public Prosecutor v Nagaenthran A/L Dharmalingam [2011] 2 SLR 830. His appeal against his conviction, in which he argued that he had rebutted the presumption in s 18(2) of the MDA and had acted under duress, was dismissed on 27 July 2011: Nagaenthran A/L Dharmalingam v Public Prosecutor [2011] 4 SLR 1156.

Nevertheless, the execution of Nagaenthran was stayed in view of the fact that the government was then reviewing the mandatory death penalty in relation to drug offences, which eventually led to the enactment of the Amendment Act. Other than the introduction of s 33B in the MDA, the Amendment Act also provided a transitional framework for persons who had already been convicted and sentenced to death under the MDA, and had their appeal dismissed, to be resentenced in accordance with s 33B. Section 27(6) of the Amendment Act specifically provides for this scenario and it reads: (6) Where on the appointed day, the Court of Appeal has dismissed an appeal brought by a person for a relevant offence, the following provisions shall apply: (a) the person may apply to the High Court to be re-sentenced in accordance with section 33B of the principal Act; (b) the High Court shall determine whether the requirements referred to in section 33B of the principal Act are satisfied after hearing any further arguments or admitting any further evidence, and — (i) if the requirements referred to in section 33B of the principal Act are not satisfied, affirm the sentence of death imposed on the person; or (ii) if the requirements referred to in section 33B of the principal Act are satisfied, re-sentence the person in accordance with that section; (c) the decision of the High Court in paragraph (b) shall be deemed to be made in its original jurisdiction and an appeal may lie from such decision;

…

The applicant in CM 2 has yet to apply for resentencing under s 27(6) of the Amendment Act. On 10 December 2014, the Deputy Public Prosecutor informed the court and the then-counsel for the applicant that the PP would not be issuing a certificate of substantive assistance to the applicant. As a consequence, the applicant commenced Originating Summons No 272 of 2015 (“OS 272”) on 27 March 2015, seeking judicial review of the PP’s decision not to grant the certificate. OS 272 has yet to be heard at the time of this judgment.

CM 3

On 10 April 2013, the applicant in CM 3 was convicted together with a co-accused person of trafficking, in furtherance of a common intention, by jointly possessing for the purpose of trafficking not less than 72.5g of diamorphine. The High Court judge found that both the applicant and the co-accused satisfied the Courier Requirement. However, as the PP had only provided a certificate of substantive assistance to the co-accused and not the applicant, the co-accused was sentenced to life imprisonment and 15 strokes of the cane while the applicant was sentenced to death: Public Prosecutor v Abdul Haleem bin Abdul Karim and another [2013] 3 SLR 734.

The applicant appealed against the decision and at the same time, filed a criminal motion challenging the PP’s decision not to issue the certificate. The matters were heard together. The appeal on the grounds that there was no common intention, the presumption of possession had been rebutted, and that the presumption of knowledge had been rebutted, failed. The criminal motion was dismissed on the ground that the correct procedure to initiate that challenge was by way of an application under O 53 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) invoking the High Court’s supervisory jurisdiction: Muhammad Ridzuan bin Md Ali v Public Prosecutor and other matters [2014] 3 SLR 721.

The applicant then applied for leave to commence judicial review proceedings against the PP, which was denied: Muhammad Ridzuan bin Mohd Ali v Attorney-General [2014] 4 SLR 773 (“Ridzuan (HC)”). The appeal against this decision of the High Court was also dismissed on the ground that the applicant had not established a prima facie case of reasonable suspicion that the PP had breached the relevant standard: Muhammad Ridzuan bin Mohd Ali v Attorney-General [2015] 5 SLR 1222 (“Ridzuan (CA)”).

CM 4

On 28 November 2014, the applicant in CM 4 was convicted of trafficking, by having in his possession for the purpose of trafficking, not less than 45.26g of diamorphine. While the PP’s position was that the applicant had satisfied the Courier Requirement, it declined to issue a certificate of substantive assistance. Accordingly, the sentence of death was pronounced: Public Prosecutor v Mohd...