Public Prosecutor v Adnan bin Kadir

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 28 June 2013
• Neutral Citation: [2013] SGCA 34
• Court: Court of Appeal (Singapore)
• Docket Number: Criminal Reference No 3 of 2012
• Published date: 11 July 2013
• Year: 2013
• Hearing Date: 04 February 2013
• Plaintiff Counsel: Lee Lit Cheng and Wong Woon Kwong (Attorney-General's Chambers)
• Defendant Counsel: Abraham Vergis and Clive Myint Soe (Providence Law Asia LLC)
• Subject Matter: Criminal Law,Misuse of Drugs Act
• Citation: [2013] SGCA 34

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

This criminal reference arose from a decision of the High Court in Adnan bin Kadir v Public Prosecutor [2012] SGHC 196 (“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 the accused imported the controlled drug for the purpose of trafficking.

[emphasis in original]

Background

The Respondent, Adnan bin Kadir, pleaded guilty in the District Court to importing 0.01g of diamorphine (a Class A controlled drug), which is an offence under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”). Section 7 states:

Import and export of controlled drugs 7. Except as authorised by this Act, it shall be an offence for a person to import into or export from Singapore a controlled drug.

In mitigation, the Respondent 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 5 years’ imprisonment and 5 strokes of the cane (as prescribed under s 33 read with the Second Schedule of the MDA). This was on account of the Respondent’s lack of antecedents, his early plea of guilt, and the relatively small amount of drugs involved. With his consent, a second charge of importing methamphetamine was taken into consideration for the purpose of sentencing.

The Respondent then appealed against the sentence imposed. To support his appeal, he filed a mitigation plea in which he reiterated that he had brought the drugs into Singapore for his own consumption. The High Court held that s 7 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 effect of the Judgment is that for there to be an offence under s 7, the Prosecution must also prove, in addition to the act of importing, that the drugs were imported for purposes of trafficking.

Our decision Setting the scene

The answer to the Question hinges on how the word “import” in s 7 should be interpreted. The starting point for construing the word “import” is the Interpretation Act (Cap 1, 2002 Rev Ed) (“the IA”). Section 2(1) of the IA states:

Interpretation of certain words and expressions 2.—(1) In this Act, and in every written law enacted before or after 28th December 1965, the following words and expressions shall … have the meanings respectively assigned to them unless there is something in the subject or context inconsistent with such construction or unless it is therein otherwise expressly provided: … “import”, with its grammatical variations and cognate expressions, means to bring or cause to be brought into Singapore by land, sea or air; …

Thus, s 2(1) of the IA gives the word “import” its plain ordinary meaning, viz, the bringing of an object into the country. This definition does not require that the object must be brought into Singapore for any particular purpose before it would qualify as an act of importation. Therefore, if this is the correct interpretation of the term “import”, then the answer to the Question would be “No”.

Section 2(1) states that the definitions in the IA shall apply unless the written law expressly provides otherwise or unless “there is something in the subject or context inconsistent with such construction”. Since the MDA does not expressly assign a different meaning to the word “import”, the key question is whether the meaning given by the IA is inconsistent with the subject or context of the MDA.

What does “subject or context” mean? The word “context” is defined by the learned author of Bennion on Statutory Interpretation (LexisNexis, 5th Ed, 2008) as follows (at p 588):

For the purpose of applying the informed interpretation rule, the context of an enactment comprises, in addition to the other provisions of the Act containing it, the legislative history of that Act, the provisions of other Acts in pari materia, and all facts constituting or concerning the subject-matter of the Act.

This broad definition is consistent with s 9A(2) of the IA, which allows courts to consider any extrinsic material that would assist in ascertaining the meaning of a statutory provision. We would therefore adopt this definition in relation to the word “context” in s 2(1) of the IA As for the word “subject”, it is clear that the MDA is a law enacted by Parliament as a demonstration of Singapore’s determination (and in fulfilment of her international obligations) to suppress the illicit importation into and exportation from Singapore of controlled drugs and the illicit trafficking of the same. In the words of the Privy Council in Ong Ah Chuan and another v PP [1979-1980] SLR(R) 710 (“Ong Ah Chuan”) at [38], it is a law “to prevent the growth of drug addiction in Singapore by stamping out the illicit drug trade”.

The question then is whether there is anything in the MDA, or the relevant extrinsic materials, that is 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. In deciding this question, three things must be borne in mind.

First, s 2 of the Dangerous Drugs Act (Cap 151, 1970 Rev Ed) (“the DDA”), which was one of the predecessors of the MDA, defined “import” as “to bring, or to cause to be brought into Singapore by land, air or water, otherwise than in transit”. However, when the DDA was repealed and the MDA enacted in its place in 1973, Parliament chose to remove this definition without inserting a new one in its place. This suggests that Parliament had consciously decided to let the term be defined in accordance with s 2(1) of the IA. The High Court agreed with this view (at [18] of the Judgment).

Second, Parliament has seen it fit to expressly provide in s 5(2) of the MDA that a person commits the offence of trafficking in a drug if he has that drug in his possession “for the purpose of trafficking”:

Trafficking in controlled drugs 5.—(1) Except as authorised by this Act, it shall be an offence for a person, on his own behalf or on behalf of any other person, whether or not that other person is in Singapore —

(a) to traffic in a controlled drug;

(b) to offer to traffic in a controlled drug; or

(c) to do or offer to do any act preparatory to or for the purpose of trafficking in a controlled drug.

(2) For the purposes of this Act, a person commits the offence of trafficking in a controlled drug if he has in his possession that drug for the purpose of trafficking.

[emphasis added]

As the Deputy Public Prosecutors (“the DPPs”) have submitted, if Parliament had intended that for importation to be an offence under s 7 there must also be an intent to traffic, it could easily have made this clear by including words such as “for the purpose of trafficking” in s 7, as was done in s 5(2) above. However, that was not done.

Third, the word “import” appears in no fewer than 72 statutes, and in a significant number of these, Parliament gave “import” a custom definition that is different from that in the IA. In some statutes, “import” was expressly defined to exclude the bringing of goods into Singapore for a particular purpose. For example, in the Sale of Drugs Act (Cap 282, 1985 Rev Ed), “import” is defined in s 2 as follows:

“import”, with its grammatical variations and cognate expressions, means to bring or cause to be brought into Singapore by land, water or air from any place which is outside Singapore but does not include the bringing into Singapore by water or air of any goods which it is proved to be intended to be taken out of Singapore on the same vessel or aircraft on which they were brought into Singapore without any landing or transhipment within Singapore; ...

[emphasis added in italics and bold italics]

We would also refer to the Trade Marks Act (Cap 332, 2005 Rev Ed), where the word “import” is not defined in the statute but the offence-creating section specifies that importation is only an offence when done for a particular purpose:

Importing or selling, etc., goods with falsely applied trade mark 49. Any person who —

(a) imports into Singapore for the purpose of trade or manufacture ;

...

any goods to which a registered trade mark is falsely applied shall, unless he proves that —

(i) having taken all reasonable precautions against committing an offence under this section, he had, at the time of the commission of the alleged offence, no reason to suspect the genuineness of the mark and on demand made by or on behalf of the prosecution, he gave all the information in his power with respect to the persons from whom he obtained the goods; or

(ii) he had acted innocently,

be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 for each goods or thing to which the trade mark is falsely applied (but not exceeding in the aggregate $100,000) or to imprisonment for a term not exceeding 5 years or to both.

[emphasis added in bold and bold italics]

Thus, where Parliament intended for a different definition of import to apply, or where it wished to restrict the scope of the offence of importation, it has made this clear in the...