Public Prosecutor v Ahmad Bin Kidam
| Jurisdiction | Singapore |
| Judge | Tan Boon Heng |
| Judgment Date | 16 April 2007 |
| Neutral Citation | [2007] SGDC 113 |
| Court | District Court (Singapore) |
| Year | 2007 |
| Published date | 13 June 2007 |
| Plaintiff Counsel | Wong Kok Weng (DPP) assisted by Lavanyah Veerapathiran (APP) |
| Defendant Counsel | S K Kumar (S K Kumar) |
| Citation | [2007] SGDC 113 |
| 16 April 2007 |
|
District Judge Tan Boon Heng:
A. Introduction
1. The accused filed an appeal against sentence on 12 April 2007 against my refusal on 2 April 2007 to make a constitutional reference to the High Court under s 56A(1) of the Subordinate Courts Act, Cap 321. Following my refusal, the accused took a plea of guilt to the charge. He was consequently sentenced to 7 years of imprisonment and 6 strokes of the cane, the statutory minimum under section 33A(2) of the Misuse of Drugs Act (MDA). I also ordered the sentence to be backdated to the date when he was first remanded.
2. The accused was charged under s 8(b)(ii) read with s 33A(2) of the MDA for having consumed Buprenorphine (a ‘specified drug’) without authorization when he had a previous conviction under section 33A(1) under the same Act. ‘Buprenorphine’ is commonly known as ‘Subutex’.
B. Defence’s Preliminary Objection To The Charge
3. The trial was first scheduled for hearing on 12 March 2007. The Defence Counsel, Mr S K Kumar, raised a preliminary objection to the charge. He submitted that the charge had violated Articles 9(1), 11(1) and 12(1) of the Singapore Constitution. The prosecution then applied for time to respond to the constitutional issues raised. The request was granted and the hearing was postponed to 2 April 2007.
4 Mr Kumar urged me to exercise my powers under s 56A(1) of the SCA that the Ministerial Order to classify Subutex as both a controlled and specified drug under MDA (thereby rendering persons such as his clients liable under section 33A of the Act) had violated:
(a) Article 9(1) of the Constitution, which provides that,
“No person shall be deprived of his life or personal liberty save in accordance with law”.
(b) Article 11(1) of the Constitution, which provides that,
“No person shall be punished for an act or omission which was not punishable by law when it was done or made, and no person shall suffer greater punishment for an offence than was prescribed by law at the time it was committed”.
(c) Article 12(1) of the Constitution, which provides that,
“All persons are equal before the law and entitled to the equal protection of the law”.
Alleged violation of Articles 9(1) & 12(1) of the Constitution
5. Mr Kumar argued that it was arbitrary and unfair to classify Buprenorphine as a controlled drug on 14 August 2006 and a specified drug on 1 October 2006. Before those dates, Subutex was touted as a panacea for weaning drug addicts away from opiate addiction. Relying on the Government’s assurances, the accused had consumed Subutex and became dependent on it. In fact, the accused was not informed and was never aware that he could be addicted to Subutex, or that its use would subsequently be illegal. Hence, to treat the accused as a repeat offender when he is being charged for consuming Subutex for the first time would run contrary to ‘legitimate expectations’, a principle which is enshrined in Article 9(1).
6 Mr Kumar further argued that the Minister, by virtue of the powers granted to him under s 59 of the Act, making Subutex a specified drug had also infringed Article 12(1) as the accused who was a first offender of Subutex, was now charged as a repeat offender under s 33A(2) and was therefore denied the equal protection of the law.
Alleged contravention of Article 11(1) of the Constitution
7. Mr Kumar further argued that it was not appropriate to prosecute the accused under section 33A of the Misuse of Drugs Act as he would be made liable to suffer enhanced punishment when it was in fact their first conviction for Subutex consumption. To support this contention, Mr Kumar relied on the English Court of Appeal decision in R v Offen [2001] 1 Cr. App. R. 372 as a relevant and persuasive precedent.
C. The Prosecution’s Response
8. In relation to Article 9(1), the Prosecution noted that Mr Kumar was neither alleging any procedural unfairness nor any breach of the rules of natural justice that would have prejudiced the accused. Rather, the Prosecution observed that Mr Kumar was arguing a matter on social policy i.e. whether it is against the Constitution to sentence Subutex consumers to enhanced punishments under section 33A of the MDA when Subutex was legally consumable in Singapore till 14 August 2006 and thereafter, declared a controlled drug and subsequently listed as a specified drug under Class “A” with effect from 1 October 2006.
9. The Prosecution explained that Subutex was to be administered by doctors to help addicts to wean off opiates. Subutex had to be placed under their tongue but they injected it intravenously as a cocktail with other drugs without the supervision of the doctor just to get a high. Because of a spate of deaths from the abuse of Subutex, the latter was declared a controlled drug on 14 August 2006 and a specified drug on 1 October 2006. To assist those who had been dependent on Subutex, they could register themselves for the Subutex Voluntary Rehabilitation Programme (SVRP). The accused did register for the programme but did not complete it.
10. The Prosecution added that it was then widely publicized that those who had not been registered with the SVRP if caught with Subutex will be punished severely. The SVRP lasted from 14 August to 30 September 2006. The Prosecution reiterated to the court that the decision taken on Subutex was a matter of social policy and for parliament to decide.
11. Next, the Prosecution submitted that it failed to see how Mr Kumar could argue that Article 12(1) has been violated in this case. Article 12 only requires that like should be compared with like. The accused had been treated in the same way as all persons in his position. More specifically, he was certainly being treated in the same way as all other accused persons who took Subutex after it was made a specified drug, and who had previous convictions punishable under s 33A(1) of the MDA.
12. Finally, responding to the alleged violation of Article 11(1) with regard to the retrospective increase in punishment, the Prosecution stressed that the enhancement punishment only applied to Subutex consumers after 1 October 2006. It was not a case of the punishment having been changed to apply backwards in time to Subutex consumers for e.g. the amendment in October 2006 to make Subutex a specified drug was made to operate from 14 August 2006 when Subutex was made a controlled drug. This would have the effect of retrospectively increasing sentences for an existing offence when the amendment was made. In this case, the enhanced punishment was made only for offences committed after 1 October 2006.
13. The Prosecution reiterated that Mr Kumar’s preliminary objection that the charge framed against the accused had violated Articles 9, 10 and 11 of the Constitution were wholly misconceived. The Prosecution submitted that if Mr Kumar’s argument is correct and if taken to its logical conclusion, the enhanced penalties under s 33A of the MDA can never apply to any new drugs added onto the controlled and specified drugs under the MDA - that surely could not be the intent of Parliament.
D. Making A Constitutional Reference To High Court
14. Though there is no provision in the SCA equivalent to paragraph 1 of the First Schedule to the Supreme Court of Judicature Act (SCJA) which confers upon the High Court the power of judicial review (see Chan Hiang Leng Colin and Others v PP
“Where in any proceedings in a subordinate court a question arises as to the interpretation or effect of any provision of the Constitution, the court hearing the proceedings may stay the proceedings on such terms as may be just to await the decision of the question on the reference to the High Court”. (emphasis mine)
15. In Chan Hiang Leng Colin & Ors v PP
“… is to prevent unnecessary stays of proceeding each time a party purports to raise a constitutional issue. The merits of the case can then be considered by the district judge before deciding whether such a reference ought to be made to the High Court.”
It is abundantly clear from the decision above that a subordinate court is not obliged to refer a case to the High Court whenever a question arises as to the interpretation or effect of any provision of the Constitution. The court therein not only has to exercise its discretion, it must do so only after considering the merits of the application i.e. whether it is a proper case to make a constitutional reference to the High Court for determination.
16. Subsequent to the High Court’s decision in Chan Hiang Leng Colin & Ors v PP
E. Whether There Is Any Question Arising As To The Interpretation Or Effect Of The Constitution
17. Mr Kumar generally addressed the alleged violation of Articles 9(1) and 12(1) jointly. I shall therefore deal with these two articles first before proceeding to Article 11(1).
Whether there is a question relating to whether the prosecution of the accused was not in accordance with written law such that it was in violation of Article 9(1)
18. The practical effect of...
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