Public Prosecutor v Johari Bin Kanadi and Another

• Jurisdiction: Singapore
• Judge: Kow Keng Siong
• Judgment Date: 04 April 2007
• Neutral Citation: [2007] SGDC 90
• Published date: 26 April 2007
• Court: District Court (Singapore)
• Plaintiff Counsel: DPP Wong Kok Weng & Insp Allaudeen Sheikh
• Defendant Counsel: S K Kumar (S K Kumar and Associates)

4 April 2007 Judgment reserved.

District Judge Kow Keng Siong:

The appeals & the charges

1. This Judgement relates to separate appeals against my decision not to file a constitutional reference under section 56A(1) of the Subordinate Courts Act.

2. The first appeal was filed by Mr Johari bin Kanadi (MA No. 56/2007), who was charged under section 8(b)(ii) read with section 33A(2) of the Misuse of Drugs Act for having consumed Norbuprenorphine (a ‘specified drug’ under the 4^th Schedule of the Act) without authorization when he had a previous conviction under section 33A(1) under the same Act.

3. The second appeal was filed by Mr Bahtiar bin Mohd Rahim (MA No. 57/2007), who was charged under section 8(b)(ii) read with section 33A(1) of the Misuse of Drugs Act for having consumed Buprenorphine (a ‘specified drug’) without authorization.

4. Both accused persons were represented by Mr S K Kumar.

Preliminary objection

5. At the outset of the accused persons’ proceedings before me, Mr Kumar –

(a) objected to his clients’ prosecution under section 33A of the Misuse of Drugs Act, and

(b) applied for their proceedings to be stayed so that the court might refer constitutional questions to the High Court under section 56A(1) of the Subordinate Courts Act.

The decision and sentences

6. After hearing submissions, I dismissed Counsel’s application.

7. After my ruling, both accused persons decided to plead guilty to their respective charge and admitted to their respective Statement of Facts without qualification.

8. I eventually sentenced both accused persons to the mandatory minimum punishment prescribed for their respective offence –

a. Mr Johari bin Kanadi: 7 years’ imprisonment and 6 strokes of the cane;

b. Mr Bahtiar bin Mohd Rahim: 5 years’ imprisonment and 3 strokes of the cane.

9. I also –

a. ordered their sentences to be backdated to the date when they were first remanded, and

b. on Mr Kumar’s application, stayed the execution of their caning sentence pending the outcome of this appeal.

10. Since it was my dismissal of Mr Kumar’s section 56A(1) application that had precipitated the current appeals, this Judgement shall focus on my reasons for coming to that decision. As a preliminary, I wish to state that I have used ‘Norbuprenorphine’ and ‘Buprenorphine’ interchangeably with ‘Subutex’, the name by which the drugs are commonly known as.

Section 56A(1) of the Subordinate Courts Act

11. I shall start with section 56A(1). That provision states that –

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 added)

12. It is evident that section 56A(1) was enacted to ensure that the appropriate forum determines constitutional issues.[note: 1]In this regard, it may be noted that –

a. a subordinate court has limited jurisdiction, and

b. there is no provision in the Subordinate Courts Act equivalent to para 1 of the First Schedule to the Supreme Court of Judicature Act which confers upon the High Court the power of judicial review : Chan Hiang Leng Colin and Others v PP [1994] 3 SLR 662, [1994] SGHC 207 @ para 8.

13. It is also clear from section 56A(1) 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 has a discretion. In Chan Hiang Leng Colin and Others v PP [1994] 3 SLR 662, [1994] SGHC 207 @ para 10, the High Court explained that the purpose of this discretion –

… 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.

14. The High Court had since clarified that a subordinate court may decline to exercise its discretion under section 56A(1) if the issues raised –

a. are not shown to be new or difficult points of law in the interpretation and application of the relevant constitutional provisions: Liong Kok Keng v PP [1996] 3 SLR 263, [1996] SGHC 162 @ para 10 & 11; Kok Hoong Tan Dennis and Others v PP [1997] 1 SLR 123, [1996] SGHC 254 @ para 17; Ang Cheng Hai & Ors v PP [1995] SGHC 97 @ para 14; or

b. are not of sufficient importance: Kok Hoong Tan Dennis and Others v PP [1997] 1 SLR 123, [1996] SGHC 254 @ para 17.

Basis of preliminary objection

15. Mr Kumar submitted that I should exercise my powers under section 56A(1) in the present case on the basis that the Ministerial Order to classify Norbuprenorphine and Buprenorphine as both controlled and specified drugs under the Misuse of Drugs Act (thereby rendering persons such as his clients liable under section 33A of the Act) had contravened –

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.

16. Mr Kumar’s reasoning was as follows:

a. Alleged contravention of Articles 9(1) & 12(1): It was arbitrary and unfair to classify Norbuprenorphine and Buprenorphine as (i) controlled drugs on 14 August 2006 and (ii) specified drugs 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 persons had consumed Subutex and became addicted to it. According to Mr Kumar, the accused persons were not informed that Subutex was addictive, or that its use would subsequently be criminalized.[note: 2]

b. Alleged contravention of Article 11(1): It was also not appropriate to prosecute the accused persons under section 33A of the Misuse of Drugs Act as they would be made liable to suffer enhanced punishment when it was in fact their first conviction for Subutex consumption.[note: 3] To support this contention, Mr Kumar cited R v Offen [2001] 1 Cr. App. R. 372[note: 4] as a relevant English precedent. I will elaborate on this later in the Judgement.

Merits of the application

17. After careful consideration, I found that the present cases did not raise any question as to the interpretation or effect of Articles 9(1), 11(1) and 12(1) of the Constitution. My reasons were as follows.

Submissions pursuant to Article 9(1)

18. I shall first deal with Article 9(1), which provides that no person shall be deprived of his life or personal liberty ‘save in accordance with law’.

19. In the present cases, there was no evidence or suggestion that the classification of Norbuprenorphine and Buprenorphine as (a) controlled drugs on 14 August 2006 and (b) specified drugs on 1 October 2006 was procedurally flawed or irregular.

20. This of course is not the end of the matter, as Article 9(1) does not confer on the Legislature an unfettered right to revoke liberties by an Act of Parliament. Regularly enacted laws may still be unconstitutional if they –

a. offend the nullum principle as enshrined in Article 11(1): Abdul Nasir bin Amer Hamsah v PP [1997] 3 SLR 643, [1997] SGCA 38 @ para 49; or

b. are discriminatory under Article 12: Taw Cheng Kong v PP [1998] 1 SLR 943, [1998] SGHC 10 @ para 58 & 59.

Submissions pursuant to Article 11(1)

21. In my view, (i) the classification of Norbuprenorphine and Buprenorphine as controlled and specified drugs and (ii) the accused persons’ prosecution under section 33A of the Misuse of Drugs Act did not violate Article 11(1). It is relevant to note that Article 11(1) protects persons from –

(a) the creation of offences and

(b) the enhancement of prescribed punishment for existing offences with retrospective effect.

22. The present cases did not involve either of the above scenarios. It is clear that when Mr Johari bin Kanadiand Mr Bahtiar bin Mohd Rahim consumed Subutex without authorization on 17 January 2007 and 29 December 2006 respectively, such conduct –

a. had already been criminalized for about 5 months since 14 August 2006, when Norbuprenorphine and Buprenorphine were classified as controlled drugs; and

b. were already punishable with enhanced punishment under section 33A for about 3 months since 1 October 2006, when the relevant drugs were classified as specified drugs.

23. In my view, Mr Kumar’s submission that it was unconstitutional for the accused persons to be liable under section 33A when it was their first conviction for Subutex consumption was clearly misconceived.

24. Firstly, Article 11(1) does not offer the sort of protection as contended by Counsel.

25. Secondly, the language of section 33A itself also does not require an accused to have abused of the same type of drug before he can be liable under that provision. As long as (a) an accused has consumed a drug listed in the 4^th Schedule to the Act, and (b) any of the other pre-conditions stipulated in section 33A are triggered, he will clearly be liable thereunder.

26. Thirdly, since Parliament has classified Norbuprenorphine and Buprenorphine as specified drugs, there is little reason why the consumption of such drugs should be treated differently from the consumption of other types of specified drugs for the purpose of section 33A. In Ooi Joo Keong v PP[1997] 2 SLR 68, [1996] SGHC 279, the High Court had reminded that –

14 ... It is generally not for the courts to determine the relative dangers of various drugs, especially when Parliament has, no doubt with the...