Public Prosecutor v Ooi Joo Keong

CourtMagistrates' Court (Singapore)
JudgeRichard Magnus
Judgment Date29 October 1996
Neutral Citation[1996] SGMC 1
Citation[1996] SGMC 1
Publication Date11 April 2007
Plaintiff CounselWinston Cheng (Deputy Public Prosecutor)
Defendant CounselJames Masih

29 October 1996

Richard Magnus, Senior District Judge

The Charge

The Appellant pleaded guilty to and was convicted of the following offence on the 18th of August 1996:

Mac 7241/95 (Charge P1A)

"You,

Ooi Joo Keong, M/25 yrs,

NRIC No. 7031905E

are charged that you, on about the 29th day of March 1996 at Singapore, did consume a controlled drug specified in Class A of the First Schedule of the Misuse of Drugs Act, Chapter 185, to wit, N, α-dimethyl-3, 4-Methylenedioxyphenethylamine (Ecstasy) without authorisation under the said Act or Regulations made thereunder and thereby committed an offence under Section 8(b) and punishable under Section 33 of the Misuse of Drugs Act, Chapter 185."

The Sentence

2 The Court sentenced the Appellant to serve 12 months' imprisonment. He now appeals against this sentence.

The Facts

3 The matter arose out of a complaint by one Ng Teck Chung, a Narcotics Officer currently attached to the Supervision Division of the Central Narcotics Bureau (CNB). The Appellant was arrested at Sparks Disco at Ngee Ann City on the 29th of March 1996 at about 12.15 am by the Complainant, together with a party of CNB officers led by Inspector Patrick Lim. At the CNB Headquarters, the Appellant was subjected to a urine test. Two bottles of urine specimen were obtained from him, and marked and sealed as CNB-80-3-96 in his presence. On the same day, the two bottles were sent to the Department of Scientific Services (DSS) for analysis. On the 25th of April 1996 and the 7th of May 1996 respectively, the DSS issued Certificates under the Misuse of Drugs Act bearing Lab No: 96020977 and Lab No: 96026031 stating that the urine specimen marked CNB-80-3-96 was found to contain N, α-dimethyl-3, 4-Methylenedioxyphenethylamine.

Submissions On Sentence

4 The instant case was the first consumption of ecstasy case under section 8(b) Misuse of Drugs Act in which a District or Magistrate Court has invited full submissions from both the prosecution and defence on the sentencing approach for such an offence. The submissions addressed the effects of consuming ecstasy, the crime trend for this offence and the sentencing principles that the Court should take for such an offence. The Court in this regard referred to both the learned Deputy Public Prosecutor and Defence Counsel several cases involving the abuse of ecstasy decided in the United Kingdom, Hong Kong and the United States of America. These cases were:

(a) John Barry Warren & Geoffrey Terence Beeley [1996] 1 CR. App. R (S) 233.

(b) John Uzu Aramah [1994] 16 Cr. App. R (S) 211.

(c) Jose De Jesus Aranguren [1994] Cr. App. R 347.

(d) Darren Forsdick [1966] 1 CR. App. R (S) 300.

(e) Michael James Slater & Steven Michael Scott [1995] 16 CR. App. R(S) 870.

(f) Paul Anthony Jones [1994] 15 Cr. App. R (S) 856.

(g) The Queen v Sean Dullage, The Queen v Dominic Way (Magistracy Appeal No 319/1996) ( unreported: judgement of the Hong Kong Appeal Court delivered on 13 June 1996).

(h) United States of America v Giorgio Piaget 915 F. 2d 138.

Both the learned Deputy Public Prosecutor (DPP) and Defence Counsel were granted three weeks to study these cases and make the submissions. At the hearing of the case, the learned DPP applied for a deterrent sentence to be imposed on the Appellant for various reasons. The learned Defence Counsel agreed, rightly, that a deterrent sentence should be imposed. He submitted however that "in the case before [the Court], punishment of a fine and/or a prison term of between 2 weeks and 3 months would normally serve as sufficient punishment for the present abusers and as a deterrent for future abusers". The learned Defence Counsel also contended that :

"[I]n the present case, considering this is a comparatively new drug on the scene and that publicising of the abuse of this drug has only recently been introduced through the media it is submitted that punishment within the range of 1 week to 2 weeks ought to be sufficient punishment for a first time abuser of this drug."

5 In sentencing the Appellant, the Court had regard to the submissions of the learned DPP and Defence Counsel, the plea of guilty of the Appellant at the first opportunity, his plea in mitigation, his age and the following factors.

Prevalence Of Offence Of Consumption Of Ecstasy In Singapore

6 There was uncontroverted evidential basis before the Court, tendered by the learned DPP, that the offence of consumption of ecstasy was prevalent in Singapore. The Court therefore directed its mind to the relevant sentencing principles. Chief Justice Herron sitting in the New South Wales Court of Criminal Appeal in R V Cuthbert [1967] 2 NSWR 329 at page 333 observed that "prevalence of crime of a certain class is a valid criterion when punishment is to be assessed". Where the instant offence is prevalent, this factor is regarded as a circumstance of aggravation - see Edward Arthur Ferret (1987) 24 A Crim R 161 and Justin Gerald Baldwin (1988) 39 A Crim R 465. As McGarvie J pointed out in Bateman 29/6/77 Court of Criminal Appeal in Victoria, referred to in paragraph 15.305 of the Victorian Sentencing Manual (1991), the prevalence of an offence means that it is open to a judge to impose a sentence for such a crime which is heavier than otherwise would be imposed.

7 Lord Taylor CJ in Cunningham (1993) 14 Cr App Rep (S) 444 was also of the view that prevalence was a legitimate sentencing consideration and linked it to general deterrence. Although His Lordship was then concerned with the English Criminal Justice Act 1991, his views are nevertheless valid generally:

"The seriousness of an offence is clearly affected by how many people it harms and to what extent For example, a violent sexual attack on a woman in a public place gravely harms her. But if such attacks are prevalent in a neighbourhood, each offence affects not only the immediate victim but women generally in that area, putting them in fear and limiting their freedom of movement. Accordingly, in such circumstances, the sentence commensurate with the seriousness of the offence may need to be higher there than elsewhere." (emphasis added).

8 The Court adopted these sentencing principles. It was a question of fact for the Court whether the offence of consumption of ecstasy was prevalent. The learned Deputy Public Prosecutor had adduced official statistics which were not challenged by the Defence.

9 Ecstasy abuse in Singapore emerged two years ago. The CNB mounted two operations, Operation Pandora in March 1996 and Operation Nighthawk in June 1996. In the first operation, a key ecstasy supplier was arrested with a total of 1010 ecstasy pills. In the second operation, the CNB broke a drug syndicate which obtained its supplies of ecstasy pills from Thailand and Malaysia. A total of twelve ecstasy traffickers had been arrested thus far. The largest single seizure of 35,266 ecstasy pills with a street value of $2 million were from air compressors at Changi Airport. These pills were believed to have originated from Holland. The Learned DPP went on to say:

"The overall drug trend in Singapore indicates that the total number of prosecutions (for all types of drugs) has increased since the year 1993. Annexure A [in exhibit F] shows that 1192 drug offenders were arrested in 1995 as compared to 939 cases in 1994 and 644 cases in 1993. In fact the number of prosecutions in 1995 was almost double that of the 685 prosecuted in 1991.

Annexure B indicates the breakdown of the prosecution cases. Prosecutions for consumption, possession and trafficking all registered an increase. The number of drug offenders prosecuted showed an upward trend.

Annexure C reveals a three fold increase in the prosecution of drug offenders for consumption of drugs from 60 in the second half of last year to 193 this year. In the second half of 1995, 60 cases of consumption were prosecuted. However, in the first half of 1996, there were 193 of such cases, an increase of 133 cases. Out of these 133 cases, 110 cases were Ecstasy cases.

It is also revealed that out of the total number of persons arrested for Ecstasy offences in the first half in 1996, 114 of them tested positive for Ecstasy of which 102 or 89.5% did not have any previous drug records. This shows that most of these offenders are experimenting drugs for the first time."

10 The Court regarded as an aggravating circumstance the fact that the instant I offence was prevalent. The Court was entitled to look at the official statistics to decide the appropriate sentence. For a local case, see PP v Rajandran [1995] 2 MJ 60. In the Court's view, the real test of the correctness of sentencing in practice is whether it contributes as a major factor towards the maintenance of law and order. The Court would have failed in its duty if it did not recognize the prevalence of this offence. The Court was therefore inclined to impose a sentence which was heavier or higher than would otherwise be imposed.

Other Sentencing Considerations

11 The Court had also directed its mind to the sentencing approach in other jurisdictions for an offence involving the abuse of ecstasy.

12 In the United Kingdom, Lord Taylor, Chief Justice, sitting on appeal with two other judges, in Warren and Beeley [1996] 1 Cr App. R (S) 233 which case carried the headline "Sentencing guidelines for the drug Ecstasy" when it was first reported in The Times, 4 July 1995 took the firm view, at pages 236 and 237, that:

"...the tariff in regard to offences concerning Ecstasy will be maintained substantially at the same levels as in relation to the...

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