Quek Hock Lye v PP

• Jurisdiction: Singapore
• Judgment Date: 29 January 2015
• Date: 29 January 2015
• Docket Number: Criminal Motion No 25 of 2014
• Court: Court of Appeal (Singapore)

Quek Hock Lye

Plaintiff

and

Public Prosecutor

Defendant

[2015] SGCA 7

Chao Hick Tin JA

,

Andrew Phang Boon Leong JA

and

Quentin Loh J

Criminal Motion No 25 of 2014

Court of Appeal

Constitutional Law—Equal protection of the law—Equality before the law—Whether s 27 (6) Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012) inconsistent with Art 12 (1) Constitution of the Republic of Singapore (1985 Rev Ed,1999 Reprint) —Whether classification prescribed by s 27 (6) founded on intelligible differentia—Whether differentia bore rational relation to object of s 27 (6) —Article 12 (1) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) —Section 27 (6) Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012) —Sections 33 B (2) and 33 B (3) Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

Criminal Procedure and Sentencing—Appeal—Applicant sentenced by High Court to mandatory death penalty—Applicant's death sentence affirmed on appeal before passing of Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012) —Applicant applying to Court of Appeal by way of criminal motion to set aside death sentence on constitutional grounds—Whether Court of Appeal should hear criminal motion—Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012)

The applicant was convicted in the High Court on a charge of engaging in a criminal conspiracy to traffic in diamorphine under s 5 (1) (a) read with s 5 (2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the MDA’). He was sentenced to the mandatory death penalty. His appeal against his conviction and sentence was dismissed by the Court of Appeal on 9 April 2012.

On 14 November 2012, Parliament passed the Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012) (‘the Amendment Act’), which made certain changes to the application of the mandatory death penalty for drug offences. In particular, s 27 of the Amendment Act created a transitional framework allowing a person convicted of an offence under s 5 (1) or 7 of the MDA to be sentenced in accordance with s 33 B of the MDA.

Subsequently, the applicant applied to the Court of Appeal by way of criminal motion for an order that his death sentence be set aside and a sentence of life imprisonment be imposed in lieu thereof, on the basis that s 27 (6) of the Amendment Act was inconsistent with Art 12 (1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Constitution’). The applicant's case was that s 27 (6) of the Amendment Act retroactively put some members of the same class (ie, persons convicted of trafficking in more than 15 g of diamorphine and sentenced to death prior to the passing of the amendments by Parliament) in a better position after conviction and sentence, by allowing them to avail themselves of s 33 B of the MDA whereas other members of the same class would remain subject to the mandatory death penalty.

Held, dismissing the application:

(1) The present criminal motion was in substance an attempt to re-open the issue of the applicant's death sentence which had been affirmed by the Court of Appeal. Nevertheless, this court was of the opinion that the criminal motion should be heard, given that it concerned a constitutional issue in relation to a capital offence: at [22] to [24] .

(2) The applicant's arguments would not affect the outcome of his case. The argument that the amendments to the MDA should not apply retroactively would mean that the applicant could not invoke the new law to apply for re-sentencing and his death sentence would remain. Moreover, showing that s 27 (6) of the Amendment Act was inconsistent with the Constitution would only mean that the Amendment Act would be void to the extent of any such inconsistency, and hence that re-sentencing under the Amendment Act would not be available to the applicant who had already been sentenced to the mandatory death penalty: at [25] and [26] .

(3) The test for constitutionality under Art 12 (1) of the Constitution was the ‘reasonable classification’ test. Under this test, a differentiating measure prescribed by legislation would not be inconsistent with Art 12 (1) if it was founded on an intelligible differentia, and that differentia bore a rational relation to the object sought to be achieved by the legislation: at [28] .

(4) The first limb of the ‘reasonable classification’ test was satisfied. The differentia prescribed by s 27 (6) of the Amendment Act related to the requirements specified in s 33 B of the MDA, which were that the offender had to sufficiently prove that his involvement in the offence was restricted to acting as a courier, and that he was suffering from such abnormality of mind as substantially impaired his mental responsibility or that he had received a certificate of co-operation from the Public Prosecutor. These differentia were clearly intelligible: at [29] to [31] .

(5) As for the second limb of the ‘reasonable classification’ test, the differentia in s 33 B of the MDA bore a rational relation to the social object of the MDA, which was to prevent the spread of drug addiction in Singapore by stamping out the illicit drug trade. In relation to s 33 B (3) of the MDA, there was nothing unreasonable in Parliament's decision not to impose the death penalty on an offender who had played a relatively restricted role in the offence and who suffered from such abnormality of mind as substantially impaired his mental responsibility. As for s 33 B (2) of the MDA, there was an obvious relation between the differentia and the object sought to be achieved, which was to reach further into drug networks by obtaining assistance from offenders who had performed a ‘courier’ role in drug operations, and who could furnish a lead to identify the ‘suppliers and kingpins outside Singapore’. The application brought by the applicant had no merit and was accordingly dismissed: at [32] to [38] .

Lim Meng Suang v AG [2015] 1 SLR 26 (folld)

Nguyen Tuong Van v PP [2005] 1 SLR (R) 103; [2005] 1 SLR 103 (refd)

Ong Ah Chuan v PP [1979-1980] SLR (R) 710; [1980-1981] SLR 48 (refd)

PP v Phuthita Somchit [2011] 3 SLR 719 (refd)

PP v Taw Cheng Kong [1998] 2 SLR (R) 489; [1998] 2 SLR 410 (folld)

Quek Hock Lye v PP [2012] 2 SLR 1012 (refd)

Ramalingam Ravinthran v AG [2012] 2 SLR 49 (refd)

Tan Eng Hong v AG [2012] 4 SLR 476 (refd)

Yong Vui Kong v PP [2010] 2 SLR 192, CA (refd)

Yong Vui Kong v PP [2010] 3 SLR 489, CA (refd)

Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 12 (1) (consd) ; Art 35 (8)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) ss 139, 187

Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012) s 27 (6) (consd) ;ss 27, 27 (9)

Misuse of Drugs Act (Cap 185, 2008 Rev Ed) ss 33 B (1) (a) , 33 B (1) (b) , 33 B (2) , 33 B (2) (b) , 33 B (3) (consd) ;ss 5 (1) , 5 (1) (a) , 5 (2) , 7, 33, 33 B

Penal Code (Cap 224, 2008 Rev Ed) ss 120 B, 300

Eugene Thuraisingam (Eugene Thuraisingam) and Ker Yanguang (Stamford Law Corporation) for the applicant

Francis Ng and Wong Thai Chuan (Attorney General's Chambers) for therespondent.

Chao Hick Tin JA

(delivering the grounds of decision of the court):

Introduction

1 This was an application by Quek Hock Lye (‘the Applicant’) for an order that the death sentence imposed on him in Criminal Appeal No 20 of 2010 (‘CCA 20/2010’) be set aside and a sentence of life imprisonment be imposed in lieu thereof, on constitutional grounds.

2 The Applicant had been tried and convicted in the High Court on a charge of engaging in a criminal conspiracy to traffic a controlled drug under s 5 (1) (a) read with s 5 (2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (‘the MDA’) (see PP v Phuthita Somchit[2011] 3 SLR 719). The mandatory punishment under the charge was the death penalty. The Applicant's appeal against his conviction and sentence vide CCA 20/2010 was dismissed by this court in Quek Hock Lye v PP[2012] 2 SLR 1012. Subsequently, the Applicant brought the present application to set aside the death sentence imposed on him on the basis that s 27 (6) of the Misuse of Drugs (Amendment) Act 2012 (Act 30 of 2012) (‘the Amendment Act’) is inconsistent with Art 12 (1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘the Constitution’).

3 At the conclusion of the hearing, we dismissed the application. We now give the detailed reasons for our decision.

Background

The arrest

4 On 3 October 2008, the Applicant, a male Singapore citizen who was then 44 years old, was arrested next to his rented vehicle by a team of officers from the Central Narcotics Bureau (‘CNB’). The team of CNB officers proceeded to conduct a raid at the Applicant's residence at a condominium unit in Bedok (‘the Unit’). Numerous items were seized from the Unit, including 124 packets of granular substances, which were subsequently analysed and found to contain a total of not less than 62.14 g of diamorphine, a controlled drug specified in Class A of the First Schedule to the MDA.

5 On the same day (ie, 3 October 2008), the CNB officers also arrested two Thai nationals, Phuthita Somchit (‘Somchit’) and Winai Phutthaphan (‘Winai’). At the material time, Somchit and Winai were residing together with the Applicant at the Unit. Somchit was the Applicant's girlfriend, whereas Winai was a male relative of Somchit.

The High Court trial

6 The Applicant and Somchit were jointly charged with engaging in a criminal conspiracy to traffic in diamorphine, an offence under s 5 (1) (a) read with s 5 (2) of the MDA. While Winai was...