Vasentha d/o Joseph v Public Prosecutor

• Judge: Sundaresh Menon CJ
• Judgment Date: 29 July 2015
• Neutral Citation: [2015] SGHC 197
• Citation: [2015] SGHC 197
• Date: 29 July 2015
• Docket Number: Magistrate’s Appeal No 160 of 2014
• Hearing Date: 23 April 2015
• Plaintiff Counsel: Tito Isaac and Jonathan Wong (Tito Isaac & Co LLP)
• Published date: 04 August 2015
• Defendant Counsel: Marcus Foo Guo Wen (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing -Sentencing

Sundaresh Menon CJ: Introduction

The appellant was apprehended at a car park in Jurong West by officers from the Central Narcotics Bureau (“CNB”) on 5 November 2012. At the time of her arrest, she was in possession of a weighing scale and six packets of brown granular substance weighing 501.91g, which was subsequently found to contain not less than 8.98g of diamorphine. She pleaded guilty to a single charge of possession of 8.98g of diamorphine for the purpose of trafficking under s 5(1)(a) read with s 5(2) of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“the MDA”), and was sentenced by the district judge (“the District Judge”) to 11 years’ imprisonment. She appealed against the sentence on the basis that it was manifestly excessive.

I heard the appeal on 23 April 2015. At the end of the hearing, I reserved judgment as I had some concerns. It struck me that the sentencing precedents had tended to focus very much on the harm caused by the offence by reference to the quantity of the drugs involved, with little if any attention paid to the culpability of the offender. I raised this during the hearing, and at the end of the oral arguments, I invited counsel to reflect on this and to submit further arguments within a week if they had anything further to add. Both counsel did so on 29 April 2015. Having considered the matter, I am satisfied that in the circumstances of the present case the sentence imposed by the District Judge was manifestly excessive. I therefore allow the appeal and reduce the sentence to a term of imprisonment of 8 years for the reasons that follow.

Background facts

The appellant was a housewife at the time of her arrest. She has three children. On 6 or 7 September 2012, while the appellant was heavily pregnant with her third child, her husband was arrested for a drug-related offence. On or about 18 October 2012, the appellant received a call on her husband’s handphone, her husband being in prison at the time. The caller was a person known as “Muru”. Later that day, Muru delivered some drugs to the appellant for sale, telling her that she would be contacted through her husband’s handphone by persons wishing to take delivery of some of the drugs he had passed to her. Muru told her to take her time to sell the drugs before paying him for it.

Between 18 October and 5 November 2012 (which was the day she was arrested), the appellant delivered or sold various quantities of drugs to six individuals, identified only as “Bob”, “Kak”, “Kadir”, “M Rajan”, “Aja” and “Sam”. Some of them paid for the drugs they took, while others did not. The appellant claimed that she had received a total of $20 from all these deliveries, and this was not challenged by the Prosecution.

The District Judge sentenced the appellant to 11 years’ imprisonment (see Public Prosecutor v Vasentha d/o Joseph [2014] SGDC 315 (“GD”)). He considered that deterrence was the primary sentencing consideration in such cases. He also relied on the table of sentencing precedents for cases involving trafficking or importation of diamorphine which was set out in Public Prosecutor v Kovalan a/l Mogan [2013] SGDC 395 (“Kovalan”). In particular, it was observed that in Kovalan at [24], the range of sentences for cases involving 8–10g of diamorphine was between 10–20 years’ imprisonment and 7–15 strokes of the cane. He found that the appellant’s mitigation plea was not exceptional. While he accepted that the appellant was a “first offender” insofar as she did not have any past convictions, he concluded that she was an “experienced offender” given that she had been selling drugs to various people prior to her arrest (GD at [22]). He considered this a “significant aggravating factor” (GD at [25]). He acknowledged, however, that the Prosecution had no evidence to suggest that the appellant was part of a syndicate (GD at [25]). The District Judge also gave little weight to the fact that the appellant had pleaded guilty and “assisted the police” in light of the fact that she had been caught red-handed with the drugs in her possession (GD at [23]). He nevertheless accepted that the period of nine months that the appellant spent in remand before she made bail should be “factored into the sentence imposed” (GD at [24]).

As I have noted above, the appellant appealed against the sentence on the basis that it was manifestly excessive.

The drug problem and the legal framework in place to restrict the supply of controlled drugs

The drug problem is a scourge. The binds of addiction make it difficult for those ensnared to break free. Singapore has recognised the evils of drug abuse and enacted legislation to address the problem since the early part of the last century. For instance, the Straits Settlement Deleterious Drugs Ordinance (No 27 of 1910) made it an offence to import, administer or possess any deleterious drugs such as diamorphine. In more recent times, legislation such as the Dangerous Drugs Ordinance (No 7 of 1951) and the Drugs (Prevention of Misuse) Act (Cap 154, 1970 Rev Ed) were passed to address the drug problem. These two pieces of legislation were the predecessors of the MDA which was enacted in 1973.

At the second reading of the Misuse of Drugs Bill in 1973, Mr Chua Sian Chin, then Minister for Home Affairs, explained that the tough penalties for traffickers were there by design in order to suppress the drug trade. He said (Singapore Parliamentary Debates, Official Report (16 February 1973) vol 32 at cols 415–420):

The ill-gotten gains of the drug traffic are huge. The key men operating behind the scene are ruthless and cunning and possess ample funds. They do their utmost to push their drugs through. Though we may not have drug-trafficking and drug addiction to the same degree as, for instance, in the United States, we have here some quite big-time traffickers and their pedlars moving around the Republic selling their evil goods and corrupting the lives of all those who succumb to them.

They and their trade must be stopped. To do this effectively, heavy penalties have to be provided for trafficking. ...

... The existing law on dangerous drugs provides for the offence of trafficking, but there is no distinction as regards the age of the person to whom the drugs are sold. The penalties for the offence of trafficking in the existing law are $10,000 or five years, or both. These penalties are obviously totally inadequate as deterrents ...

Government views the present situation with deep concern. To act as an effective deterrent, the punishment provided for an offence of this nature must be decidedly heavy. We have, therefore, expressly provided minimum penalties and the rotan for trafficking. However, we have not gone as far as some countries which impose the death penalty for drug trafficking.

...

Finally, I wish to state quite categorically here that whatever heavy penalties that are being provided in this Bill, they by themselves are not sufficient to solve the drug problem in Singapore. We shall require all the co-operation from parents, teachers, doctors, social workers and, in fact, the whole public if we are to successfully meet that problem. It is going to be an uphill task all the way. Of course, highly deterrent laws against drug traffickers will help us tremendously in our fight against drug trafficking and addiction.

[emphasis added]

In 1975, the MDA was amended to provide even harsher penalties for drug traffickers. The prescribed minimum and maximum sentences for trafficking in controlled drugs were adjusted upwards; and the death penalty was introduced for trafficking in more than 30g of morphine or 15g of diamorphine (commonly known as “heroin”). At the second reading of the Misuse of Drugs (Amendment) Bill, Mr Chua Sian Chin explained the rationale behind the changes as follows (Singapore Parliamentary Debates, Official Report (20 November 1975) vol 34 at cols 1381–1382):

Heroin is one of the most potent and dangerous drugs. In the first half of 1974 only nine out of 1,793 drug abusers arrested consumed heroin. In the corresponding period this year 1,007 out of 1,921 drug abusers arrested consumed heroin. Thus the number of heroin abusers arrested increased by almost 112 times in 12 months. This is an explosive increase by any reckoning. Equally significant is the fact that the number of traffickers arrested for dealing in heroin had also increased from six in the first half of 1974 to 26 in the corresponding period this year.

These statistics show clearly that existing penalties under the Misuse of Drugs Act, 1973, have not been a sufficient deterrence to traffickers. …

Clause 13 of this Bill, therefore, seeks to amend the Second Schedule of the Misuse of Drugs Act, 1973, so that the death penalty will be imposed for the unauthorised manufacture of morphine and heroin irrespective of amounts involved. The death penalty will also be imposed for the unauthorised import, export or trafficking of more than 30 grammes of morphine or more than 15 grammes of heroin.

[emphasis added]

Later, in 1977, Mr Chua Sian Chin clarified that the harsh penalties for drug traffickers were underpinned by considerations of both general and specific deterrence: Singapore Parliamentary Debates, Official Report (27 May 1977) vol 37 at cols 34–35.

The MDA was subsequently amended several times to provide stiffer penalties for trafficking in controlled drugs such as cannabis mixture, methamphetamine (commonly known as “ice”) and ketamine (see Misuse of Drugs (Amendment) Act (Act 40 of 1993); Misuse of Drugs (Amendment) Act (Act 20 of 1998) and Misuse of Drugs (Amendment) Act (Act 2 of 2006)). These amendments were necessitated by changes in the local and global drug situation (including the emergence of new synthetic drugs) and they seek to ensure that we can continue to effectively curb drug abuse and drug trafficking in Singapore.

A “key pillar” of our drug control strategy...