Yong Vui Kong v Public Prosecutor and another matter

• Judge: Chan Sek Keong CJ
• Judgment Date: 14 May 2010
• Neutral Citation: [2010] SGCA 20
• Citation: [2010] SGCA 20
• Date: 14 May 2010
• Published date: 24 June 2010
• Hearing Date: 15 March 2010
• Plaintiff Counsel: M Ravi (L F Violet Netto)
• Docket Number: Criminal Appeal No 13 of 2008; Criminal Motion No 7 of 2010
• Defendant Counsel: Walter Woon SC, Jaswant Singh, Davinia Aziz and Chua Ying-Hong (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Subject Matter: Courts and Jurisdiction,Criminal Procedure and Sentencing,Words and Phrases,Statutory Interpretation,International Law,Constitutional Law

Chan Sek Keong CJ (delivering the judgment of the court): Introduction

The appellant, Yong Vui Kong (“the Appellant”), was convicted of trafficking in 47.27g of diamorphine, a controlled drug, and sentenced to death (see Public Prosecutor v Yong Vui Kong [2009] SGHC 4). He appealed against the conviction and the sentence, but later withdrew that appeal. Four days before the sentence was to be carried out, he filed Criminal Motion No 41 of 2009 (“CM 41/2009”) seeking leave to pursue his appeal. This court granted him leave to do so (see Yong Vui Kong v Public Prosecutor [2009] SGCA 64). In the present proceedings, the Appellant’s counsel, Mr M Ravi (“Mr Ravi”), has confirmed that the Appellant is appealing against only his sentence, and not his conviction.

The issues raised in this appeal

The general issue in this appeal is whether the mandatory death penalty (“the MDP”) is permitted by the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint). The specific issue is whether the MDP imposed under certain provisions of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed), in particular, is permitted by the Constitution of the Republic of Singapore.

In this judgment, the cases to be considered and the legal points to be discussed relate to different revised editions of both the Constitution of the Republic of Singapore and the Misuse of Drugs Act. For simplicity, we shall hereafter refer to the particular revised edition of the statute that is relevant to the case or legal point being discussed as “the Singapore Constitution” (vis-à-vis the Constitution of the Republic of Singapore) and “the MDA” (vis-à-vis the Misuse of Drugs Act).

The Appellant is challenging the constitutional validity of s 33 read with the Second Schedule to the MDA (collectively referred to hereafter as “the MDP provisions in the MDA”), under which he was sentenced to suffer the MDP. This challenge against the MDP for drug-related offences is not new. It was made in 1980 before the Privy Council in Ong Ah Chuan v Public Prosecutor [1981] AC 648 (“Ong Ah Chuan”) and in 2004 before this court in Nguyen Tuong Van v Public Prosecutor [2005] 1 SLR(R) 103 (“Nguyen”). In both cases, it was contended that the MDP prescribed by the MDA for the offence in question (viz, trafficking in controlled drugs in Ong Ah Chuan and importation of controlled drugs in Nguyen) was unconstitutional because it infringed Arts 9(1) and 12(1) of the Singapore Constitution. In both cases, the constitutional challenge to the MDP was dismissed.

Notwithstanding the decisions in Ong Ah Chuan and Nguyen, both of which affirm the constitutionality of the MDP provisions in the MDA, we gave leave to the Appellant in CM 41/2009 to pursue the present appeal and argue both the general issue and the specific issue delineated at [2] above because Mr Ravi said that he had new arguments based on new materials to show that both Ong Ah Chuan and Nguyen were wrongly decided at the relevant time, and that, today, this court should depart from those decisions and declare the MDP unconstitutional in view of Art 9(1) and/or Art 12(1) of the Singapore Constitution.

We should point out at this juncture that the issue of whether the death penalty per se (ie, the death penalty as a form of punishment for an offence) is unconstitutional does not arise in this appeal since the Appellant (as Mr Ravi has emphasised) is only challenging the constitutional validity of the MDP. It is not surprising that the Appellant has adopted this stance because Art 9(1) expressly allows a person to be deprived of his life “in accordance with law”; ie, it expressly sanctions the death penalty. This precludes the Appellant from challenging the constitutionality of the death penalty per se (see in this regard the observations of the Privy Council in Ong Ah Chuan at 672 as quoted at [20] below). The Appellant has thus chosen to argue that: as the MDP is an inhuman punishment, any legislation that prescribes the MDP as the punishment for an offence (referred to hereafter as “MDP legislation” generically) violates the right to life set out in Art 9(1) and, therefore, is not “law” for the purposes of this provision; MDP legislation is also not “law” for the purposes of Art 9(1) because the term “law” therein includes customary international law (“CIL”), which prohibits the MDP as an inhuman punishment; and the differentia employed in the MDA for determining when the MDP is to be imposed is arbitrary, thus making the MDP provisions in the MDA inconsistent with the right under Art 12(1) of equal protection of the law.

The Appellant’s challenge to the MDP based on Art 9(1) (“the Article 9(1) challenge”) is targeted at the mandatory nature of the MDP. It rests on the premise that, because MDP legislation does not give the court any discretion to decide (in view of the circumstances of the case at hand) whether or not to impose the death penalty, such legislation “treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death” (per Stewart J in Woodson et al v North Carolina 428 US 280 (1976) (“Woodson”) at 304). From this perspective, MDP legislation is regarded as being inhuman and, thus, antithetical to the right to life set out in Art 9(1). The Article 9(1) challenge, if successful, will affect the constitutionality of not only the MDP provisions in the MDA, but also all other MDP legislation, such as: s 302 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Singapore Penal Code”) vis-à-vis the offence of murder; s 4 of the Arms Offences Act (Cap 14, 2008 Rev Ed) vis-à-vis the offence of using or attempting to use arms; s 4A of the Arms Offences Act vis-à-vis the offence of using or attempting to use arms to commit or to attempt to commit an offence listed in the Schedule to the Act; and s 58(1) of the Internal Security Act (Cap 143, 1985 Rev Ed) vis-à-vis the offence of having or carrying, without lawful excuse and without lawful authority, any firearm, ammunition or explosive in a security area (as defined in s 2 of that Act).

In contrast, the Appellant’s challenge to the MDP based on Art 12(1) (“the Article 12(1) challenge”), if successful, will affect only the MDP provisions in the MDA. In other words, the Appellant’s argument on Art 12(1) is specific to the MDP provisions in the MDA and does not impinge on the constitutional validity of other MDP legislation. The Appellant’s submission in this regard is that the MDP provisions in the MDA, in making the quantity of controlled drugs trafficked the sole determinant of when the MDP is to be imposed, draw arbitrary distinctions between offenders who traffic in different amounts of controlled drugs. (In the case of trafficking in diamorphine specifically, the MDP provisions in the MDA state that the MDP applies so long as more than 15g of diamorphine is trafficked. For convenience, we shall hereafter refer to this criterion as “the 15g differentia”.)

Although the Article 9(1) challenge and the Article 12(1) challenge are different in so far as they pertain to two different constitutional provisions, they are at the same time related in that the Appellant does not need to rely on the Article 12(1) challenge if he succeeds on the Article 9(1) challenge. In other words, if the MDP provisions in the MDA violate Art 9(1) because, in making the death penalty mandatory, they lay down an inhuman punishment, they would be unconstitutional regardless of whether or not they also, contrary to Art 12(1), draw arbitrary distinctions between offenders who traffic in different amounts of controlled drugs. For this reason, we shall address the Article 9(1) challenge first before the Article 12(1) challenge.

The Article 9(1) challenge: Whether the MDP is consistent with the right to life in Article 9(1)

To understand the parties’ arguments on Art 9(1) of the Singapore Constitution, it is necessary to appreciate the legal context of those arguments. We shall set out this legal context first, followed by the parties’ arguments and then our decision on the Article 9(1) challenge.

The legal context of the Article 9(1) challenge

Article 9(1) of the Singapore Constitution provides as follows:

No person shall be deprived of his life or personal liberty save in accordance with law.

The expression “law” is defined in Art 2(1) as follows:

“law” includes written law and any legislation of the United Kingdom or other enactment or instrument whatsoever which is in operation in Singapore and the common law in so far as it is in operation in Singapore and any custom or usage having the force of law in Singapore …

In this regard, the expression “written law” means (see likewise Art 2(1)):

… this Constitution and all Acts and Ordinances and subsidiary legislation for the time being in force in Singapore.

Prima facie, the MDA, being legislation in force in Singapore, is “written law” and is thus “law” as defined in Art 2(1); the same applies to other MDP legislation currently in force in Singapore. The meaning of the term “law” was considered by the Privy Council in Ong Ah Chuan and by this court in Nguyen. Before we turn to examine these two decisions, we note in passing that, although Art 2(1) defines the expression “law” to include “custom or usage” (per Art 2(1)), Mr Ravi has not argued that these words are intended to include CIL. If such an argument had been made, we would have rejected it because, in our view, the phrase “custom or usage” in Art 2(1) refers to local customs and usages which (in the words of this provision) “[have] the force of law in Singapore”, that is to say, local customs and usages which are already part of our domestic law.

The decision in Ong Ah Chuan

In Ong Ah Chuan, the appellants were convicted of the offence of drug trafficking and...