Yong Vui Kong v PP

• Jurisdiction: Singapore
• Judge: Steven Chong J
• Judgment Date: 13 August 2010
• Neutral Citation: [2010] SGHC 235
• Published date: 28 April 2011
• Date: 13 August 2010
• Year: 2010
• Hearing Date: 28 July 2010
• Plaintiff Counsel: M Ravi (L F Violet Netto)
• Citation: [2010] SGHC 235
• Defendant Counsel: David Chong SC, Shawn Ho Hsi Ming and Tan Shin Yi (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 740 of 2010

Steven Chong J: Introduction

This is an application by way of an ex parte originating summons pursuant to O 53 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“ROC”) for leave to seek, in essence, a permanent stay of execution on the death sentence passed on the applicant, Mr Yong Vui Kong (“Yong”), because of alleged flaws in the clemency process provided for by Article 22P of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (the “Constitution”). This application raises issues of public importance that hitherto have not been the subject of any earlier judicial pronouncement in Singapore. Specifically, it raises the issue of whether the clemency process is subject to judicial review. The examination of this issue would entail a comparative review of the jurisprudence on this subject in several Commonwealth jurisdictions including England, the birthplace of the “high prerogative of mercy”.

Background The procedural history

This application is the latest legal challenge mounted by Mr M Ravi, Yong’s present counsel, (“Mr Ravi”), on behalf of Yong. It is therefore useful to set out the procedural history for context before going into the merits.

Yong was convicted of trafficking in 47.27g of diamorphine under s 5(1)(a) of the Misuse of Drugs Act (Cap 185, 2001 Rev Ed) and sentenced to death by the High Court on 14 November 2008 (see PP v Yong Vui Kong [2009] SGHC 4). Yong filed a notice of appeal against both conviction and sentence on 27 November 2008 but subsequently had a change of heart, and after notifying the Court of Appeal through his assigned counsel, Mr Kelvin Lim, of his intention to withdraw his appeal on 23 April 2009, he proceeded to do so at the hearing itself on 29 April 2009.

After he withdrew his appeal, Yong petitioned the President for clemency on 11 August 2009 (“the First Petition”). It was around that time that Yong, through his brother, instructed Mr Ravi to take over conduct of his case. Yong’s petition for clemency was rejected by the President on 20 November 2009, and with apparently only four days remaining before the sentence of death was to be carried out, Mr Ravi filed a criminal motion on 30 November 2009 to seek leave to appeal to the Court of Appeal, notwithstanding Yong’s earlier withdrawal. The criminal motion was fixed before a High Court judge, who granted an interim stay of execution and adjourned the matter to be heard by the Court of Appeal. In the meantime, the Attorney-General advised the President to grant a temporary respite against the carrying out of the death sentence on Yong pursuant to s 220(f)(ii) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed), and such order was issued on 3 December 2009. After hearing submissions on 8 December 2009, the Court of Appeal granted Yong leave to appeal against his sentence and a stay of execution.

The appeal was then heard by the Court of Appeal on 15 March 2010. The crucial issue that was argued was whether the mandatory death penalty imposed by the Misuse of Drugs Act was ultra vires the Constitution. In the course of his submissions, Mr Ravi referred, peripherally, to the President’s power to grant clemency under Article 22P of the Constitution (“Article 22P”), and in response, the then Attorney-General, Mr Walter Woon SC, submitted that the President’s power to grant clemency has to be exercised in accordance with the advice of the Cabinet, and the President has no discretion in the matter.

The Court of Appeal delivered its judgment on 14 May 2010 and, in dismissing Yong’s appeal, held that the mandatory death penalty was not unconstitutional. The Court of Appeal also noted that it was unnecessary “to consider Mr Ravi’s submission as to the effect which the President’s power to grant clemency under [Article 22P] has on the constitutionality of the [mandatory death penalty]” (see Yong Vui Kong v PP [2010] SGCA 20 at [121]).

The statements made by the Minister

On 9 May 2010, some days before the Court of Appeal delivered its judgment, local newspapers carried reports quoting Mr K Shanmugam, the Minister of Law and the Second Minister for Home Affairs (“the Minister”) as making the following two statements (collectively “the Minister’s Statement”) in response to a question at a community dialogue session as to whether the Government’s policy on the death penalty for drug offences would change in the future as a result of Yong’s case. The first statement is:

Yong Vui Kong is young. But if we say ‘We let you go’, what is the signal we are sending?

The second statement is:

We are sending a signal to all the drug barons out there: Just make sure you choose a victim who is young, or a mother of a young child, and use them as the people to carry the drugs into Singapore.

Mr Ravi was later quoted in the media as saying his client’s fate had been “poisoned by biasedness (sic)” as a result of the Minister’s Statement Before me it was accepted that, for present purposes, the Minister’s words were accurately reported.

In response, the Ministry of Law issued a press release on 9 July 2010 to explain that the Minister was not commenting on any issue that was being considered by the Court of Appeal and that he was merely commenting on the Government’s legislative policy and whether that policy will change, and the extent to which youthfulness or other personal factors are relevant in the formulation of Government policy to tackle the drug menace.

The issues arising out of the present application

Against this background, this application was brought on 21 July 2010. As required by O 53 r 1(3), the application for leave was served on the Attorney-General, who was represented at the hearing by Mr David Chong SC. Yong is seeking leave to claim the following reliefs: A declaration that under Art 22P of the Constitution, it is the elected President and not his advisors who has the discretion to decide whether to grant Yong’s petition for clemency. A prohibitive order enjoining the elected President from abdicating his authority under Art 22P of the Constitution to the Cabinet. An order enjoining the elected President from fettering his discretion to grant or refuse Yong’s petition for clemency. A prohibitive order enjoining the Director of Prisons from executing Yong and granting Yong an indefinite stay of execution. An order that Yong be entitled to be pardoned or is alternatively entitled not to be deprived of his life because the conduct of the Minister has irreversibly tainted the clemency process with apparent bias. An order that the Cabinet is disqualified from taking further part in the clemency process. An order that Yong is entitled not to be deprived of his life on account of being deprived of the possibility of a fair determination of the clemency process; An order that Yong is entitled to see all the materials that will be before the Cabinet on his clemency petition including, and in particular, the trial Judge’s report, the Chief Justice’s report or other reports of the Appellate Court and the Attorney-General’s opinion, so as to afford him an opportunity to make written representations before any decision is reached. An order that Yong is entitled not to be deprived of his life on account of having suffered grave injustice as a result of the actions of the President and the Cabinet.

The above reliefs can be classified into three categories, with the reliefs under each category sharing a common legal premise: Reliefs (a) to (d) premise that the power to grant pardons under Article 22P is justiciable, and that the discretion to grant pardons resides with the President and not the Cabinet. Reliefs (e) to (i), save for relief (h), premise that the power to grant pardons under Article 22P is justiciable, and specifically is subject to judicial review on the ground of apparent bias, which, I should stress, is the only substantive ground of review put forth by Mr Ravi. Relief (h) stands alone, and premises that Yong has a right to see the materials before the Cabinet or the President, either as an independent right, or as a corollary of a wider right to make representations to the Cabinet or the President in considering whether or not to exercise the power in Article 22P. I should stress that Yong is applying to see the materials on the basis that this is a substantive right by itself. He is not asking for discovery of evidence in pursuit of some other substantive right. In addition to the substantive questions raised by these premises, there are also two preliminary issues, viz: (i) the standard applicable to deciding whether or not leave should be granted; and (ii) whether declaratory relief is available under O 53.

In resisting the application for leave, the overarching argument raised by Mr Chong was that the entire clemency process was not subject to judicial review and therefore the application must fail in limine.

I will address each preliminary and substantive point in turn. I should say that there was absolutely no doubt that Yong, on whom the sentence of death has been imposed, had the requisite standing and interest to bring this application. This was, quite rightly, not disputed by Mr Chong at the hearing.

Before me, it was common ground that the Prison authorities had given Yong until 26 August 2010 to file his fresh petition for clemency. At the end of the hearing, I asked Mr Ravi if there were any considerations of time I should take into account. Mr Ravi quite sensibly took the position that even if I were unable to come to a decision by 26 August 2010, he is likely to advise Yong to file the petition by 26 August 2010 so as to preserve his position. I have therefore prepared this judgment rather urgently, in order that the parties could decide on the next step with all options remaining open.

Threshold test for leave

I first consider the appropriate standard by which I should scrutinise...